CYIL Vol. 4, 2013

ALLA TYMOFEYEVA CYIL 4 ȍ2013Ȏ time a person was “charged with a criminal offence”. 37 The assessment by the Court of the applicability of the criminal aspect to a particular case is based on the so called Engel test and includes three elements: (1) classification in domestic law, (2) the nature of the offence, and (3) the severity of the penalty that the person concerned risks incurring. 38 For example, in the case of Bendenoun v. France 39 the applicant and the limited liability company formed by him were required to pay additional tax and penalties in respect of the value-added tax and corporation tax. The French government submitted that the tax surcharges imposed bore the hallmarks of an administrative penalty. The Court, however, did not agree and stated that the surcharges are intended not as pecuniary compensation for damage but as a punishment to deter re-offending. Consequently, it came to conclusion that the “charge” in issue was of a “criminal” nature for the purposes of the Convention. The concept of “criminal charge” was primarily developed for the needs of Article 6 of the Convention. However, in practice the notion is used by the Court with reference to all the articles relating to guarantees in criminal proceedings. Pieter van Dijk states that the terms “criminal charge” and “criminal offence” used in the Seventh protocol have the same scope. 40 Therefore, it is possible to say that Articles 2, 3 and 4 of Protocol No. 7 applying the notions “criminal offence”, “penal procedure” and “criminal proceedings” are also applicable to those administrative and disciplinary procedures that fall within the meaning of Article 6. 41 As to a possibility to apply the guarantees to NGOs in criminal proceedings, this practice is confirmed by the Court, iter alia , in the case of Fortum Oil and Gas Oy v. Finland, 42 where it noted that “a company may be regarded as having been “charged with a criminal offence” within the autonomous meaning of that expression…”. Having discussed the applicability of the guarantees to legal entities in the course of criminal proceedings in different countries and having clarified the important terms, we will now concentrate on separate articles of Protocol No. 7 with reference to the case law of the Court concerning NGOs. 5. The right of appeal in criminal matters (Article 2 of Protocol No. 7) ARTICLE 2 – Right of appeal in criminal matters 1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law. 37 Adolf v. Austria , 26 March 1982, § 30, Series A No. 49. 38 Engel and Others v. the Netherlands , 8 June 1976, § 82-83, Series A No. 22. 39 Bendenoun v. France , 24 February 1994, Series A No. 284. 40 Van Dijk, P., Van Hoof, F., Van Rijn, A., Zwaak, L. eds. Theory and practice of the European Convention on Human Rights . – 4th ed. – Antwerpen ; Oxford : Intersentia, 2006, p. 633. 41 In the case of Goktan v. France the Court noted that the notion of what constitutes a “penalty” cannot vary from one Convention provision to another. 42 Fortum Oil and Gas Oy v. Finland (dec.) of 12 November 2002, Application No. 32559/96.