180 / 350
ALLA TYMOFEYEVA
CYIL 4 ȍ2013Ȏ
ratione personae”
as it was not a question of material rights set forth in the Convention,
but the issue of impossibility to complain against the state who has not ratified
52
a Protocol to the Convention.
Netherlands still has not ratified Protocol No. 7, though the state has a long
tradition of corporate criminal liability.
53
On 1 August 2002 and on 1 December 2008
respectively, Convention No. 173
54
and Convention No. 198
55
entered into force
with respect to this country. Nevertheless, the absence of obligations under Protocol
No. 7 does not allow the Court to deliver judgments of violation of Articles of this
Protocol. The same would be the situation for those NGOs from Germany, Turkey
and the United Kingdom.
7. Right not to be tried or punished twice (Article 4 Protocol No. 7)
ARTICLE 4 – Right not to be tried or punished twice
1. No one shall be liable to be tried or punished again in criminal proceedings under the
jurisdiction of the same State for an offence for which he has already been finally acquitted
or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in
accordance with the law and penal procedure of the State concerned, if there is evidence
of new or newly discovered facts, or if there has been a fundamental defect in the previous
proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention.
Article 4 of Protocol No. 7 embodies the principle that a person may not be tried
or punished again in criminal proceedings under the jurisdiction of the same state
for an offence for which he or she has already been finally acquitted or convicted
56
(
non bis in idem
). It must be stressed that this is not confined to the right to not be
punished twice, but concerns only the rights to not be tried twice.
57
When a single
criminal act can be separated into several criminal offences, for example illegal
52
Practical Guide on Admissibility Criteria. Council of Europe/European Court of Human Rights, 2011,
p. 35 with reference to the cases
Horsham v. the United Kingdom
(dec.); and
De Saedeleer v. Belgium
,
§ 68.
53
Corporate Liability in Europe, by Clifford Chance LLP, January 2012. Available at
http://www.
cliffordchance.com/content/dam/cliffordchance/PDFs/Corporate_Liability_in_Europe.pdf.
54
Criminal Law Convention on Corruption, Strasbourg, 27.I.1999. Available at
http://conventions.coe.int/Treaty/en/Treaties/Html/173.htm.
55
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on
the Financing of Terrorism, Warsaw, 16.V.2005. Available at
http://conventions.coe.int/Treaty/en/Treaties/Html/198.htm.
56
Para. 26 of the Explanatory Report to Protocol No. 7 to the Convention for the Protection of Human
Rights and Fundamental Freedoms. Available at
http://conventions.coe.int/Treaty/EN/Reports/Html/117.htm.
57
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, p. 752.