NGOs under European Convention on Human Rights / Tymofeyeva

that legal persons can be held liable for the criminal offences of money laundering established in accordance with this Convention, committed for their benefit by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person…”. 670 In view of the fact that the theory of international law still does not recognise legal persons as full subjects of international law, it is hard to speak of international criminal liability for Article 34 NGOs. Moreover, the discussed treaties do not set forth the direct criminal liability of legal persons under international law. Turning back to the principle of nullum crimen nulla poena sine lege , let us have a look at the case-law under Article 7 of the Convention in respect of Article 34 NGOs. First of all, it must be stressed again that this Article is applicable in relation to organisations primarily in those CoE countries, where corporate criminal liability exists. The research made by the author shows that the legal persons will not enjoy protection under this article in Germany, Turkey, Russia, Greece and Armenia. 671 Nevertheless, taking into account an autonomous meaning of the term ‘criminal’ in the practice of the Court, in some circumstances these states may be held liable for an infringement of Article 7. When speaking of ‘law’, Article 7 implies written and unwritten law, which satisfies qualitative requirements, notably those of accessibility and foreseeability. Concerning foreseeability in particular, the Court noted that however clearly drafted a legal provision may be in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for clarification of doubtful points and for adaptation to changing circumstances. 672 Indeed, in certain Convention states, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual explaining of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen. 673 Practice of the Court regarding the rights of Article 34 NGOs under Article 7 of the Convention is quite limited. Therefore, it was decided not to address the particular issues under this provision, but to study the judgments and decisions of the Court. Let us start by having a look at the judgments in question. 2.3.2 Judgments of the Court The concept of corporate criminal liability is a relatively new phenomenon. This can be one of the explanations as to why the practice of the Court is so restrictive in relation to Article 34 NGOs complaining of breach of the nullum crimen nulla poena sine lege guarantees. There were only a few judgments where the Court dealt with Ibid, Article 10 “Corporate lability”. 671 TYMOFEYEVA, A. Some guarantees …, cited above, p. 160-161. 672 Korbely v. Hungary [GC], no. 9174/02, ECHR 2008. 673 Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001-II. 670

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