Communicated on 12 January 2018
FIRST SECTION
Application no. 47190/12
Dimitrios VASILOPOULOS and others
against Greece
lodged on 19 July 2012
SUBJECT MATTER OF THE CASE
The present application concerns the imposition of a fine in 2006 by the Hellenic Capital Market Commission to the applicants, members of the Board or Directors of the company “TECHNIKI OLYMPIAKI A.E.”, for disseminating false or inaccurate information concerning the shares’ value that could affect their price pursuant to Article 72 § 2 of law no. 1969/1991. In particular, the Hellenic Market Commission considered that the applicants had violated the above-mentioned provision by including in the consolidated annual accounts of years 1999 and 2000 the book values of shares of two subsidiary companies for the whole financial year and not from the date of their acquisition by “TECHNIKI OLYMPIAKI A.E.”.
The applicants lodged an appeal with the Athens Administrative Court of Appeal against the decisions of the Hellenic Capital Market Commission, arguing that they had prepared the consolidated annual accounts in accordance with Article 103 of law no. 2190/1920, which provided for the accounting of the book values of shares (λογιστική απεικόνιση). In 2007, the Court of Appeal dismissed the applicants’ argument and considered that the sanctions were rightly imposed as the applicants had violated their obligation under Article 100 § 3 of law no. 2190/1920 to present in the consolidated accounts the real situation (πραγματική εικόνα) of all the undertakings included in the consolidation. The applicants’ appeal on points of law was dismissed in 2011 by the Supreme Administrative Court.
In the meantime, criminal proceedings had been initiated against the applicants for having deliberately disseminated false or inaccurate information which could have affected the shares’ price, pursuant to Article 72 § 1 of law no. 1969/1991. The applicants were acquitted irrevocably in 2006 by the Athens Three-Member Misdemeanour Court which held that the applicants had not committed the offence of which they were accused, as they had rightly included the book values of the shares of the subsidiary companies for the whole financial year, pursuant to Article 103 § 2 of law no. 2190/1920.
The applicants complain of a violation of their rights under Articles 6, 7 of the Convention and of Article 4 § 1 of Protocol No. 7.
QUESTIONS tO THE PARTIES
1. In the circumstances of the present case, has there been a violation of Article 7 of the Convention? In particular, is Article 7 applicable to the administrative sanctions imposed to the applicants by the Hellenic Capital Market Commission and confirmed by the Court of Appeal and the Supreme Administrative Court? If so, could the applicants foresee, if need be with appropriate legal advice, on the basis of the domestic law (including the provisions of Articles 100 § 3 and 103 § 2 of law no. 2190/1920 as in force at the time), that the way in which they presented the consolidated financial accounts of financial years 1999 and 2000 amounted to a breach of Article 72 § 2 of law no. 1969/1991? Did the relevant provisions on the basis of which the sanctions were imposed on the applicants fulfil the qualitative requirements as have been set out in the Court’s case-law under Article 7 of the Convention (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 99, 17 September 2009)?
2. Have the applicants been tried twice for the same offence, as prohibited by Article 4 § 1 of Protocol No. 7? In particular, did the imposition of the fines imposed on the applicants in the administrative proceedings amount to a “criminal charge”, within the meaning of the Court’s case-law? If so, did the application of that measure as confirmed by the Supreme Administrative Court amount to a duplication of trial (bis) as proscribed by Article 4 of Protocol No. 7 (see A and B v. Norway [GC], no. 24130/11, 15 November 2016, and Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, 30 April 2015)?
3. Were the decisions of the Court of Appeal and the Supreme Administrative Court compatible with the principle of legal certainty embodied in Article 6 of the Convention, in view of the acquittal decision of the Athens Three-member Misdemeanour Court for the same offence (see, for example, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, 20 October 2011)??
4. Have the applicants exhausted the domestic remedies in respect of the above-mentioned complaints?
APPENDIX
Dimitrios VASILOPOULOS is a Greek national who was born in 1948 Spyridon MAGGLIVERAS is a Greek national who was born in 1954 Andreas STEGGOS is a Greek national who was born in 1962 Konstantinos STEGGOS is a Greek national who was born in 1936
Full & Egal Universal Law Academy