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ALLA TYMOFEYEVA
CYIL 4 ȍ2013Ȏ
Eva Hubálková,
21
the senior lawyer at the Court Registry, writes that the notion
“NGO” was defined by the European Court in the case of the
Holy Monasteries v.
Greece,
22
where it ruled that they are entities within the meaning of public law which
do not exercise governmental powers. A more detailed explanation was given in the
case of
Ukraine-Tyumen v. Ukraine,
23
where the Court stated the difference between
the terms “governmental organization” and “non-governmental organization”. In
order to determine whether a particular entity falls into one of the above mentioned
categories, the Court gives regard to its legal status, nature of the activity and the
context in which it is carried out, and the degree of the entity’s independence from
the political authorities. The Court recognised
locus standi
of the Ukraine-Tyumen
Joint Stock Company, observing that the applicant company enjoyed institutional
autonomy, was governed by company law and was under the control of its founders.
This very broad definition of the NGO comprises a large number of subjects, such
as trade unions, public foundations, associations
24
and also commercial entities
and political parties.
25
In general, it can be said that all these entities fall under the
category of “legal person”. Given that the research presented here in this article will
continue with the study of some NGO’s rights in the course of criminal proceedings,
the following step to be done is to summarise which member states of the Council of
Europe envisage criminal liability of legal entities in their legislation.
3. Criminal liability of legal entities in 47 Council of Europe Member States
Criminal liability is a responsibility for acts which harm society and which are
prosecuted by the state authorities. Traditional theory of criminal law recognized
only culpability of natural persons. However, gradually the situation in Europe
changed and now legislation in most countries foresees a possibility of corporate
criminal liability.
There exist a number of legal instruments of the Council of Europe (hereinafter
“the CoE”) dealing with the issue of the criminal liability of legal persons. First
of all, these are the Convention on the Protection of the Environment through
21
Hubalková, E. Řízení před Evropským soudem pro lidská práva [Proceedings before the European
Court for Human Rights]. Praha: Wolters Kluwer ČR, a.s., 2010, p. 35.
22
The Holy Monasteries v. Greece
, 9 December 1994, § 49, Series A No. 301-A.
23
Ukraine-Tyumen v. Ukraine
, no. 22603/02, § 26, 22 November 2007.
24
Hubálková, E.
Řízení před Evropským soudem pro lidská práva
[Proceedings before the European Court
for Human Rights]. Praha: Wolters Kluwer ČR, a.s., 2010, p. 36.
25
The author found more than 125 judgments concerning commercial companies. For example,
Companhia Agrícola da Barrosinha S.A. v. Portugal
, No. 21513/05,
Golf de Extremadura S. A.
v. Spain
, No. 1518/04,
Regent Company v. Ukraine
, No. 773/03,
OOO PKG “Sib-YUKASS” v. Russia
,
No. 34283/05 and
Vodárenská akciová společnost, S.A. v. the Czech Republic
, No. 73577/01; more
than 20 judgments in respect of political parties, see, for instance,
Republican Party of Russia v. Russia
,
No. 12976/07,
Georgian Labour Party v. Georgia
, No. 9103/04,
Parti nationaliste basque – Organisation
régionale d’Iparralde v. France
, No. 71251/01 and
Freedom and Democracy Party (ÖZDEP) v. Turkey
[GC], No. 23885/94. Many cases were originated in applications from trade unions and non-profit
organizations of different type.