NGOs under European Convention on Human Rights / Tymofeyeva

An exception to this rule can be read in paragraph 2 of Article 7 of the Convention: “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”. The phrase ‘general principles of law recognised by civilised nations’ should be read in the sense of Article 38 of the Statute of the International Court of Justice. 661 Under international law, general principles have been defined as ‘logical propositions resulting from judicial reasoning on the basis of existing pieces of international law’. 662 Nowadays, taking into account membership in the United Nations, the term ‘civilised nations’ is no longer used in international law, since all the states in the worlds are considered equal. 663 General principles of law play two important roles: on the one hand, they provide guidelines for judges, and, on the other hand, they limit the discretionary power of the judiciary in the international context. 664 The second paragraph was included in the treaty specifically to cover measures introduced after the Second World War that were meant to punish war crimes, treason or collaboration. Mostly, this would concern crimes under international law. Nowadays, they are enshrined in the Rome Statute of the International Criminal Court (hereinafter also referred to as the ‘ICC’). 665 Article 25 of the Rome Statute, titled ‘Individual criminal responsibility’, foresees that the ICC has jurisdiction only over natural persons. This means that exceptions set forth in paragraph 2 of Article 7 of the Convention, in practice, almost have no chance of being applicable to legal persons, namely Article 34 NGOs. One of the possible ways of creating such responsibility could be the introduction of international corporate criminal liability. 666 There are already a few international treaties establishing the criminal liability of legal persons, namely, the Convention on the Protection of the Environment through Criminal Law, 667 the Criminal Law Convention on Corruption 668 (hereinafter also referred to as the ‘Convention No. 173’), and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (hereinafter also referred to as the ‘Convention No. 198’). 669 Nevertheless, all of these treaties aim to establish corporate criminal liability domestically in the CoE member states. For example, Article 10 of the Convention No. 198 foresees: “Each Party shall adopt such legislative and other measures as may be necessary to ensure 661 Charter of the United Nations, San Francisco, 26 June 1945. 662 ČEPELKA Č., ŠTURMA P. Mezinárodní právo veřejné . Praha: C. H. Beck, 2008. 663 SCHEU, H. C. Úvod do mezinárodního práva veřejného . Praha: Auditorium, 2010, p. 27. 664 VOIGT, C. The Role of General Principles in International Law and their Relationship to Treaty Law. RETFÆRD ÅRGANG 31 2008 NR. 2/121. 665 Rome Statute of the International Criminal Court, document A/CONF.183/9 of 17 July 1998. The Statute entered into force on 1 July 2002. 666 NORM, K. and GRAHAM, W. International Corporate Criminal Liability. World Focus , 2008, Vol. 8, No. 3, p. 1, 19-21. 667 Convention on the Protection of the Environment through Criminal Law, Strasbourg, 4 November 1998. 668 Criminal Law Convention on Corruption, Strasbourg, 27 January 1999. 669 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, Warsaw, 16 May 2005.

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