FIFTH SECTION FINAL DECISION ON THE ELIGIBILITY of Application No.

50425 / 06
by George Soros against France

The European Court of Human Rights (Fifth Section), sitting 31 August 2010 as a
Chamber composed of :
Peer Lorenzen , President,
Renate Jaeger,
Jean- Paul Costa,
Rait Maruste
Isabelle Berro -Lefvre,
Mirjana Lazarova Trajkovska
Ganna Yudkivska , Judges,
and Stephen Phillips , Deputy Section Registrar ,
Given the above application lodged on 13 December 2006
Given the observations submitted by the respondent Government and the
observations in reply submitted by the applicant,
Having deliberated , decides as follows :
FACTS

1 . The applicant, Mr George Soros, is an American citizen, born in 1930 and lives
in New York. He is represented before the Court by Mr A. Soffer , a lawyer in Paris
, New York and Israel. The French Government (" the Government" ) were
represented by their Agent, Ms E. Belliard, Director of Legal Affairs, Ministry of
Foreign Affairs.
A. The circumstances

2 . The facts of the case, as they have been submitted by the parties , may be
summarized as follows .
3 . The applicant company founded in 1988 Q. F., an important stakeholder
investment funds in the American, European and Asian markets . On 12
September 1988, the applicant held a meeting in New York with several
investors. Following this, a Swiss banker , M., asked the applicant if he wished to
meet P. which envisaged with other investors to acquire securities of a major
French bank , S., in order to take control.

4 . The applicant mandata one of his advisers , T. , to consider this proposal. On

14 September 1988 , T. B. met a collaborator P., and P. himself, who gave him the
proposed project in its different branches and objectives P., namely the
acquisition of 35 % stake in the bank S. It was stated to T. that this operation had
the support of the government. No letter of confidentiality of this project was
signed between the participants in the meeting, although the project was not
made known to the general public. On the occasion of contacts continued for ten
days , T. received by facsimile draft agreements from B. However, the applicant
decided not to participate in the takeover of the bank S. as explanations about
the investment strategy and the subsequent management of the bank were
vague and lacked the project , he said, seriously.
5 . September 19, 1988, after refusing the offer of P., the applicant decided to
acquire his company Q. F. a bunch of shares of four French companies recently
privatized , the bank S., for a total of $ 50 million . He left his traders to
determine the place of purchase and the proportions between the companies.
Thus , Q. F. acquired between September 22 and October 17, 1988 , 160,000
shares of the bank S. for $ 11.4 million. Of this amount, $ 7 million were invested
in the French market and 4.4 on the market of the London Stock Exchange .
6 . Between 19 and 27 October 1988 , that is to say, a few days after it acquired
the company Q. F. decided to sell part of the shares of the bank S. , 95 000 of
them . The remaining 65,000 were sold a month later , on 21 November 1988. Q.
F. realized a profit of approximately $ 2.28 million by buying and reselling quickly
these actions , including $ 1.1 million on the French market.
7 . Attempted takeover of the bank was revealed to the public October 28, 1988
by a newspaper article . It failed because of a defense strategy of the bank.
8 . On 1 February 1989 the Securities and Exchange Commission ( SEC ) decided
to investigate the activity of the bank's securities S. between June 1 and
December 21, 1988 to examine whether certain transactions were the result of
insider trading . During her investigation, she questioned the applicant in writing
and T. about the progress of the disputed facts . July 31, 1989 , after the
investigation had been completed, the SEC took a decision on the relevant parts
of the allegations against the applicant are as follows :
" A. There is , in case no precedent for similar situations , the development of
practical and financial structures makes it more and more frequent;

b . Against these practices and these structures , the current wording of Article
10.1 [ of Ordinance No. 67-833 of 28 September 1967 ] , does not, in his eyes ,
trace with certainty border states between licit and illicit ;

c . It is therefore essential that the provisions of Article 10.1 are specified , by

any appropriate means to do so, in order to remove for the future , any
ambiguity in such matters . "

9 . On 31 July 1989, the COB, which had raised other contentious transactions ,
decided to inform the prosecutor of Paris the results of its investigation. By letter
dated September 5, 1989 , the prosecution asked for further clarification from
the SEC on the commission by the applicant of insider trading within the
meaning of Article 10.1 of Ordinance No. 67-833 of 28 September 1967 when
applicable . By letter of 12 September 1989 , the President of the COB replied as
follows:
"I can not and you confirm that , with respect to operations performed by four
individuals [the applicant] , having been expressly invited by [P. ] to join in the
realization of his project , the COB that in the absence of a written rule , a
recognized law or ethics recognized by the profession , including the violation
has been established practice, the beam elements provided by the survey did
not provide him not the case, to trace with certainty the precise boundary
between licit and illicit . "

10 . At that time , the Minister of Finance, Mr. Brgovoy , took measures in order
to bring more clarity to stock trading . He created such a market ethics
committee charged with defining the boundaries between legal and illegal
practices. The commission submitted its report January 10, 1990 (see " Relevant
domestic law and practice " section, 28 and 29).
11 . Following the work of this committee , the Minister of Finance issued an
order July 17, 1990 concerning approval of Regulation No 90/ 08 of the COB on
the use of inside information (see " law and practical part relevant " , 30). This
regulation was intended to clarify the different categories of insiders as well as
behaviors that could be accused. According to the applicant , the adoption of this
text would be consecutive to the present case .
12 . Moreover, the Council of the European Communities adopted a directive
Nov. 13, 1989 intended to clarify and harmonize the Member State level the
notions of "inside information" and " insider" (see " Relevant domestic law and
practice" part , 34).
13 . In a letter dated 15 December 1989, the applicant replied to the questions in
the context of the investigation by the SEC , and tried to justify its investment.
14 . An investigation procedure was opened in 1990 against several persons,
including the applicant, suspected of having committed insider trading taking
advantage of inside information to intervene in the stock market. During this
investigation, which lasted ten years, four judges succeeded . The applicant was
indicted March 19, 1993 . During his single hearing June 30, 1993 , like other

protagonists of this case which his colleague T., he pointed out that the facts
were old and could not remember the exact content of the information it had
been issued concerning the collection of securities contemplated by P.
15 . The applicant and two other co-defendants , was referred to the criminal
court in Paris December 20, 2000 to acquire securities of the bank S. when it had
, by its functions, inside information on the evolution of these securities. The
removal order was based in particular on the statements of Mr. and T.
16 . Before the Tribunal de Grande Instance de Paris , the applicant raised two
objections of illegality of the action. The first was based on the lack of
predictability of the law applicable to insider trading . He argued in particular
that he had never maintained a professional relationship with the bank S.
contrary to the requirements the wording of Article 10.1 of the order of 28
September 1967. The second exception was based on the inability of the court to
determine an equitable having regard to the unreasonable length of the
proceedings , the facts that took place fourteen years ago .
17 . On the merits, the applicant argued that the draft P. had been presented in
very vague terms , that at no time did it was clear that this project was
confidential and that, consequently , he had never considered being a holder of
privileged information , otherwise he would have refrained from investing in this
title. He considered that, given the wording of Article 10.1 of the order of 28
September 1967 the conduct could not be considered objectionable when he had
passed the orders .

RULES OF REASON
18 . In its judgment of 20 December 2002, the court dismissed the first exception
because the insider trading, as it was defined at the time of the facts, did not
require secondary insiders ( ie ie those who, like the applicant, are not officers of
the issuer, but which are considered to have disposed , on the occasion of the
exercise of their profession or duties , insider information ) have been
professional relationship with the issuer . According to the court , it was only
necessary that the applicant had been led by his profession or duties , to know
inside information to be considered a secondary trading. DISINI NANTI BISA
DIKASIH FOOTNOTES UNTUK TERMS NECESSARY
19 . The court then rejected the second plea of illegality in holding that "the
unreasonable length of the proceedings, even if it is likely to cause harm to the
parties, does not affect its validity and provided n ' not entail ipso facto
termination of public action. "
20 . On the merits, the court held that "the applicant had been informed about
the target and the means to carry out the operation, the extent thereof , the
participating investors , the stock pickups , which explained movements recorded
on the title ( ... ) and the project presentation, even if it could evolve, was not

speculative and contain sufficient detail so that we can consider that the
information was privileged . "
21 . The applicant was convicted of insider trading and sentenced to pay a fine of
tort 2.2 million euros (EUR). He appealed against this decision.
22 . On 22 December 2003 , the European Commission adopted a Directive No.
2003/124/EC implementing a previous directive (No. 2003/6/EC ) of the European
Parliament relating in particular to the definition of inside information (see the
"right part and relevant practice ").
23 . In a judgment delivered on 24 March 2005, the Paris Court of Appeal took
the same arguments as the High Court and upheld the judgment in its entirety .
24 . The applicant's appeal , based in particular on the impossibility of knowing in
advance that his behavior was reprehensible, the non-retroactive application of
Directive 2003/6/EC and the no unfairness of the procedure due to the time it
was dismissed June 14, 2006 on the grounds that " the Court of Appeal ,
proceeding by a sovereign assessment of the facts of the case and characterize
in its entirety , both physical and intentional , the offense with which the accused
been convicted (...) , justified its decision . " In contrast, the Supreme Court held
that the acquisition of past on the London stock market securities transactions
could not constitute insider trading by the French national law. It therefore
referred the case to the Court of Appeal of Paris otherwise composed for a
decision again on the amount of the fine.
25 . In a new judgment of 20 March 2007 , the Paris Court of Appeal ordered the
applicant to pay a fine of 940 507.22 for the acquisition of shares of the bank
S. the single market the Paris Bourse .
B. The law and practice relevant
1 . French law
26 . Article 10.1 of Ordinance No. 67-833 of 28 September 1967 ( as amended by
the Law of 22 January 1988 , applicable to the time) , now Article L. 465-1 of the
Monetary and Financial Code, reads as follows :
" Will be punished with imprisonment from two months to two years and a fine of
6000 to 5,000,000 francs , the amount may be increased beyond that figure to
quadruple the amount of profit that may be realized without that the fine can not
be less than the same benefit , or one of these penalties , the persons referred to
in Article 162-1 of Act No. 66-537 of 24 July 1966 on commercial companies as
amended and people have , during the exercise of their profession or duties ,
preferred prospects or condition of an issuer of securities or the prospects of a
security or information a negotiable futures contract , which will be realized, or
knowingly permitted to carry on the market , either directly or through an
intermediary, one or more operations before the public is aware of this
information. INI LEGAL BASESNYA DALAM PROCEEDING

In cases where operations have been conducted by a corporation, the officers of

law or fact that will be criminally liable for offenses committed . "
27 . Article 162-1 of Act No. 66-537 of 24 July 1966 :
"The President , CEOs , executive board members of a company , physical or
legal persons operating in this company as a director or member of the
Supervisory Board and the permanent representatives of legal persons
performing these functions are required under the conditions determined by
decree , to put in registered form or file shares that belong to themselves or their
unemancipated minor children and are issued by the company itself , through its
subsidiaries , by the society of which it is a subsidiary or other subsidiaries of
that company , when these shares are admitted to official listing on stock
exchanges or included in daily record of not admitted to trading values. "
28 . The report of the Committee on Ethics market released January 10, 1990 ,
contains the following passages about the Directive of 13 November 1989 the
Council of the European Communities :
" [This Directive introduces ] a new category of secondary insiders , poorly
explained in French law (...) . While some consider that this category of insiders
could be prosecuted as a " fence " of privileged information, there is currently no
law in France to confirm this analysis. "

29 . As for the principles governing the use and transmission of privileged

information, the report continues:
"Despite considerable efforts and joint legislators and judges , there are still
situations where neither the text [ of the order of 28 September 1967 ] , the
provisions of the European Directive [ 13 November 1989 ] , or the content of the
law does allow us to characterize a priori the illegality of certain behaviors while
professionals may face situations where they need clear and early indications to
exercise their profession in good conditions.

To this end, the Commission (...) has endeavored to clarify this problem of
interpretation of existing provisions , liberating principles that can serve as both
a guide of conduct for professionals, the basis for regulations of authorities
criteria for assessing these behaviors by the authorities responsible for the
control or punish them.
(...)

Principle # 3:

Is wrong transmission or use of inside information for purposes other or to an

activity other than those for which it was provided (...) .
A wide variety of professionals are brought in the course of their business , to
benefit from privileged information about a company : financial intermediaries ,
institutional investors, service providers (...) .
These people , in virtue of their possession of privileged information , [ the
obligation to respect ] Principle No. 3 .
(...)

Another situation is that of professionals ( investors, bankers , for example)

asked to participate in a joint project may cause significant variations in the price
of a security (...) .

If information is collected, these [ professional ] can not use it for purposes other
than those for which they were solicited.

This duty of abstention should not however be general. Business life should not
be blocked by maneuvers of people would reveal their plans to competitors only
to neutralize , from a sufficiently precise information serious and credible .

In general , an analysis grid , issue of American jurisprudence (...) can be used in

many cases. "

30 . COB Regulation No. 90-08 published in the Official Journal 20 July 1990 reads
as follows :
Article 3

"People with inside information due to the preparation and implementation of a

financial transaction shall not exploit for their own account or on behalf of
others , such information on the market and communicate to other purpose or
activity other than that for which it is held . "

Article 4

"People who have been provided inside information in connection with the
exercise of their profession or duties shall not exploit for their own account or on
behalf of others such market information or communicate with other purpose or
activity other than those for which it was provided . "

Article L. 465-1 of the Monetary and Financial Code, resulting in particular Act No.
2001-1062 of 15 November 2001 concerning daily security today reads as
follows:
" A penalty of two years imprisonment and a fine of EUR 1 500 000 , the amount
can be increased beyond that figure, up to ten times the amount of profit that
may be realized without the fine can be less than the same profit, the fact, for
the officers of a corporation referred to in Article L. 225-109 of the Commercial
Code , and for people with , on the occasion of the exercise of their profession or
duties , privileged information or perspectives on the situation of an issuer whose
securities are traded on a regulated market or on the prospects of a financial
instrument admitted to trading on a regulated market, make or permit to carry ,
either directly or through an intermediary, one or more operations before the
public is aware of this information .
Is punished by one year's imprisonment and a fine of 150,000 the fact , for
anyone with the exercise of his profession or duties of inside information on the
prospects or condition of an issuer whose securities are traded on a regulated
market or on the prospects of a financial instrument admitted to trading on a
regulated market to communicate to a third party outside the normal course of
his profession or duties .
Is punished by one year's imprisonment and a fine of 150,000 euros , the amount
may be increased beyond that figure, up to ten times the amount of profit made ,
without penalty may be less than the same profit, for any person other than
those referred to in the two preceding paragraphs , knowingly possessing inside
information on the status and prospects of an issuer whose securities are traded
on a regulated market or on the prospects development of a financial instrument
traded on a regulated market, or make it possible to carry out, directly or
indirectly, any transaction or communicate such information to a third party
before the public 's knowledge. When the relevant information concerning the
commission of a crime or offense , the penalties are increased to seven years '
imprisonment and EUR 1 500 000 if the amount of profits is less than this figure.
"

31. Relevant case law :

Judgment of the Criminal Chamber of the Supreme Court, delivered on 26 June
1995 called the " Southern Beehive "

"Whereas if the provisions of Article 10-1 of the Ordinance of 28 September 1967

, such as Directive No. 89/592/EEC of 13 November 1989 with which they are
compatible, prohibit persons who have , in because of their profession or duties ,
preferred information on the prospects of development of a security , to perform
operations on the market before the public was aware , it is provided that such
information accurate, confidential , likely to influence the course and determining
the value of transactions . "

32 . Code of Criminal Procedure reads as follows :

Article 8
"In terms of offense , the requirement of public action is three full years (...)"

Article 220
(in force at the time of instruction )

"The president of the indictment ensures the proper functioning of firms

instruction jurisdiction of the Court of Appeal. In particular, it satisfies the
conditions of application of paragraphs 4 and 5 of Article 81 and Article 144 and
is working to ensure that the procedures do not suffer any undue delay (...) . "

33 . Article L. 141-1 of the Code of Judicial Organisation :

" The state is obliged to repair the damage caused by the malfunctioning of the
system of justice.

Unless otherwise stated , this responsibility is taken by gross negligence or a

miscarriage of justice. "

2 . Community law

34 . Council Directive 89/592/EEC of 13 November 1989 on the coordination

regulations on insider trading :
Article 1

"For the purposes of this Directive, Inside information : information that has not
been made public of a precise nature relating to one or several issuers of
transferable securities or to one or several transferable securities, which, if it
were made public , would be likely to influence significantly the course of this or
these securities (...) "

Article 2
" 1 . Each Member State shall prohibit any person who (...) because they have
access to this information because of the exercise of his employment , profession
or duties , possesses inside information , to acquire or to sell for their own
account or for the account of others, either directly or indirectly , securities of the
issuer or issuers in this information , exploiting knowingly such inside
information.
2 . Where the persons referred to in paragraph 1 are companies or other legal
persons, the prohibition contained in this section shall apply to individuals
involved in the decision to proceed with the transaction on behalf of the legal
person in question. "

Article 4
"Each Member State shall require the prohibition laid down in Article 2 on any
person, other than those referred to in Article who knowingly possesses inside
information , including the direct or indirect source could being a person referred
to in Article 2 . "

Article 6
'Each Member State may lay down more stringent than those laid down in this
Directive or additional provisions , provided that such provisions are applied
generally (...) . "

Believing that its legislation was in conformity with this Directive , France does
not transposed into national law. In a judgment of 26 June 1995 the Court of
Cassation found compatible with those of Directive internal provisions (see 31
above ) .
35 . Directive 2003/6/EC of the European Parliament and of the Council of 28
January 2003 on insider dealing and market manipulation :
Article 1

"For the purposes of this Directive, by (...) " inside information " shall mean
information of a precise nature which has not been made public, relating, directly
or indirectly, one or more issuers of financial instruments or one or more
financial instruments and which, if made public, would be likely to have a
significant effect on the prices of those financial instruments or on the price of
financial derivative instruments linked to them (...) "

Article 2
" 1 . Member States shall prohibit any person referred to in the second
subparagraph who possesses inside information from using that information by
acquiring or disposing of, or by trying to acquire or dispose of, for his own
account or for the account of others , or directly or indirectly, financial
instruments to which that information relates.

The first subparagraph shall apply to any person who possesses that
information :
a) because of his membership of the administrative , management or
supervisory bodies of the issuer, or
b) due to its participation in the capital of the issuer, or
c) because of its access to information because of his job , profession or duties
(...) . "

Article 14
"Without prejudice to their right to impose criminal sanctions , Member States
shall ensure that , in accordance with their national legislation , appropriate
administrative measures can be taken or administrative sanctions be imposed
against the persons responsible where provisions adopted pursuant to this
Directive (...) . "

36 . Commission Directive 2003/124/EC of 22 December 2003 laying down

detailed rules for the application of Directive 2003/6/EC of the European
Parliament and of the Council as regards the definition and public disclosure of
inside information and the definition of manipulation market :
Article 1

" Inside Information

1 . For the purposes of Article 1 , paragraph 1 of Directive 2003/6/EC ,
information is deemed " precise nature " if it indicates a set of circumstances
which exists or may reasonably be think that there will or an event that has
occurred or is reasonably likely to occur , and if it is specific enough so that we
can draw a conclusion as to the possible effect of this set of circumstances or
event on the prices of financial instruments or derivatives linked to them .
2 . For the purposes of Article 1 , paragraph 1 of Directive 2003/6/EC, the term "
information which, if made public, would be likely to have a significant effect on
the prices of financial instruments or on the price of derivative financial
instruments linked to them " information that a reasonable investor would be
likely to use as part of the basis of his investment decisions. "

37 . Relevant case law :

In the Spector Photo Group NV and Chris Van Raemdonck c / Commissie voor het
Bank - , Financie -en Assurantiewezen ( CBFA ) (Case C-45/08 ) of 23 December
2009 , the Court of Justice of the European Union s case is expressed as follows:
"(...) Admittedly, Article 14, paragraph 1 of Directive 2003/6 does not require
Member States to provide for criminal sanctions against perpetrators of insider
trading but merely state that these States are required to ensure that
"appropriate administrative measures can be taken or administrative sanctions
be imposed against the persons responsible where the provisions adopted
pursuant to [ the ] Directive ," Member States is further required to ensure that
these measures are "effective, proportionate and dissuasive" . However, given
the nature of the offenses and the severity of sanctions that are likely to result ,
such sanctions may be , for the purposes of the application of the ECHR,
qualified criminal sanction ( see, by analogy , judgment of 8 July 1999, Hls /
Commission , C-199/92 P , Rec . p. I- 4287 , paragraph 150 , and Eur. DH stops
Engel et al. Netherlands from 8 June 1976, series A No. 22, 82, ztrk c .
Germany of 21 February 1984 , Series A No. 73, 53, and Lutz c . Germany 25
August 1987, Series A No. 123 , 54) ( .. . ) . "

COMPLAINTS
38 . Relying on Articles 6 and 13 of the Convention, the applicant complained of
not being able to receive a fair trial because of the duration of the investigation
procedure and the whole procedure . He argues that the age of the alleged facts
did not allow him to remember accurately their progress and hindered the
establishment of evidence. According to him , the use of validated by Mifsud c .
France was not effective to the extent that it does not result , either a new trial
or to drop the charges in the event that the holding of a new trial was
unthinkable , as in this case .

39 . Relying on Article 6 1, the applicant complains that the investigating judge

had referred to the criminal court , and he then held, without sufficient evidence.
He criticizes the insufficient motivation of decisions , especially on the
preliminary objections of illegality raised before the domestic courts.
40 . Relying on Article 6 2, the applicant considers that the domestic courts had
violated his presumption of innocence by transferring the burden of proof of his
innocence.
41 . Relying on Article 6 3 d) , it also criticizes the fact that some witnesses
were never interviewed or during training or before the domestic courts .
42 . Relying on Article 7, the applicant complained of the lack of predictability
law against insider trading when committed the acts for which he was sentenced
. He believes that the privileged information was not sufficiently defined and that
the elements of the offense were imprecise .
43 . He also claims that he was denied retroactive Community provisions which
are more favorable to him . It specifically refers to Directive No. 89/592/EEC and
relies essentially on the 2003 laying down detailed rules of Directive No.
2003/6/EC as regards the definition and public disclosure of inside information
and the definition of market manipulation, insofar as these texts more strictly
defined the concept of "inside information" .
44 . Relying on Article 14 in conjunction with the substance of Article 6 2, the
applicant complains that his two co-defendants did not have to bear the burden
of proof in the criminal court and have been released for the benefit of the doubt.

LAW
1 . EQUITY OF THE PROCEDURE
A. The complaint of the length of the proceedings
45 . The applicant considers that the length of the proceedings had infringed its
equity to the extent that it has not allowed him to make several years after the
fact , the evidence of his innocence. He relied on Article 6 1 and 13 of the
Convention , the relevant provisions read as follows:
Article 6
" Everyone has the right to have his case heard fairly (...) by a court (...) , who
will decide (...) the determination of his rights and obligations of civil (...)"
Article 13
"Everyone whose rights and freedoms set forth in (...) Convention have been
violated has the right to grant an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in the
performance of their official duties. "

a) The parties' submissions

46 . The Government pleaded non-exhaustion of domestic remedies recalling
that in Mifsud c . France ((dec. ) [GC], No. 57220 /00, ECHR 2002 -VIII) , the Court
held that a complaint of length of judicial proceedings were to be admissible ,
having been subjected to domestic courts in the context of an action based on
Article L. 141-1 above (see " relevant law and practice" above, 33 section). He
sees no reason to depart from the statement in this case. He also argues that
during the judicial investigation , the complainant has not complained of the
length thereof to the judge or the President of the Indictment Division as Article
220 of the Code of criminal procedure in force at that time would allow.
47 . The Government states that in the event of any condemnation of France on
this point, the applicant can not obtain the cancellation of his conviction, but only
the opening of a new procedure. In this case, the period between the date of the
facts and the new judgment would be even more important.
48 . He also noted that the disappearance of evidence which the applicant
complains is its favorable final insofar as , under French law , it is for the
prosecution to prove the guilt of an accused and not the latter prove his
innocence.
49 . The applicant states that it does not complain about the length of the
proceedings as such , but the consequences of it on his ability to recall facts and
thus to prove his innocence . He intends to argue that the appeal based on
Article L. 141-1 of the Code of Judicial organization is not effective in this case
since it is a purely compensatory remedy that is not likely to remedy the lack of
fairness of the entire procedure and sentencing that followed. It states that the
investment for which he was convicted was a common operation as part of its
daily activity. He hopes to get his conviction set aside because of alleged lack of
fairness . He stated that the investigation procedure was delayed by
international investigations on other co- defendants and the judge would have
had to sever the business to enable it to be held in the shortest time.
b) Findings of the Court

50 . The Court is not called upon to rule on whether the procedure followed in
this case took place within a reasonable time and if the applicant had at his
disposal an effective remedy in this respect , but to examine whether the
passage of time between the alleged acts and the judgment of the applicant
could affect the taking of evidence and the rights of the defense. Therefore , it
will examine this part of the application only in terms of Article 6 1 of the
Convention.

51 . It does not therefore consider it necessary to decide the question on which

the parties disagree about the effectiveness , in this case, the remedy provided
by Article L. 141-1 of the Code of Judicial Organisation , with the grievance
anyway inadmissible for the following reasons.
52 . The Court observes that the applicant was invited for the first time to
respond in writing to questions about the facts at issue in the course of an
administrative investigation by the SEC and in a letter dated December 15,
1989 , he brought specific questions that had been asked. It is only in his second
interview, June 30, 1993 by a judge, the applicant stated that he did not
remember in detail the sequence of events .
53. Thus, in 1989 the applicant could not ignore the fact that investigations were
ongoing about the disputed facts . From his interview with the COB , a year after
the fact, we could reasonably expect from him he prepares for the possibility of
prosecution and, consequently, it gathers elements for the preparation of his
defense.

54 . The Court also noted that under French law , the requirement of public
action can be an obstacle to criminal prosecution for acts too old , partly because
of the difficulty of gathering , several years after the fact, evidence relating to
the offense. However, in this case, when the investigation was opened, the
charges against the applicant were not yet covered by the prescription.
55 . The Court recalls moreover that its task is to ascertain whether the
proceedings as a whole , including the way in which evidence was taken , were
fair character required by Article 6 1 ( see, among other Plissier and Sassi v. .
France [GC ], no 25444/94 , 45, ECHR 1999 -II) . In this case, it notes that the
applicant's conviction is not based solely on the alleged impossibility to
accurately answer some questions during the procedure. In particular , the
domestic courts are aware of the applicant's statements and those of his partner
to do the COB in 1989 and recounting the sequence of events which they were
accused .
56 . About a possible disjunction procedures , as mentioned by the applicant, the
Court finds nothing in the record that has been requested for the national
courts , including the judge, at any time during the procedure . This argument
can not therefore be considered for the first time by the Court.
57 . Given the foregoing, the Court considers that this complaint is manifestly illfounded and must be rejected pursuant to Article 35 3 and 4 of the
Convention.

B. On the complaint of insufficient evidence and motivation

58 . In terms of Article 6 1 of the Convention , the applicant complained also

have been tried without sufficient evidence and critical insufficient motivation of
internal decisions , including the order of referral to the criminal court .
59 . The Court reiterates that it is for the national courts to assess the evidence
obtained by them ( Plissier and Sassi , cited above, 45 ) and that the principle
of subsidiarity, it is not to substitute itself for the national courts to assess
whether the removal of the complainant to the criminal court . It notes that in
this case the judge and the courts have relied on a number of evidence
discussed in adversarial and they considered sufficient to condemn the applicant.
60 . As to the complaint of insufficient motivation internal decisions , the Court
recalls that it has already held that although Article 6 1 of the Convention
required courts to give reasons for their decisions, it could not be understood as
requiring a detailed answer to every argument (Garca Ruiz c . Spain [GC ], no
30544/96 , 26 , ECHR 1999 -I). In this case, the impugned decisions include
detailed motivations and do not disclose any appearance of arbitrariness .
61 . It follows that this part of the application must be rejected as manifestly illfounded pursuant to Article 35 3 and 4 of the Convention.

C. The complaint alleged infringement of the presumption of innocence

62 . The applicant complained of a violation of the presumption of innocence
because of the transfer of the burden of proof and the refusal to give him the
benefit of the doubt. He relied on Article 6 2 of the Convention, which reads as
follows:
" Any person charged with an offense is presumed innocent until proved guilty
according to law. "
63 . The Court observes that throughout the complaint that alleged the burden of
proof transfer , the applicant complained in reality he was convicted without
being able to report , several years after the fact , the evidence of his innocence.
In this, the complaint coincides with that derived from the unfairness of the
proceedings due to its excessive length .
64 . In view of the conclusion it reached above, the Court considers that this
complaint should be declared inadmissible pursuant to Article 35 3 and 4 of
the Convention.

D. The complaint of the lack of examination of witnesses

65 . In terms of Article 6 3 d) of the Convention, the applicant complained of
the lack of hearing of several witnesses. This provision reads as follows:
" Every accused person has the following minimum rights :

(...)
d) to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
(...) "
66 . It does not appear from the record that the applicant has requested that
these witnesses are interviewed , either before the magistrates , either before
the trial courts . Moreover , the Court notes that this complaint was not
submitted to the Court of Cassation.
67 . Accordingly, this part of the application must be rejected for non -exhaustion
of domestic remedies under Article 35 1 and 4 of the Convention.

II . COMPLAINTS FROM ARTICLE 7 OF THE CONVENTION

A. The insufficient predictability of domestic law
68 . The applicant complained of the lack of precision of the constituent
elements of the offense of insider trading when he was sentenced . He relied on
Article 7 of the Convention, the relevant parts of which read as follows:
" 1 . No one may be condemned for an act or omission which, at the time it was
committed, did not constitute a criminal offense under national or international
law . Similarly there is no heavier penalty imposed than that which was
applicable at the time the offense was committed.
2 . This Article shall not prejudice the trial and punishment of guilty of an act or
omission which, at the time it was committed, was criminal according to the
general principles of law recognized by person civilized nations. "

a) The parties' submissions

69 . The Government recalls the jurisprudence of the Court that it is in the first
place for the national authorities, notably the courts , to interpret and apply
domestic law . He believes that in this case , only the national court has
jurisdiction to interpret the order of 28 September 1967 , the Court can not
interpret the conventional text . It emphasizes that in this case, the judges did
not exceed the scope of their office and found that the elements of the offense
were present.

70 . On the quality of the law , the Government considers that the impugned
provisions were clear and precise enough to determine whether the conduct of
the applicant was lawful or not. He cites four decisions of domestic law , prior to
the facts of the case, in which the director of a company , informed the gathering
of the shares of another company , a financial journalist , financial director of a
bank and an officer were convicted of insider trading in close to those of the
applicant circumstances. He believes that these judgments could have allowed
him to foresee that its conduct was reprehensible. He also cites several articles
published in the literature before 1988 and which tended to incriminate the
applicant's conduct .
71 . The Government said that the report on market conduct, on which the
applicant relies , is in reality a " guide behavior" written in a pedagogical
perspective clarification and for investors .
72 . On the opinion issued by the COB, the Government pointed out that it is
purely advisory and not binding on the national courts. In this case, it was
designed to help judges understand the facts in their technical aspects and their
integration into the financial mechanisms. He noted that the investigation by the
COB on the facts at issue was fast and therefore incomplete , and that the
judicial inquiry that ensued was , she was much more thorough . He also noted
that if the SEC has decided to forward the applicant's case to justice, it is
because the Committee considered that the facts alleged against him could
constitute a criminal offense.
73 . The complainant argues that the relevant time , the law criminalizing insider
trading was worded too imprecise to determine with certainty the border
between permissible and those operations were prohibited. He believes that , as
defined in Article 10.1 of the order of 28 September 1967 , insider trading could
only be committed by a professional with a professional link with the target
company , which was not his case . He insisted on the lack of case law on insider
trading in 1988 and notes in this regard that the cases cited by the Government
relates only insiders professionally connected with the target company , unlike
the situation in 1988.
74 . The applicant also notes that , following the proceedings against him, the
government authorities have commissioned a report on the market ethics and
amended legislation on insider trading to make it more precise .

b) Findings of the Court

75 . The Court considers , in the light of all the arguments of the parties that the
complaint raises serious issues of fact and law which can not be resolved at this
stage of its consideration of the application, but require an examination of the
merits .

76 . It follows that this complaint can not be declared manifestly ill-founded

within the meaning of Article 35 3 of the Convention. No other ground for
declaring it inadmissible has been identified.

B. On the non-application of Community legislation

77 . The applicant complained of the non-application during the procedure ,
community texts that were more favorable to him . He relied on Article 7 of the
Convention.
a) The parties' submissions
78 . The Government pointed out at the outset that only the 1989 directive is
invoked by the applicant before the Court while the 2003 was referred to the
Court of Cassation.
79 . He argues that the Community texts relied only cover the administrative and
non- criminal offenses . On this point, it refers to the Spector Photo Group NV
judgment delivered on 23 December 2009 by the Court of Justice of the
European Union ( CJEU ) (see section "the relevant law and practice "). The
Government also argues that the directives at issue do not contain elements
more favorable to the applicant that the domestic law at the relevant time . In
particular , with regard to the 1989 directive , he said that Article 6 provides that
each Member State may provide for more stringent than those of this Directive.
80 . The applicant maintains that the 1989 Directive contains specific provisions
to define more precisely the concept of privileged information . It therefore
reduced the scope of the offense for which he was sentenced by clarifying the
elements . In this, the applicant considers that the text was more favorable to
him .
81 . With regard to the matter in question by Community directives, the applicant
points out that if these texts actually seek administrative matters , however ,
they have undeniable effects on the domestic criminal law to the extent that
national courts are frequently called upon to make application or reference to
Community law , as was the case in the judgment said the " Southern Beehive "
of 26 June 1995 (see section "the relevant law and practice ").

b) Findings of the Court

82 . Above all, the Court observes , like the Government, the applicant's
complaint , as formulated before the Court concerns only the non-application to
the case of the 1989 Directive , the 2003 n 'being invoked before national
courts . Therefore , it will examine the complaint that it relates to the 1989
Directive .

83 . In addition , the Court also notes that the applicant does not claim that all
the provisions of the 1989 Directive contain elements that are more favorable
than the national law it. The Court noted in particular that the applicant's
complaint relates only to the non-consideration by the domestic courts of Article
I of the Directive, which define the concept of inside information more accurately
than domestic law, and not the other provisions of this text. The Court will
therefore examine the complaint and circumscribed .
84 . It considers that this complaint , so defined, is related to that derived from
the unpredictability of the French law against insider trading at the relevant time
and also based on Article 7 of the Convention. Indeed, the applicant herein argue
that the provisions on the basis of which he was convicted were not sufficiently
precise and it could not benefit from the clarifications subsequently occurred ,
including the directive.
85 . Accordingly , the Court considers that this complaint raises serious issues of
fact and law which can not be resolved at this stage of its consideration of the
request and declared admissible.
III . ON THE ALLEGED DISCRIMINATION

86 . The applicant complained of discrimination in as much as , according to

him , his two co-defendants would not have to bear the burden of proof in the
criminal court and they were acquitted for lack of evidence . He relied on Article
14 of the Convention , in substance combined with Article 6 2, which reads as
follows :
"The enjoyment of the rights and freedoms set forth in (...) Convention shall be
secured without discrimination on any ground such as sex , race, color,
language , religion, political or other opinion, national or social origin, association
with a national minority, property , birth or other status. "

87 . The Court recalls that Article 14 can not find a apply if the facts of the case
do not fall within the ambit of at least one of the substantive clauses of the
Convention and its Protocols (Van Raalte c . Netherlands Netherlands, 21
February 1997, 33, Reports of Judgments and decisions 1997 -I).
88 . In this case, it concluded previously in manifestly unfounded nature of the
applicant's complaint under Article 6 2 of the Convention on account of the
alleged reversal of the burden of proof.
89 . As to the alleged discrimination because of the release of his co-defendants
for lack of evidence , the Court observes that it is not apparent from the record
that the applicant was placed in a position similar to theirs , since accusations
against co-defendants were different from those for which he was prosecuted .

90 . It follows that this complaint must also be declared manifestly ill-founded

and must be rejected pursuant to Article 35 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to terminate the application of Article 29 1 of the Convention;
Declares admissible, without prejudging the merits of the applicant's complaints
under Article 7 of the Convention;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President
DECISION SOROS c . FRANCE

DECISION SOROS c . FRANCE