NGOs under European Convention on Human Rights / Tymofeyeva

2.3 No punishment without law (Article 7) Article 7 – No punishment without law

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. 2.3.1 General observations Article 7 of the Convention primary concerns criminal proceedings. Consequently, an Article 34 NGOmay complain before the Court of a breach of this provision if it was subject to criminal litigations. Given the notion of this type of applicants, it becomes clear that the main precondition to employment of this Article is the existence in a member state of legislation on corporate criminal liability. The research conducted by the author shows that most of the parties to this CoE treaty introduced such legislation only after the turn of the millennium. 647 Nonetheless, though it could seem surprising, before 2000 Article 34 NGOs also enjoyed guarantees in criminal proceedings. In view of the Court’s autonomous meaning of the expression ‘criminal offence’ , 648 these guarantees apply to them not only in the CoE member states with corporate criminal liability in their legislation, but also to all other CoE countries. The first paragraph of Article 7 of the Convention envisages that nobody shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. In order to understand this provision, it is necessary to give an explanation of the term ‘criminal offence’. The national legislation of the CoE member states is certainly relevant for the Court, but it provides only a starting point in ascertaining whether at any time a personwas ‘chargedwith a criminal offence’. 649 The Court concluded that administrative proceedings might also be covered by the concept at issue. 650 The Court’s assessment of the applicability of the criminal aspect of a particular case is based on the so-called Engel test and includes three elements: (1) classification in domestic law; (2) nature of the offence; and (3) severity of the penalty that the person concerned risks incurring . 651 Based on this test, the Court often recognized tax or administrative proceedings as ‘criminal’. 652 For example, in the case of Bendenoun 647 TYMOFEYEVA, A. Some guarantees regarding criminal proceedings applicable to non-governmental organizations: Protocol no. 7 to the European convention on human rights // Czech Yearbook of Public and Private International Law, Vol. 4. Prague: Czech International Law Society, 2013, pp. 159-160. 648 Ibid., p. 161. 649 Adolf v. Austria , 26 March 1982, § 30, Series a no. 49. 650 Vyerentsov v. Ukraine, no. 20372/11, § 67, 11 April 2013. 651 Engel and Others v. the Netherlands , 8 June 1976, § 82-83, Series a no. 22. 652 Albert v. Romania , no. 31911/03, 16 February 2010, KMEC, 2012, cited above, p. 579.

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