NGOs under European Convention on Human Rights / Tymofeyeva

In the case of OAO Neftyanaya Kompaniya Yukos v. Russia, 679 the Court, by finding a violation of Article 6 of the Convention and Article 1 of Protocol No. 1, held that in view of its previous conclusions the case required no separate examination under Articles 7 the Convention. However, in its admissibility decision of 29 January 2009, the Court admitted the complaint under this provision in view of the following arguments of the applicant company. Relying on Article 7, the applicant company alleged that the tax assessments in their case had not been based on any reasonable and foreseeable interpretation of the domestic law. The applicant company also submitted that the imposition of double penalties for the years 2001–2003 had amounted to a retrospective penalty, since it had been unforeseeable at the date when the liability had been incurred. The Court observed that it had previously established the criminal nature of this type of tax offence in Russia. Ultimately, it concluded that this part of the application raises serious issues of fact and law, the determination of which requires an examination of the merits. This case confirmed that Article 7 of the Convention can also be relied on when the legislation of the CoE member state does not contain rules on the criminal liability of legal persons. An analysis of the case-law of the Court shows that the Court does not often find a violation of Article 7 of the Convention in respect of Article 34 NGOs. Nevertheless, an example does exist. The Court held that there had been a breach of Article 7 (no punishment without law) in the case of Sud Fondi srl and Others v. Italy. 680 The case concerned the imposition of a penalty on the basis of provisions that did not have the ‘quality of law’. The circumstances were as follows. Three Italian applicant companies, Sud Fondi s.r.l, Mabar s.r.l and Iema s.r.l agreed on a building project with the municipality in 1993. Later, a criminal court held that the buildings had been built illegally and ordered the confiscation of this property. The applicant companies appealed. By the final decision, the Italian Court of Cassation found that the building project was materially unlawful because the land was subject to a total ban on building and statutory restrictions designed to protect the environment. It acquitted the accused on the grounds that they did not have unlawful intent to commit the offences, which were the result of an “inevitable and excusable error” in the interpretation of “vague and poorly formulated” domestic regulations. Nevertheless, it ordered the confiscation of all the buildings and land belonging to the applicants. The Court observed that the statutory basis for the offence did not satisfy the criteria of clarity, accessibility and foreseeability. Therefore, it had been impossible for the companies to foresee that a penalty would be inflicted. Moreover, for the purposes of Article 7, a legislative framework that did not enable an accused to know the meaning and scope of the ‘criminal law’ is deficient not only in regard to the general conditions pertaining to the ‘quality’ of the ‘law’, but also regarding the specific requirements of legality in criminal law. Accordingly, the confiscation of the properties had not been prescribed by law in the sense of Article 7 of the Convention and amounted to an arbitrary penalty. 681

OAO Neftyanaya Kompaniya Yukos, cited above.

679

Sud Fondi srl, cited above.

680

Ibid. , § 118.

681

124