NGOs under European Convention on Human Rights / Tymofeyeva

v. France , 653 the applicant and the limited liability company formed by him were required to pay additional taxes 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 were 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 Court does not always depart from the national law’s idea of ‘criminal’. In the case of Tre Traktörer AB v. Sweden , 654 a Swedish limited company, Tre Traktörer Aktiebolag (‘TTA’), relying on Article 7 of the Convention, complained of a retroactive application of criminal provisions. The Court, however, observed that the withdrawal of TTA’s licence did not constitute the determination of a ‘criminal charge’ against it. It noted that although the revocation could be regarded as a severe measure, it could not be characterised as a penal sanction. Even if linked with the licensee’s behaviour, the decisive factor was its suitability to sell alcoholic beverages. Therefore, Article 7 was not applicable to the case in this respect. The concept of a ‘criminal charge or offence’ was primarily developed for the needs of Article 6 of the Convention. However, in practice the Court uses the notion 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 Article 7 and the Seventh Protocol to the Convention have the same scope. 655 Therefore, it is possible to say that Article 7 of the Convention and Articles 2, 3 and 4 of Protocol No. 7, applying the notions of ‘criminal offence’, ‘penal procedure’ and ‘criminal proceedings’, are also applicable to those administrative and disciplinary procedures that fall within the meaning of ‘criminal’. 656 Article 7 of the Convention forbids extensive interpretation or usage of analogy in criminal law. 657 The Court found a violation of this provision when private-sector employees were convicted of accepting bribes under the wording of the Criminal Code at the material time, which envisaged that the offence could only be committed by a public servant or a person working for a state-owned company. 658 Nonetheless, the Court also stated that judicial interpretation necessarily involves developing new concepts in response to new situations and changing circumstances. 659 Principles of non-retroactivity and legality, which in Latin is ‘ nullum crimen nulla poena sine lege ’ (no crime, no punishment without law), are of such crucial importance that governments of the CoEmember states cannot derogate from them. 660 653 Bendenoun v. France , 24 February 1994, Series a no. 284. 654 Tre Traktörer AB v. Sweden, 7 July 1989, Series a no. 159. 655 VAN DIJK, 2006, cited above, p. 633. 656 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. 657 KMEC, 2012, cited above, p. 845. 658 Dragotoniu and Militaru-Pidhorni v. Romania , nos. 77193/01 and 77196/01, 24 May 2007. 659 Kononov v. Latvia [GC], no. 36376/04, ECHR 2010. 660 See Article 15 of the Convention.

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