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EU law does not preclude Member States from providing for civil proceedings for confiscation which are unrelated to a finding of a criminal offence (ECJ)

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The European Court of Justice in its Judgment in Case C-234/18[1] ruled that EU law does not preclude Member States from providing for civil proceedings for confiscation which are unrelated to a finding of a criminal offence. Such proceedings are not covered by the Framework Decision on the confiscation of property. BP, the Chair of the supervisory board of a Bulgarian bank was subject to criminal proceedings for having incited others, from December 2011 to 19 June 2014, to misappropriate funds belonging to that bank in the sum of approximately €105 million. The criminal proceedings are pending and have not yet given rise to a final judgment. Independently of those criminal proceedings, the Bulgarian Commission for the combatting of corruption and for the confiscation of assets found that BP and members of his family had acquired assets of a considerable value whose origin could not be established. That commission therefore brought civil proceedings before the Sofiyski gradski sad (Sof…

Court rejects complaint about conviction for homophobic hate speech

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In its decision in the case of Carl Jóhann Lilliendahl v. Iceland (application no. 29297/18) the European Court of Human Rights has unanimously declared the application inadmissible. The decision is final. The case concerned the applicant’s conviction and fine for homophobic comments he had made in response to an online article. The Court found that the applicant’s comments had amounted to hate speech within the meaning of its case-law. It accepted the Icelandic Supreme Court’s finding that the comments had been “serious, severely hurtful and prejudicial”, and that the decision which had originally sparked the debate, concerning measures to strengthen education in schools on lesbian, gay, bisexual or transgender matters, had not warranted such a severe reaction. The domestic courts’ decisions in the case, taken after an extensive balancing exercise between the applicant’s right to freedom of expression and the rights of gender and sexual minorities, had therefore been reasonable and j…

Indefinite retention of DNA, fingerprints and photograph of man convicted of drink driving breached his privacy rights

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An important decision was issued recently by the European Court of Human Rights regarding the indefinite retention of personal data (DNA profile, fingerprints and photograph) of a man who had a spent conviction for driving with excess alcohol in Northern Ireland. In the case Gaughran v. the United Kingdom (application no. 45245/15) the Court held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The Court underlined that it was not the duration of the retention of data that had been decisive, but the absence of certain safeguards. In the applicant’s case his personal data had been retained indefinitely without consideration of the seriousness of his offence, the need for indefinite retention and without any real possibility of review. Noting that the technology being used had been shown to be more sophisticated than that considered by the domestic courts in this case, particularly rega…

Seeking justice in multi-jurisdictional fraud, creditors must be prepared for the long haul

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By Chris Iacovides and Andri Antoniou- joint Liquidators* According to a press release issued by the Cypriot police, on 31st January 2020, a 42-year-old Ukrainian national had been arrested in Budapest pursuant to a European arrest warrant, extradited to Cyprus and remanded in custody, in connection with financial fraud totaling $92m, orchestrated through Cypriot-registered companies. The individual arrested was the CFO of Mriya Agro Holding Public Ltd (“Mriya”), the Cypriot holding company of what was once one of Ukraine’s largest agricultural groups. Others wanted in connection with this matter are in hiding in Switzerland, where the authorities are known to be slow in executing international arrest warrants. This is the outcome of a lengthy investigation by the Cypriot police following a criminal complaint made by the Liquidators of Mriya 4 years ago and vindicates what has recently been identified in a report of the Council of Europe’s anti money laundering body, Moneyval, publishe…

ECHR: The pre-trial detention of a judge breached the Convention

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Ιn its judgment (3.3.2020) in the case of Baş v. Turkey (application no. 66448/17) the European Court of Human Rights held: by six votes to one, that there had been a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights as regards the alleged unlawfulness of the applicant’s initial pre-trial detention; unanimously, that there had been a violation of Article 5 § 1 of the Convention on account of the lack of reasonable suspicion, at the time of the applicant’s initial pre-trial detention, that he had committed an offence, and unanimously, that there had been a violation of Article 5 § 4 (right to speedy review of the lawfulness of detention) on account of the length of the period during which the applicant had not appeared in person before a judge. The case concerned the pre-trial detention of Mr Baş, a judge at the time, following the attempted coup of 15 July 2016. The Court found that according to the case-law of the Court of Cassation…

Coronavirus as force majeure event - The impact on contracts

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by George Kazoleas, Lawyer LL.M The rapid spread of coronavirus worldwide has crucial effects in social and economic life. The regularity of transactions has been disrupted and the normal evolution of many aspects of economic and commercial activity has been reversed. According to the World Health Organization, coronaviruses are a large family of viruses that can cause disease in animals or humans. In humans, several coronaviruses cause respiratory infections, influenza and more serious illnesses such as the Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS). The most recently discovered coronavirus causes COVID-19. Coronavirus as force majeure It depends on the circumstances if the spread of the virus can be regarded as a cause of force majeure that prevents or inhibits the fulfillment of contractual obligations. The European Commission states that there is force majeure if the incident or its non-fulfillment "is due to circumstances other than tho…

New Insolvency Measures Introduced by the British Government Bring Relief to UK Companies and their Directors

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By Chris Iacovides & Andri Antoniou* Whilst the UK is taking proactive measures to aid ailing companies and businesses from the aftermath of the coronavirus outbreak, one cannot help but wonder what the Cyprus government will do since the Examinership regime introduced as part of the rescue culture in 2015, failed miserably. The UK may have been slower off the mark than many other countries in their fight against coronavirusnevertheless, the authorities have now ramped up the speed and scale of the measures being implemented to protect their national health system and the economy. On Friday 27 March 2020, the British Government went to the extent of introducing more flexible insolvency procedures to help businesses. According to Alok Sharma, UK’s Business Secretary, the following measures will take effect retrospectively from March 1st for 3 months during the coronavirus pandemic. Under the plans, new restructuring tools will be added to the UK’s Insolvency Framework including: A morat…