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time a person was “charged with a criminal offence”.
37
The assessment by the Court
of the applicability of the criminal aspect to a particular case is based on the so
called
Engel test
and includes three elements: (1) classification in domestic law,
(2) the nature of the offence, and (3) the severity of the penalty that the person
concerned risks incurring.
38
For example, in the case of
Bendenoun v. France
39
the
applicant and the limited liability company formed by him were required to pay
additional tax and penalties in respect of the value-added tax and corporation
tax. The French government submitted that the tax surcharges imposed bore the
hallmarks of an administrative penalty. The Court, however, did not agree and stated
that the surcharges are intended not as pecuniary compensation for damage but as
a punishment to deter re-offending. Consequently, it came to conclusion that the
“charge” in issue was of a “criminal” nature for the purposes of the Convention.
The concept of “criminal charge” was primarily developed for the needs of
Article 6 of the Convention. However, in practice the notion is used by the Court
with reference to all the articles relating to guarantees in criminal proceedings. Pieter
van Dijk states that the terms “criminal charge” and “criminal offence” used in the
Seventh protocol have the same scope.
40
Therefore, it is possible to say that Articles 2,
3 and 4 of Protocol No. 7 applying the notions
“criminal offence”, “penal procedure”
and “criminal proceedings”
are also applicable to those administrative and disciplinary
procedures that fall within the meaning of Article 6.
41
As to a possibility to apply the guarantees to NGOs in criminal proceedings, this
practice is confirmed by the Court,
iter alia
, in the case of
Fortum Oil and Gas Oy
v. Finland,
42
where it noted that “a company may be regarded as having been “charged
with a criminal offence” within the autonomous meaning of that expression…”.
Having discussed the applicability of the guarantees to legal entities in the course
of criminal proceedings in different countries and having clarified the important
terms, we will now concentrate on separate articles of Protocol No. 7 with reference
to the case law of the Court concerning NGOs.
5. The right of appeal in criminal matters (Article 2 of Protocol No. 7)
ARTICLE 2 – Right of appeal in criminal matters
1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his
conviction or sentence reviewed by a higher tribunal. The exercise of this right, including
the grounds on which it may be exercised, shall be governed by law.
37
Adolf v. Austria
, 26 March 1982, § 30, Series A No. 49.
38
Engel and Others v. the Netherlands
, 8 June 1976, § 82-83, Series A No. 22.
39
Bendenoun v. France
, 24 February 1994, Series A No. 284.
40
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, p. 633.
41
In the case of
Goktan v. France
the Court noted that the notion of what constitutes a “penalty” cannot
vary from one Convention provision to another.
42
Fortum Oil and Gas Oy v. Finland
(dec.) of 12 November 2002, Application No. 32559/96.