Czech Yearbook Vol. 4 2013

175 / 350

SOME GUARANTEES REGARDING CRIMINAL PROCEEDINGS APPLICABLE …
From the table above we can see that Germany, the Netherlands, Turkey and the
United Kingdom did not ratify Protocol No. 7, and, consequently, in these countries
the guarantees mentioned in Articles 2, 3 and 4 of Protocol No. 7 are not applicable to
NGOs. There is also the second group of the CoE member states where legal persons
will not enjoy protection, and these are those countries whose national legislation
does not contain provisions on corporate criminal liability. Among them there are
again Germany and Turkey, and then Russia, Greece and Armenia. Nevertheless,
taking into account an autonomous meaning of the term “criminal” in the practice of
the Court, which is the subject of the next section, these states in some circumstances
may be held liable for an infringement of Protocol No. 7 in respect of NGOs.
From the point of view of international law a few countries that do not possess
domestic laws on criminal liability of legal entities could theoretically be punished
for violation of Protocol No. 7 on the basis of their obligations under international
treaties. These are the treaties that envisage corporate criminal liability and that are
binding for the parties to such instruments. A good example is already mentioned
Convention No. 173.33 From the above mentioned states only Germany is not
a party to this convention. Another illustration is Convention No. 198,34 which
in Article 10 also foresees corporate criminal liability; however, due to a relatively
small number of ratifications35 in comparison with the previous convention, it is less
important. Nevertheless, this convention gives us information on other states, for
instance on San Marino, that are not parties to the treaty on corruption. In addition,
it confirms the fact that Germany is not bound by the most important European
agreements concerning liability of legal persons under criminal law.
4. What is “criminal offence” for the purposes of Protocol No. 7
to the Convention?
Taking into account the fact that the present article is focused on those aspects
of criminal liability within the context of Protocol No. 7, it is necessary to define
some expressions with the word “criminal” or synonyms to it contained in this
international instrument.
The notion “criminal charge”36 has an autonomous meaning under the case
law of the Court. The national legislation of the member states is certainly relevant
for the Court, but it provides only a starting point in ascertaining whether at any
33 Article 18 of the Convention states that “Each Party shall adopt such legislative and other measures
as may be necessary to ensure that legal persons can be held liable for the criminal offences of active
bribery, trading in influence and money laundering established in accordance with this Convention…”
34 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on
the Financing of Terrorism, Warsaw, 16.V.2005. Available at
Treaties/Html/198.htm.
35 23 ratifications on 27 June 2013. For details see /
ChercheSig.asp?NT=198&CM=13&DF=05/06/2013&CL=ENG.
36 Reid, K. A practitioner’s guide to the European Convention on Human Rights. – London: Thomson/Sweet
& Maxwell, 1998, p. 54.