CYIL Vol. 4, 2013

SOME GUARANTEES REGARDING CRIMINAL PROCEEDINGS APPLICABLE … From the table above we can see that Germany, the Netherlands, Turkey and the United Kingdom did not ratify Protocol No. 7, and, consequently, in these countries the guarantees mentioned in Articles 2, 3 and 4 of Protocol No. 7 are not applicable to NGOs. There is also the second group of the CoE member states where legal persons will not enjoy protection, and these are those countries whose national legislation does not contain provisions on corporate criminal liability. Among them there are again Germany and Turkey, and then Russia, Greece and Armenia. Nevertheless, taking into account an autonomous meaning of the term “criminal” in the practice of the Court, which is the subject of the next section, these states in some circumstances may be held liable for an infringement of Protocol No. 7 in respect of NGOs. From the point of view of international law a few countries that do not possess domestic laws on criminal liability of legal entities could theoretically be punished for violation of Protocol No. 7 on the basis of their obligations under international treaties. These are the treaties that envisage corporate criminal liability and that are binding for the parties to such instruments. A good example is already mentioned Convention No. 173. 33 From the above mentioned states only Germany is not a party to this convention. Another illustration is Convention No. 198, 34 which in Article 10 also foresees corporate criminal liability; however, due to a relatively small number of ratifications 35 in comparison with the previous convention, it is less important. Nevertheless, this convention gives us information on other states, for instance on San Marino, that are not parties to the treaty on corruption. In addition, it confirms the fact that Germany is not bound by the most important European agreements concerning liability of legal persons under criminal law. 4. What is “criminal offence” for the purposes of Protocol No. 7 to the Convention? Taking into account the fact that the present article is focused on those aspects of criminal liability within the context of Protocol No. 7, it is necessary to define some expressions with the word “criminal” or synonyms to it contained in this international instrument. The notion “criminal charge” 36 has an autonomous meaning under the case law of the Court. The national legislation of the member states is certainly relevant for the Court, but it provides only a starting point in ascertaining whether at any 33 Article 18 of the Convention states that “Each Party shall adopt such legislative and other measures as may be necessary to ensure that legal persons can be held liable for the criminal offences of active bribery, trading in influence and money laundering established in accordance with this Convention…” 34 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. 35 23 ratifications on 27 June 2013. For details see http://conventions.coe.int/Treaty/Commun/ ChercheSig.asp?NT=198&CM=13&DF=05/06/2013&CL=ENG. 36 Reid, K. A practitioner’s guide to the European Convention on Human Rights . – London: Thomson/Sweet & Maxwell, 1998, p. 54.