EHRM, 21-10-2013, nr. 42750/09

In an order of 25 May 1990 the Supreme Court considered that the combining of sentences in application of Article 70.2 of the Criminal Code of 1973 and section 988 of the Criminal Procedure Act concerned not the ‘execution’ but the fixing of the sentence, and that its application was accordingly a matter for the trial court, not the judge responsible for the execution of sentences (Jueces de Vigilancia Penitenciaria).

In a judgment of 8 March 1994 (529/1994) the Supreme Court affirmed that the maximum term of imprisonment (thirty years) provided for in Article 70.2 of the Criminal Code of 1973 amounted to a ‘new sentence — resulting from but independent of the others — to which the sentence adjustments (beneficios) provided for by law, such as release on licence and remission of sentence, apply’. The Supreme Court referred to Article 59 of the Prison Regulations of 1981, according to which the combination of two custodial sentences was treated as a new sentence for the purposes of release on licence.

In an agreement adopted by the full court on 18 July 1996, following the entry into force of the Criminal Code of 1995, the Criminal Division of the Supreme Court explained that for the purpose of determining which was the more lenient law, regard had to be had to the system of remissions of sentence introduced by the old Code of 1973 when comparing the sentences to be served respectively under that Code and the new Criminal Code of 1995. It added that under Article 100 of the Criminal Code of 1973 a prisoner who had served two days of his sentence was irrevocably considered to have served three days. The application of this rule gave the beneficiary an acquired right.4. The Spanish courts, which had to apply this criterion to compare the terms to be served respectively under the new and the old Criminal Code, took into account the remissions of sentence granted under the old Code. They accordingly considered that where the remainder of the sentence to be served after deduction of the remissions granted prior to the entry into force of the new Code did not exceed the length of the sentence provided for in the new Code, the latter could not be considered more lenient than the old Code. That approach was confirmed by the Supreme Court in various decisions, including judgments nos. 557/1996 of 18 July 1996 and 1323/1997 of 29 October 1997.

The Supreme Court continued to adopt that interpretation of the maximum term to be served as prescribed in Article 76 of the new Criminal Code of 1995. In judgment no. 1003/2005, delivered on 15 September 2005, it held that ‘this limit amounts to a new sentence — resulting from but independent of the others — to which the sentence adjustments (beneficios) provided for by law, such as release on licence, day-release permits and pre-release classification apply’. In the same manner and terms, it stated in judgment no. 1223/2005, delivered on 14 October 2005, that the maximum term to be served ‘amounts to a new sentence — resulting from but independent of the others — to which the sentence adjustments (beneficios) provided for by law, such as release on licence, apply subject to the exceptions provided for in Article 78 of the Criminal Code of 1995’.

In judgment no. 197/2006 of 28 February 2006 the Supreme Court set a precedent known as the ‘Parot doctrine’. The case concerned a terrorist member of ETA (H. Parot) who had been convicted under the Criminal Code of 1973. The plenary Criminal Division of the Supreme Court ruled that the remissions of sentence granted to prisoners were henceforth to be applied to each of the sentences imposed and not to the maximum term of thirty years provided for in Article 70.2 of the Criminal Code of 1973. The Court's ruling was based in particular on a literal interpretation of Articles 70.2 and 100 of the Criminal Code of 1973 according to which that maximum term of imprisonment was not to be treated as a new sentence distinct from those imposed, or a distinct sentence resulting from those imposed, but rather as the maximum term a convicted person should spend in prison. This reasoning made a distinction between the ‘sentence’ (pena) and the ‘term to be served’ (condena); the former referred to the sentences imposed taken individually, to which remissions of sentence should be applied, while the latter referred to the maximum term of imprisonment to be served. The Supreme Court also used a teleological argument. The relevant parts of its reasoning read as follows:

In the above-mentioned judgment the Supreme Court considered that there was no well-established case-law on the specific question of the interpretation of Article 100 of the Criminal Code of 1973 in conjunction with Article 70.2. It referred to a single precedent, its judgment of 8 March 1994 in which it had considered that the maximum duration provided for in Article 70.2 of the Criminal Code of 1973 amounted to ‘a new, independent sentence’ (see paragraph 36 above). However, the Supreme Court departed from that interpretation, pointing out that that decision was an isolated one and could therefore not be relied on as a precedent in so far as it had never been applied in a consistent manner.

Even assuming that its new interpretation of Article 70 of the Criminal Code of 1973 could have been regarded as a departure from its case-law and from previous prison practice, the principle of equality before the law (Article 14 of the Constitution) did not preclude departures from the case-law, provided that sufficient reasons were given. Furthermore, the principle that the criminal law should not be applied retroactively (Article 25 § 1 and Article 9 § 3 of the Constitution) was not meant to apply to case-law.

Judgment no. 197/2006 was adopted by a majority of twelve votes to three. The three dissenting judges appended an opinion stating that the sentences imposed successively were transformed or joined together into another sentence, similar in nature but different in so far as it combined the various sentences into one. That sentence, which they called ‘the sentence to be served’, was the one resulting from the application of the limit fixed in Article 70.2 of the Criminal Code of 1973, which effectively extinguished the sentences that went beyond that limit. This new ‘unit of punishment’ was the term the prisoner had to serve, to which remission for work done in detention was to be applied. Remissions would therefore affect the sentences imposed, but only once the rules on the consecutive serving of sentences had been applied to them ‘for the purposes of their completion’. The dissenting judges also pointed out that for the purposes of determining the most lenient criminal law following the entry into force of the Criminal Code of 1995, all Spanish courts, including the Supreme Court (agreements adopted by the plenary Criminal Division on 18 July 1996 and 12 February 1999), had agreed to the principle that reductions of sentence should be applied to the sentence resulting from the application of Article 70.2 of the Criminal Code of 1973 (the thirty-year limit). In application of that principle no fewer than sixteen people convicted of terrorism had recently had their sentences reduced for work done in detention although they had each been given prison sentences totalling over a hundred years.

The dissenting judges considered that the method applied by the majority was not provided for in the Criminal Code of 1973 and therefore amounted to retroactive implicit application of the new Article 78 of the Criminal Code of 1995, as amended by Organic Law no. 7/2003 introducing measures to ensure the full and effective execution of sentences. This new interpretation to the convicted person's detriment was based on a policy of full execution of sentences which was alien to the Criminal Code of 1973, could be a source of inequalities and was contrary to the settled case-law of the Supreme Court (judgments of 8 March 1994, 15 September 2005 and 14 October 2005). Lastly, the dissenting judges considered that criminal policy reasons could on no account justify such a departure from the principle of legality, even in the case of an unrepentant terrorist murderer as in the case concerned.

The Supreme Court confirmed the ‘Parot doctrine’ in subsequent judgments (see, for example, judgment no. 898/2008 of 11 December 2008). In its judgment no. 343/2011 of 3 May 2011 it referred to the departure from previous case-law in judgment no. 197/2006 in the following terms:

According to information supplied by the Government, the ‘Parot doctrine’ has been applied to ninety-three convicted members of ETA and thirty-seven other people found guilty of particularly serious crimes (drug traffickers, rapists and murderers).

The applicant submitted that the thirty-year maximum term of imprisonment set by the decision of 30 November 2000 to combine the sentences and place an upper limit on the term to be served amounted to a new sentence and/or the final determination of her sentence. She agreed with the Chamber's finding that practice at the time gave her a legitimate expectation, while serving her prison sentence, that the reductions of sentence to which she was entitled for the work done since 1987 would be applied to the maximum legal term of thirty years' imprisonment.

That being so, she submitted that the application to her case of the Supreme Court's departure from case-law in its judgment no. 197/2006 amounted to the retroactive imposition of an additional penalty that could not merely be described as a measure relating to the execution of the sentence. As a result of this change of approach the thirty-year term fixed by the decision of 30 November 2000, of which she had been notified the same day, had ceased to be treated as a new, independent and/or final sentence and the various sentences imposed on her between 1988 and 2000 (totalling over three thousand years' imprisonment) in eight trials had, in a manner of speaking, been restored. The applicant submitted that by applying the remissions of sentence to each of her sentences individually the Spanish courts had deprived her of the remissions of sentence she had earned and added nine years to her imprisonment. In so doing, the courts concerned had not simply altered the rules applicable to remissions of sentence, but had also redefined and/or substantially changed the ‘penalty’ she had been informed she would have to serve.

The applicant argued that the Supreme Court's departure from the case-law in its judgment no. 197/2006 had not been reasonably foreseeable in the light of the previous practice and case-law, and had deprived the remissions of sentence for work done in detention provided for in the Criminal Code of 1973 of any meaning for people in her situation. In the applicant's submission the judgment concerned had resulted in the application to her case of the criminal policy behind the new Criminal Code of 1995, in spite of the fact that the intention of the drafters of the Code had been to keep the remissions of sentence provided for in the Criminal Code of 1973 in place for anyone who had been convicted under that Code.

In the alternative, there was no denying that at the time the applicant had committed the offences Spanish law had not been formulated with sufficient precision to enable her to discern, to a degree that was reasonable in the circumstances, the scope of the penalty imposed and the manner of its execution (the applicant referred to Kafkaris, cited above, § 150). In the applicant's submission, the Criminal Code of 1973 was ambiguous in that it did not specify whether the maximum term of thirty years' imprisonment was a new, independent sentence, whether the individual sentences continued to exist once they had been combined together, and to which sentence the remissions of sentence for work done should be applied. Judgment no. 197/2006 had not clarified the question of the determination of the sentence as the Supreme Court had not expressly set aside its order of 25 May 1990 according to which the combining of sentences provided for in Article 70.2 of the Criminal Code of 1973 concerned the determination of the sentence.

Besides, had that order still been in force the Audiencia Nacional would have had to choose between the various sentences to which the remissions of sentence could potentially have been applied, namely the thirty-year maximum term or the individual sentences. In conformity with the Scoppola v. Italy (no. 2) judgment ([GC], no. 10249/03, 17 September 2009), the Audiencia Nacional would have been obliged to apply the more lenient criminal law, regard being had to the particular circumstances of the case.

Also, the distinction between the penalty and its execution was not always clear in practice. It was for the Government, when relying on that distinction, to demonstrate that it was applicable in a particular case, notably when the lack of clarity was due to the way in which the State had drafted or applied its laws. The present case should be distinguished from cases concerning discretionary measures of early release or measures that did not result in a redefinition of the penalty (the applicant referred to Hogben, cited above, Hosein v. the United Kingdom, no. 26293/95, Commission decision of 28 February 1996; Grava, cited above; and Uttley v. the United Kingdom (dec.), no. 36946/03, 29 November 2005). In the alternative, from the point of view of the quality of the law the present case was more like Kafkaris in terms of the uncertainty as to the scope and substance of the penalty, due in part to the way in which the rules on remissions of sentence had been interpreted and applied. In any event, it was clear from the Kafkaris judgment that the ‘quality of law’ requirement applied both to the scope of the penalty and to the manner of its execution, particularly when the substance and the execution of the penalty were closely linked.

Lastly, regarding the case-law in criminal matters, even assuming that it was legitimate for the courts to alter their approach to keep abreast of social changes, the Government had failed to explain why the new approach had been applied retroactively. In any event, neither the Government nor the courts had claimed that the new 2006 approach had been applied to the applicant in response to ‘new social realities’.

The Government reiterated that the applicant was a member of the ETA criminal organisation and had taken part in numerous terrorist attacks from 1982 until her detention in 1987. They added that for her crimes the applicant had been sentenced between 1988 and 2000 to imprisonment totalling over 3,000 years, for twenty-three murders, fifty-seven attempted murders and other offences. They submitted that the different judgments convicting the applicant had been based on the Criminal Code of 1973, which had been in force at the times when the offences had been committed and which gave a very clear definition of the different offences and the penalties they entailed. Five of the judgments by which the applicant had been convicted, as well as the decision of 30 November 2000 to combine the sentences and set a maximum term of imprisonment, had expressly informed the applicant that, in accordance with Article 70.2 of the Criminal Code, the total duration of the prison sentence she would have to serve was thirty years. They also pointed out that on 15 February 2001, the date of the Audiencia Nacional's decision setting 27 June 2017 as the date on which the applicant would have finished serving her sentence, the applicant had already accrued over four years' remission of sentence for work done in detention. And as she had not appealed against that decision, she was considered to have acquiesced to the release date fixed by the Audiencia Nacional.

It was perfectly clear under the provisions of the Criminal Code of 1973 that the maximum term of thirty years was not to be regarded as a new penalty but rather as a measure placing an upper limit on the total term of imprisonment in respect of the various sentences imposed, to be served successively in order of decreasing severity, the residual sentences being extinguished accordingly. The sole purpose of combining and placing an upper limit on the sentences had been to fix the duration of the actual term to be served as a result of all the sentences imposed in the different sets of proceedings. Besides, Article 100 of the Criminal Code of 1973 made it just as clear that remissions of sentence for work done in detention were to be applied to the ‘sentence imposed’, in other words to each of the sentences imposed until the maximum term had been reached.

While it was true that prior to the adoption by the Supreme Court of judgment no. 197/2006 the Spanish prisons and courts had tended, in practice, to apply remissions of sentence for work done in detention to the thirty-year maximum term of imprisonment, that practice did not concern the determination of the penalty, but its execution. Furthermore, that practice had no basis in the case-law of the Supreme Court in the absence of any established principle as to the manner of applying remissions of sentence for work done in detention. The sole judgment delivered on this issue by the Supreme Court in 1994 did not suffice to set an authoritative precedent under Spanish law. The Supreme Court's case-law in the matter had not been settled until its Criminal Division had adopted judgment no. 197/2006. What is more, the Government argued, that case-law had been endorsed by the full Constitutional Court in several judgments delivered on 29 March 2012, containing numerous references to the Court's case-law concerning the distinction between a ‘penalty’ and its ‘execution’.

In the Government's submission the Chamber had mistakenly considered that the application of the ‘Parot doctrine’ had deprived of all purpose the remissions of sentence for work done in detention granted to convicted prisoners under the Criminal Code of 1973. Remissions of sentence continued to be applied, but to each of the sentences individually, until the maximum term had been reached. Only in the case of the most serious crimes, such as those committed by the applicant, would the thirty-year limit be reached before the remissions of sentence granted for work done in detention had significantly reduced the sentences imposed. Similarly, the Chamber had mistakenly considered that the Supreme Court had retroactively applied the policy behind the legislative reforms of 1995 and 2003. It was plain to see that the reforms in question made no mention of the means of applying remissions of sentence for work done in detention, the Criminal Code of 1995 having done away with them. Had the criminal policy behind the 2003 law been applied retroactively, the applicant would have been liable to a maximum term of imprisonment of forty years.

In its judgment the Chamber had departed from the Court's case-law concerning the distinction between measures that amounted to a ‘penalty’ and those relating to the ‘execution’ of a penalty. Under that case-law a measure concerning remission of sentence or a change in the system of release on licence was not an integral part of the ‘penalty’ within the meaning of Article 7 (the Government referred to Grava, cited above, § 51; Uttley, cited above; Kafkaris, cited above, § 142; and also the Hogben decision cited above). In the Kafkaris case the Court had acknowledged that a prison-law reform which was applied retroactively, excluding prisoners serving life sentences from earning remissions of sentence for work done in detention, concerned the execution of the sentence as opposed to the ‘penalty’ imposed (§ 151). In the present case the Government submitted that there had been no change in prison law. The only effect of Supreme Court judgment no. 197/2006 concerning remissions of sentence for work done in detention had been to prevent the date of the applicant's release being brought forward nine years, not to increase the penalty imposed on her.

The present case differed from cases which clearly concerned the penalty as opposed to its execution (the Government cited Scoppola (no. 2); Gurguchiani; and M. v. Germany, all cited above). The disputed measure concerned remissions of sentence or ‘early release’, not the maximum term that could be served in respect of the sentences imposed, which had not changed. Remissions of sentence for work done in detention did not pursue the same aims as the penalty as such, but were measures relating to its execution in so far as they allowed prisoners to be released before all their sentences had been served, provided that they demonstrated a willingness to return to the social mainstream through work or other paid activities. That being so, remissions of sentence for work done in detention could not be likened to measures imposed following conviction for a ‘criminal offence’; instead, they were measures relating to the prisoner's conduct while serving the sentence. In any event there was no question of any ‘severity’ as they always benefited the prisoner concerned by bringing forward the date of release.

The Government further submitted that the Chamber judgment was inconsistent with the Court's case-law on the question to what extent a person should be able, when committing an offence, to predict the exact term of imprisonment he or she would incur. As remissions of sentence for work done in detention were purely a prison matter, the Supreme Court could not be criticised for having departed from previous practice with regard to the application of remissions of sentence, as the change had had no effect on the rights enshrined in Article 7. The Court had never held that the foreseeability requirement extended to the exact length of the sentence to be served taking into account sentence adjustments, remissions, pardons or any other factors affecting the execution of the sentence. Such factors were impossible to foresee and to calculate ex ante.

Lastly, the Government submitted that the implications of the Chamber judgment were open to dispute as they shed doubt on the value and purpose the Court itself had attributed to case-law in criminal and prison matters (Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001-II). The Chamber had considered that a single judgment given in 1994 — faulty albeit confirmed by administrative practice — should prevail over case-law established by the Supreme Court and endorsed by the Constitutional Court, even though the latter case-law was more in keeping with the wording of the law in force at the material time. A judicial interpretation respectful of the letter of the applicable law could not, as a matter of principle, be said to be unforeseeable.

The Court notes at the outset that the legal basis for the applicant's various convictions and prison sentences was the Criminal Code of 1973, the criminal law applicable at the time when the offences were committed (1982–1987), which the applicant has not disputed.

The Court observes that the parties' submissions mainly concern the calculation of the total term of imprisonment the applicant should serve in accordance with the rules concerning the maximum term of imprisonment in respect of combined sentences, on the one hand, and the system of remissions of sentence for work done in detention as provided for in the Criminal Code of 1973, on the other. The Court notes in this connection that, by a decision adopted on 30 November 2000 on the basis of section 988 of the Criminal Procedure Act and Article 70.2 of the Criminal Code of 1973, the Audiencia Nacional fixed the maximum term of imprisonment the applicant should serve in respect of all her prison sentences at thirty years (see paragraph 14 above). It further notes that, after having deducted from that thirty-year maximum term the remissions of sentence granted to the applicant for work done in detention, on 24 April 2008 the Murcia Prison authorities proposed 2 July 2008 to the Audiencia Nacional as the date for the applicant's final release (see paragraph 16 above). On 19 May 2008 the Audiencia Nacional asked the prison authorities to change the proposed date and calculate a new date for the applicant's release based on the new approach — the so-called ‘Parot doctrine’ — adopted by the Supreme Court in judgment no. 197/2006 of 28 February 2006, according to which any applicable adjustments and remissions of sentence should be applied successively to each individual sentence until such time as the prisoner had finished serving the thirty-year maximum term of imprisonment (see paragraphs 17, 18 and 39–42 above). Lastly, the Court observes that in application of this new case-law the Audiencia Nacional fixed the date of the applicant's final release at 27 June 2017 (see paragraph 20 above).

The applicant submitted that Article 5 § 1 of the Convention also enshrined requirements as to the quality of the law which meant that a domestic law authorising deprivation of liberty had to be sufficiently clear and foreseeable in its application. She further submitted that Article 5 applied to the right of a convicted person to early release where the legal provisions establishing the right did not make it conditional or discretionary but applicable to anyone who met the legal conditions of entitlement (Grava, cited above, §§ 31–46), irrespective of whether the measure related to the sentence proper or to its execution for the purposes of Article 7. She argued that the extension of the sentence and/or of its effective duration had not been reasonably foreseeable and, in the alternative, that the substance of the penalty imposed and/or the manner of its execution and/or its effective duration had not been reasonably foreseeable either.

The Government submitted that the Chamber judgment had departed from the Court's case-law concerning Article 5 of the Convention, in particular the Kafkaris and M. v. Germany judgments cited above. They argued that in the present case there was a perfect causal link between the penalties imposed for the numerous serious crimes the applicant had committed and the length of time she had spent in prison. The judgments by which she had been convicted had stated that she would have to spend thirty years in prison, as had the decision of 2000 to combine the sentences and fix a maximum term of imprisonment and the decision of 2001 setting the date of the applicant's release at 27 June 2017.

Sub-paragraphs (a) to (f) of Article 5 § 1 of the Convention contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see M. v. Germany, cited above, § 86). Article 5 § 1 (a) permits ‘the lawful detention of a person after conviction by a competent court’. Having regard to the French text, the word ‘conviction’, for the purposes of Article 5 § 1 (a), has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence (see Guzzardi v. Italy, 6 November 1980, § 100, Series A no. 39), and the imposition of a penalty or other measure involving deprivation of liberty (see Van Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A no. 50).

Furthermore, the word ‘after’ in sub-paragraph (a) does not simply mean that the detention must follow the ‘conviction’ in point of time: in addition, the ‘detention’ must result from, ‘follow and depend upon’ or occur ‘by virtue of’ the ‘conviction’. In short, there must be a sufficient causal connection between the two (see Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114, § 42; Stafford v. the United Kingdom [GC], no. 46295/99, § 64, ECHR 2002-IV; Kafkaris, cited above, § 117; and M. v. Germany, cited above, § 88). However, with the passage of time the link between the initial conviction and the extension of the deprivation of liberty gradually becomes less strong (see Van Droogenbroeck, cited above, § 40). The causal link required under sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release, or to redetain a person, was based on grounds that were inconsistent with the objectives of the sentencing court, or on an assessment that was unreasonable in terms of those objectives. Where that was the case a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5 (see Weeks, cited above, § 49, and Grosskopf v. Germany, no. 24478/03, § 44, 21 October 2010).

It is well established in the Court's case-law on Article 5 § 1 that all deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be ‘lawful’. Where the ‘lawfulness’ of detention is in issue, including the question whether ‘a procedure prescribed by law’ has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Kafkaris, cited above, § 116, and M. v. Germany, cited above, § 90). The ‘quality of the law’ implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application to avoid all risk of arbitrariness (see Amuur v. France, 25 June 1996, § 50, Reports 1996-III). The standard of ‘lawfulness’ set by the Convention requires that all law be sufficiently precise to allow the person — if need be, with appropriate advice — to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Baranowski v. Poland, no. 28358/95, § 52, ECHR 2000-III; M. v. Germany, cited above, § 90; and Oshurko v. Ukraine, no. 33108/05, § 98, 8 September 2011). Where deprivation of liberty is concerned, it is essential that the domestic law define clearly the conditions for detention (see Creangă v. Romania [GC], no. 29226/03, § 120, 23 February 2012).

Lastly, the Court reiterates that although Article 5 § 1 (a) of the Convention does not guarantee, in itself, a prisoner's right to early release, be it conditional or final (see İrfan Kalan v. Turkey (dec.), no. 73561/01, 2 October 2001, and Çelikkaya v. Turkey (dec.), no. 34026/03, 1 June 2010), the situation may differ when the competent authorities, having no discretionary power, are obliged to apply such a measure to any individual who meets the conditions of entitlement laid down by law (see Grava, cited above, § 43; Pilla v. Italy, no. 64088/00, § 41, 2 March 2006; and Şahin Karataş v. Turkey, no. 16110/03, § 37, 17 June 2008).

The Court observes first of all that as the applicant rightly pointed out, the distinction made for the purposes of Article 7 of the Convention between the ‘penalty’ and the ‘execution’ of the penalty is not decisive in connection with Article 5 § 1 (a). Measures relating to the execution of a sentence or to its adjustment can affect the right to liberty protected by Article 5 § 1, as the actual duration of deprivation of liberty depends on their application, among other things (see, for example, Grava, cited above, §§ 45 and 51, and, concerning the transfer of prisoners between States, Szabó v. Sweden (dec.), no. 28578/03, ECHR 2006-VIII). While Article 7 applies to the ‘penalty’ as imposed by the sentencing court, Article 5 applies to the resulting detention.

In the present case the Court has no doubt that the applicant was convicted by a competent court in accordance with a procedure prescribed by law, within the meaning of Article 5 § 1 (a) of the Convention. Indeed, the applicant did not dispute that her detention was legal until 2 July 2008, the date initially proposed by the prison authorities for her final release. The Court must therefore establish whether the applicant's continued detention after that date was ‘lawful’ within the meaning of Article 5 § 1 of the Convention.

The Court notes that in eight different sets of proceedings the Audiencia Nacional found the applicant guilty of various offences linked to terrorist attacks. In application of the Criminal Code in force at the time when the offences were committed, the applicant was given prison sentences totalling over 3,000 years (see paragraphs 11–12 above). In most of those judgments, as well as in its decision of 30 November 2000 to combine the sentences and set a maximum term of imprisonment, the Audiencia Nacional indicated that the applicant was to serve a maximum term of thirty years' imprisonment in accordance with Article 70.2 of the Criminal Code of 1973 (see paragraphs 11 and 14 above). The Court notes that the applicant's detention has not yet attained that maximum term. There is clearly a causal link between the applicant's convictions and her continuing detention after 2 July 2008, which resulted respectively from the guilty verdicts and the maximum thirty-year term of imprisonment fixed on 30 November 2000 (see, mutatis mutandis, Kafkaris, § 120).

However, the Court must examine whether the ‘law’ authorising the applicant's continuing detention beyond 2 July 2008 was sufficiently foreseeable in its application. Compliance with the foreseeability requirement must be examined with regard to the ‘law’ in force at the time of the initial conviction and throughout the subsequent period of detention. In the light of the considerations that led it to find a violation of Article 7 of the Convention, the Court considers that at the time when the applicant was convicted, when she worked in detention and when she was notified of the decision to combine the sentences and set a maximum term of imprisonment, she could not have foreseen to a reasonable degree that the method used to apply remissions of sentence for work done in detention would change as a result of a departure from case-law by the Supreme Court in 2006, and that the new approach would be applied to her.

The Court notes that the application of the departure from case-law to the applicant's situation effectively delayed the date of her release by almost nine years. She has therefore served a longer term of imprisonment than she should have served under the domestic legislation in force at the time of her conviction, taking into account the remissions of sentence she had already been granted in conformity with the law (see, mutatis mutandis, Grava, cited above, § 45).

The Court concludes that since 3 July 2008 the applicant's detention has not been ‘lawful’, in violation of Article 5 § 1 of the Convention.

The applicant argued that the fact that the Court had never made use in a similar case of its exceptional power to indicate individual measures was irrelevant. She submitted that the Court had the power to indicate the measures to be taken and that when the nature of the violation found did not leave ‘any real choice as to the measures required to remedy it’, it could decide to indicate only one such measure. She also criticised the Government for not having indicated which remedies other than her release were available should the Court find violations of Articles 5 and 7 of the Convention.

The Government submitted that in similar cases concerning the retroactive application of legislative changes resulting in the extension of a convicted person's detention the Court had never used its exceptional power to indicate individual measures for the execution of its judgment (they cited M. v. Germany, cited above). In this connection they pointed out that, although it had found a violation of Article 7 in the Kafkaris case (cited above) because the legislation failed to meet the requisite standard, the Court had not indicated any measure concerning the release of the applicant, who was still in prison when the judgment was delivered (the Government also referred to Kafkaris v. Cyprus (dec.), no. 9644/09, 21 June 2011).

The applicant claimed EUR 60,000 for the non-pecuniary damage she had allegedly sustained, and the reimbursement of the costs and expenses incurred in the proceedings before the Grand Chamber, in addition to those already awarded by the Chamber. She submitted no receipts for the costs and expenses incurred in the proceedings before the Grand Chamber.

The Government submitted that an award of compensation by the Court to a person convicted of acts as murderous as those committed by the applicant — who had been found guilty in judicial proceedings that met all the requirements of a fair trial — would be difficult to understand. They argued that in the Kafkaris judgment (cited above), ‘having regard to all the circumstances of the case’, the Court had considered that the finding of a violation of Article 7 of the Convention constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered.

The Court accepts that in the Kafkaris judgment it considered that a finding of a violation constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered. In that judgment, however, it had found no violation of Article 5 § 1, and its finding of a violation of Article 7 concerned only the quality of the law. The present case is different, the Court having found that the applicant's continued detention after 2 July 2008 is in breach of Article 5 § 1, and that she has had to serve a heavier penalty than the one that was imposed, in disregard of Article 7 of the Convention (see, mutatis mutandis, M. v. Germany, cited above, § 141). This must have caused the applicant non-pecuniary damage which cannot be compensated solely by these findings of violations.

Having regard to all the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 30,000 under this head.

According to the Court's case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).

The Grand Chamber notes that the applicant was awarded EUR 1,500 for costs and expenses incurred in the proceedings before the Chamber. As she has submitted no documentary evidence of the costs and expenses incurred in the proceedings before the Grand Chamber (compare Tănase v. Moldova [GC], no. 7/08, § 193, ECHR 2010), she should be awarded EUR 1,500 in respect of all costs and expenses.

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.