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ALLA TYMOFEYEVA
CYIL 4 ȍ2013Ȏ
Articles 3 and 5 of the European Convention. In the area of criminal justice the
Court mainly deals with Articles 6, 7, 13 and the rights embodied in Protocol No. 7.
When the authors of the commentaries to or manuals on the Convention deal with
the Protocol, some of them do not mention it at all,
10
and the others mention it very
briefly,
11
mostly discussing those cases concerning individuals. Given that the public
is only to a limited extent acquainted with the guarantees foreseen by Protocol No. 7
concerning legal entities, the author decided to concentrate her efforts on the study
of this subject.
Protocol No. 7 guarantees the following rights in the course of criminal proceedings:
the right to appeal in criminal matters (Article 2), the right to compensation for wrongful
conviction (Article 3), and the right to not be tried or punished twice (Article 4).
The rights envisaged by Articles 2 and 3 of the Protocol are derogable, which means
that in time of war or other public emergency threatening the life of the nation
the contracting parties may withdraw from its obligations under the Convention.
In paragraph 3 of Article 4 of Protocol No. 7 it is directly pointed out that “no
derogation from this Article shall be made under Article 15 of the Convention”, and
therefore the impossibility of derogations is unquestionable.
Before starting a description of the Protocol’s rights applicable to NGOs
in criminal procedures, it is necessary to clarify the definition of the term “non-
governmental organization” in the view of the fact that it has a special connotation
in the European Convention.
2. Notion “non-governmental organization”
Most authors
12
agree that there is no one definition recognized worldwide of the
term “non-governmental organization” in the doctrine of international law. Christian
Tomuschat defines an NGO as an association under the domestic law of a given
country,
13
which is a quite broad definition. The author of a fundamental study on
the legal status of NGOs in international law, Anna-Karin Lindblom, considers
that it is an organization that: 1) is non-governmental, 2) is not-for-profit, 3) does
10
Reid, K.
A practitioner’s guide to the European Convention on Human Rights
. London: Thomson/Sweet
& Maxwell, 1998.
11
Harris, D. J., O’Boyle, M., Bates, E. P., Buckley, C. M.
Law of the European Convention on Human
Rights
. – 2nd ed., Oxford ; New York : Oxford University Press, 2009, pp. 747-757, Van Dijk, P., Van
Hoof, F., Van Rijn, A., Zwaak, L. eds.
Theory and practice of the European Convention on Human Rights
.
– 4th ed. – Antwerpen ; Oxford : Intersentia, 2006, pp. 971-985, Čapek, J.
Evropská úmluva o ochraně
lidských práv. II. část, Protokoly
[European Convention on Human Rights, Part II, Protocols], Praha:
Linde, 2010, pp. 119-124, Mowbray, A.
Cases and materials on the European Convention on Human
Rights
. - 2nd ed., Oxford ; New York : Oxford University Press, 2007, pp. 999-1011.
12
Lindblom, A.
Non-Governmental Organizations in International Law
. Cambridge: Cambridge University
Press, 2005; Tomuschat, C.
Human Rights: Between Idealism and Realism
, Second Edition. Oxford:
Oxford University Press, 2008; Willetts, P.
What is a Non-Governmental Organization? Output from the
Research Project on Civil Society Networks in Global Governance.
13
Tomuschat, C.
Human Rights Between Idealism and Realism
, Second Edition. Oxford: Oxford
University Press, 2008, p. 282.