ECHR Judgment Soros v. France on Legality Principle

Extract

[...] In fact, it criticizes the applicant for not having shown prudence before investing. Here, the judgment states that beyond knowing what constitutes an offense or not, litigants must prevent the risk of a conviction in case of doubt; they should therefore abstain in case of doubt. In the opposite case, in case of taking a risk, litigants must therefore assume their actions and the decisions of the jurisdictions. According to the court, the applicant should have foreseen a potential conviction, due to his professional quality and previous case law, which raises the question of an ambiguity in the application of Article 7 of the CESDHLF. [...]

[...] However, the ECHR considered that there was no violation of the principle of legality of Article 7 of the ECHR. Beyond the dispute over the foreseeability of the law, the Strasbourg conception of the principle of legality has been the subject of lively criticism regarding the interpretive power of the criminal judge. Indeed, according to Jean-Pierre Marguénaud and Damien Roets, the judgment Soros v. France demonstrates that the Court's jurisprudence tends to transform the principle of legality into a 'principle of legitimacy', by taking into account the determining criterion of the quality and reputation of the applicant before condemning him. [...]

[...] The ECHR had to consider whether a law that did not precisely define the conditions of the offense could give rise, in light of previous case law, to sufficient predictability in accordance with the principle of legality of crimes and penalties. The ECHR states that the previous case law concerned situations quite close to that of the accused. The court considers that one cannot reproach a lack of predictability to the law and that the French State has not violated Article 7 of the ECHR. The ECHR judgment more precisely defines the scope of Article 7 of the Convention, in particular with regard to the requirement of predictability of the law. [...]

[...] However, the Paris Court considered that the applicant had enough information about the project to consider it privileged. He was therefore found guilty of insider trading and sentenced to pay a fine of 2.2 million euros. On 22 December 2003, the European Commission adopted a directive relating to the definition of privileged information, to clarify it. The applicant appeals. By a confirmatory judgment of 24 March 2005, the Paris Court of Appeal takes up the same arguments as the Paris Tribunal. [...]

[...] However, the ECHR lays down the principle that 'given his status and experience, he could not have been unaware that his decision to invest in the shares of bank S could bring him within the scope of the insider trading offense provided for in Article 10-1'. She bases her argumentation on the judgment of the Paris Correctional Court, dated May which convicts a financial journalist for having used privileged information obtained during interviews. The jurisdiction takes into account the professional quality of the applicant to justify that he should have suspected the committed offense. It is therefore legitimate to wonder what the ECHR would have decided if the applicant were not an 'institutional investor'. [...]