CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 25 juin 2009

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }   509 25.06.2009   Press release issued by the Registrar   CHAMBER JUDGMENT LIIVIK v. ESTONIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Liivik v. Estonia (application no. 12157/05).   The Court held unanimously that there had been a violation of Article 7 (no punishment without law) of the European Convention on Human Rights concerning the fact that the applicant, convicted of abuse of office in a privatisation agreement concerning Estonian Railways (“ER”), could not have foreseen under the criminal law applicable at the relevant time that his acts had constituted a criminal offence.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 5,000   euros   (EUR) in respect of non-pecuniary damage and EUR   9,000 for costs and expenses. ( The judgment is available only in English .)   1.     Principal facts   The applicant, Jaak Liivik, is an Estonian national who was born in 1951 and lives in Saku (Estonia). Appointed acting Director General of the Estonian Privatisation Agency in October 1999, Mr Liivik was responsible for its everyday management, including entering into privatisation agreements.   In February 1999 the Estonian Parliament decided to privatise the public limited company AS   Eesti Raudtee, which owned ER. The company, in a difficult economic situation, was in need of investment and the privatisation, carried out via an international tender procedure, was accompanied by considerable political debate as well as by pressure from various stakeholders. Baltic Rail Services OÜ (“BRS”) was ultimately deemed the best bidder and an agreement for ER’s privatisation was signed in April 2001 between the Republic of Estonia, BRS and ER. As Acting Director of the Privatisation Agency, the applicant signed the agreement.   In August 2001 the State, represented by the applicant, agreed to two additional warranties under that agreement in which it accepted liability for claims against ER of an insolvent company as well as for costs relating to five Russian locomotives whose acquisition was at variance with BRS’s privatisation bid.   In September 2001 Mr Liivik was charged under Article 161 of the Criminal Code with abuse of office for acting beyond his authority in assuming financial obligations for the State.   In January 2004 he was convicted as charged and sentenced to two years’ imprisonment, 18 months of which were suspended.   Mr Liivik’s appeals rejected, the domestic courts found that he had caused significant damage: he had jeopardised the State’s assets even though the risks had in the end not materialised; and, as a high-ranking state official, his acts had been incompatible with “the general sense of justice” and had damaged the Republic of Estonia’s international reputation.   On lodging his application, Mr Liivik submitted that ER was a successful company and that the State earned ten times more from its shareholding than it had done previously.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 10 March 2005 and declared admissible on 12 February 2008.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President , Rait Maruste (Estonia), Karel Jungwiert (the Czech Republic), Renate Jaeger (Germany), Mark Villiger (Liechtenstein), Isabelle Berro-Lefèvre (Monaco), Mirjana Lazarova Trajkovska (“the former Yugoslav Republic of Macedonia”), judges , and also Claudia Westerdiek , Section Registrar .   3.     Summary of the judgment [2]   Complaints   Relying on Article   7 (no punishment without law), Article   6   §   1 (right to a fair trial), Article   13 (right to an effective remedy) and Article   17 (prohibition of rights), he alleged in particular that the law on the basis of which he was convicted was not clear and comprehensible.   Decision of the Court   Article 7   The Court found that the interpretation and application of Article 161 of the Criminal Code, the criminal law applicable at the relevant time and the legal basis for the applicant’s conviction, had involved the use of such broad notions and vague criteria that the clarity and foreseeability required of a law by the European Convention had not been met.   According to the wording of Article 161 to be charged with the offence of abuse of office an individual had to have caused “significant damage”. Yet no criteria had been developed for assessing the mere creation of a risk of such damage. Moreover, the applicant had acted under an obligation to privatise ER and had had to balance the risks of proceeding with the privatisation against those of withdrawing from the agreement.   Similarly, the criteria used by the domestic courts to establish that the applicant had caused “significant moral damage” – that he had been a high-ranking state official who had been working in a field attracting great public interest and that his acts had been incompatible with “the general sense of justice” – had been too vague.   Indeed, the Estonian Parliament and Supreme Court have since put in doubt the underlying principles of Article 161, notably they questioned whether the mere risk of damage could be broadly interpreted as “significant damage” and whether the notion of criminal liability causing “significant moral damage” was in conformity with the principle of “no punishment without law”.   The Court therefore concluded that it had not been foreseeable that the applicant’s acts would have constituted an offence under the criminal law applicable at the relevant time, in violation of Article 7.   Other Articles   Given its finding under Article 7, the Court held that it was not necessary to examine the applicant’s complaints under Articles 6, 13 or 17.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone : 00 33 (0)3 88 41 28 30) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.