EHRM, 29-03-2006, nr. 67335/01

The Government noted, among other things, that recidivism was an aggravating circumstance affecting the sentence that could be imposed for the second offence and not the first. Its purpose was to counter the danger posed by those who persisted in offending despite warnings from the courts. Although it was indeed intended to have a deterrent effect, it did not contain any probationary element. In that respect, it differed from other provisions of French law that were designed either to lessen the risk of social exclusion or to encourage the social reintegration of offenders, such as suspended sentences with or without probation. That fundamental difference explained why, contrary to what the applicant maintained, the expiry of the period within which recidivism was possible under the law as worded in 1984 was not irrevocable; the new rules were applicable where the second offence had been committed after the legislation had been amended.

Recidivism was made up of two components. The first was a final, and still valid, criminal conviction by a French court. The second was the commission of a further offence. Recidivism could be general or specific in nature, and unlimited or limited in time. In the instant case it had been general and time-limited. The applicant had first been convicted on 16 October 1984 of an offence punishable by ten years' imprisonment; that conviction constituted the first component of recidivism. He had completed his sentence on 12 July 1986, which was the starting point of the ten-year period for ‘time-limited’ recidivism, as provided in the first paragraph of Article 132-9 of the new Criminal Code. The second offence, committed in 1995 — before the expiry of that ten-year period — had indeed constituted the second component of recidivism as defined by law, as the Lyons Court of Appeal had found in the applicant's case.

The Government further pointed out that the first component of recidivism had not simply been expunged, since the applicant's 1984 conviction had not ceased to have effect after 12 July 1991 and remained in his criminal record, the purpose of which was to provide information about a person's previous convictions so that any appropriate inferences could be drawn. They did not dispute that if the applicant had committed a second offence between 12 July 1991 and the day before the new legislation came into force, he would not have been classified as a recidivist and could therefore not have received as severe a sentence. However, if a State could introduce new criminal offences, it was a fortiori entitled to increase the penalties to which offenders were liable, taking account where appropriate of their previous convictions.

The Government observed that the applicant had been sentenced to twelve years' imprisonment for an offence committed in 1995. His sentence had indisputably been provided for in the legislation applicable on that date, namely Article 222-37 of the Criminal Code, concerning drug offences, and Article 132-9 of the same code, concerning recidivism, of which the 1995 offence constituted the second component. The penalty imposed on him, having been applicable at the time when the offence had been committed, had therefore satisfied the requirements of Article 7.

The issue of the application of successive criminal laws remained to be addressed. The Government considered that the Court of Cassation, in its judgment of 29 February 2000, had provided a clear response by holding that for new rules on recidivism to be applicable immediately, it was sufficient for the offence constituting the second component to have been committed after their entry into force. That judicial interpretation was justified by the fact that the circumstance of recidivism followed from the second offence and the consequent increase in the sentence related to the commission of that offence alone. Accordingly, the applicant had been fully aware of the consequences when he had committed the 1995 offence; he had known what penalty he faced, in accordance with the law applicable at that precise time. The approach taken by the Court in the case of Coëme and Others v. Belgium (nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, ECHR 2000-VII) could therefore not be applied to the instant case. Unlike suspended sentences with probation, which were governed by rules laid down by the court at the time of the conviction, recidivism was solely governed and defined by the law, which specified the conditions in which it was applicable. In other words, there was no comparison between recidivism and suspended sentences with or without probation. The requirements for applying the rules on recidivism had been satisfied in the instant case; furthermore, they did not allow for the possibility of recidivism being unlimited in time.

Under the rule governing successive conflicting laws, the question whether the applicant should be treated as a recidivist had to be assessed with reference to 1995; accordingly, any notion of retrospective application could be ruled out. The Government pointed out that the relevant case-law of the Criminal Division of the Court of Cassation had been particularly clear and settled since a judgment of 31 August 1893 and had, moreover, not called into question the idea that recidivism was subject to a time-limit and ceased to apply once the ten-year period had expired.

The applicant submitted, in particular, that while increasing the sentences applicable to recidivists was justified by the greater danger they posed on account of their persistence despite warnings from the courts, the concept of recidivism was considered above all to be a means of ensuring exemplary conduct on the part of those who had committed an offence of some seriousness, through a form of probation resulting from the risk of receiving an increased penalty in the event of their reoffending. The rules on recidivism were therefore intended to contribute to reforming convicted persons; that aim, which formed one of the main trends in modern crime policies, accordingly had some bearing on the determination of issues concerning the application of successive laws. In a democratic society the requirements of protecting the social order had to be reconciled with the aim of reforming offenders. He observed that Article 7 of the Convention related to the requirement of legal certainty.

The applicant noted that Article 132-9 of the new Criminal Code had doubled the period between the two components of recidivism and that in order to apply these new, harsher provisions to him, the Court of Cassation had laid down a rule which, albeit simple, was extremely questionable in the light of Article 7, not least because it placed sole emphasis on the second component. The applicant considered that the first component of recidivism, which had been totally ignored by the Court of Cassation, was nevertheless an essential aspect of the process. He complained, firstly, that the Court of Cassation had applied harsher legal provisions of which he could not have been aware on the date of his initial conviction and, secondly, that the retrospective application of the new Criminal Code had brought back into being the possibility of recidivism even though its first component had quite simply ceased to exist.

A person with a previous conviction was entitled to have it disregarded after the expiry of the period laid down in the legislation on recidivism, whether this was a probationary period or a limitation period for enforcing the sentence. In accordance with the requirements of foreseeability and legal certainty under Article 7 of the Convention, a law that had come into force after that time could not revive the first component by extending the period in question.

The applicant pointed out that he had first been convicted in 1984, that he had finished serving his prison sentence on 12 July 1986 and that, consequently, he had ceased to be a potential recidivist five years later; that had, moreover, been his position under the criminal law for a number of years. He did not contest either the State's right to pass tougher sentences or the possibility of amending the rules on recidivism, for example by doubling the relevant statutory period as in the present case, but rather the fact that the new legislation conflicted with the previous legislation, under which time had no longer been running but had already expired several years previously. He considered that the period within which recidivism was possible had expired in respect of the 1995 offence, by analogy with the rules on time-limits for bringing a prosecution or enforcing a sentence. Accordingly, although the new legislation had been applicable to the offence committed in 1995, he should have been dealt with as a first offender and not a recidivist in respect of that offence, unless the new legislation were allowed to be extensively construed to his detriment.

The Court reiterates that Article 7 of the Convention embodies, in general terms, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and prohibits in particular the retrospective application of the criminal law where it is to an accused's disadvantage (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 22, § 52). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy. It follows that offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable (see, among other authorities, Cantoni v. France, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1627, § 29).

When speaking of ‘law’ Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statute law as well as case-law and implies qualitative requirements, including those of accessibility and foreseeability (see, among other authorities, Cantoni, cited above, p. 1627, § 29; Coëme and Others, cited above, § 145; and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002).

The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision (see Coëme and Others, cited above, § 145).

The applicant complained that he had been deemed to be a recidivist when tried for, and convicted of, the offence committed in 1995. It is clear, therefore, that the Court must examine the rules on recidivism and the way in which they were applied in the circumstances of the case. It considers, however, that matters relating to the existence of such rules, the manner of their implementation and the reasoning behind them fall within the power of the High Contracting Parties to determine their own criminal policy, which is not in principle a matter for it to comment on. The High Contracting Parties are likewise free to amend the penalties applicable for criminal offences, notably by increasing them, without any issue being raised under the provisions of the Convention, as the applicant accepted.

The legal rules governing recidivism in France require two components, the first being a criminal conviction with final effect and the second the commission of a further offence, which may be the same as or equivalent to the first offence (specific recidivism) or a separate offence (general recidivism). It may be limited in time, as in the instant case, or unlimited.

Recidivism, which is defined by law, is an aggravating factor —in personam and not in rem, since it is linked to the offender's conduct — in relation to the second offence, warranting a harsher sentence, where appropriate, for the recidivist. The Court considers that recidivism can only result from the commission of a second offence; however, for the offender to be legally classified as a recidivist, with the consequences this entails in terms of the penalties faced, the second offence must, in addition, have been committed within the statutory period for the purposes of recidivism as laid down in the relevant legislation in force at the time of the commission of that offence.

Consequently, the issue before the Court is indeed whether the principle that only the law can define a crime and prescribe a penalty was observed. The Court must, in particular, ascertain whether in the present case the text of the statutory rule, read in the light of the accompanying interpretative case-law, satisfied the requirements of accessibility and foreseeability at the material time.

The Court notes that the applicant was initially convicted of drug trafficking on 16 October 1984 and that he finished serving his sentence on 12 July 1986. He was subsequently convicted of further drug offences committed in the course of 1995 and up to 7 December of that year. In their respective decisions of 14 April and 25 November 1997 the Lyons Criminal Court and Court of Appeal found the applicant guilty of offences under Article 222-37 of the Criminal Code and sentenced him in accordance with that provision and with Article 132-9 of the same code, on recidivism.

The Court notes that Article 132-9 provides that the maximum sentence and fine that may be imposed are to be doubled in the event of recidivism and that the applicable period is no longer five years, as prescribed by the former legislation, but ten years from the expiry of the previous sentence or of the time allowed for its enforcement. As the new statutory rules came into force on 1 March 1994, they were applicable when the applicant committed fresh offences in 1995, so that he was a recidivist in legal terms as a result of those offences (see paragraph 46 above).

The applicant nonetheless observed that from 13 July 1991 to 1 March 1994 it would not have been legally possible to treat him as a recidivist if he had committed those offences. In his opinion, that implied that the relevant period had expired with final effect.

The Court notes, however, that the applicant's initial conviction of 16 October 1984 had not been expunged and remained in his criminal record. The domestic courts were therefore entitled to take it into account as the first component of recidivism, it being understood, moreover, that the conviction and the fact that it constituted res judicata were not altered or affected in any way by the enactment of the new legislation. In this connection, the Court cannot accept the applicant's argument (see paragraph 40 above) that the expiry of the relevant period for the purposes of recidivism, as provided at the time of his first offence, had afforded him the right to have his first offence disregarded (‘droit à l'oubli’), there being no provision for any such right in the applicable legislation. Admittedly, his position would have been different had he been given a suspended sentence, since in that case, under the respondent State's legal system, the fact that he had received no further convictions within the statutory period in force at the time of the initial conviction would have deprived that conviction of all future effect. However, no such provisions exist in respect of a non-suspended sentence subject to the rules on recidivism and, as it has already observed (see paragraph 44 above), the Court considers that a State's choice of a particular criminal-justice system is in principle outside the scope of the supervision it carries out at European level, provided that the system chosen does not contravene the principles set forth in the Convention.

The Court further observes that there is long-established case-law of the Court of Cassation on the question whether a new law extending the time that may elapse between the two components of recidivism can apply to a second offence committed after its entry into force. The Criminal Division of the Court of Cassation — and the applicant did not dispute this — has taken a clear and consistent position since the late nineteenth century to the effect that where a law introduces new rules on recidivism, for them to apply immediately it is sufficient for the offence constituting the second component of recidivism to have been committed after the law's entry into force. Such case-law was manifestly capable of enabling the applicant to regulate his conduct (see, among other authorities, the following judgments: Kokkinakis, cited above, p. 19, § 40; Cantoni, cited above, pp. 1628-29, § 34; and Streletz, Kessler and Krentz v. Germany[GC], nos. 34044/96, 35532/97 and 44801/98, § 82, ECHR 2001-II).

Accordingly, there is no doubt that the applicant could have foreseen that by committing a further offence before 13 July 1996, the date on which the statutory ten-year period expired, he ran the risk of being convicted as a recidivist and of receiving a prison sentence and/or a fine that was liable to be doubled. He was thus able to foresee the legal consequences of his actions and to adapt his conduct accordingly.

In any event, a law may still satisfy the requirement of ‘foreseeability’ where the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, Cantoni, cited above, p. 1629, § 35).

Having regard to the foregoing, the Court finds that both the relevant case-law and statute law were ‘foreseeable’ as to their effect for the purposes of Article 7 of the Convention.

The Court considers, moreover, that the applicant's complaint in fact concerns the application of successive criminal laws.

That being so, it cannot see any inconsistency in the fact that the applicant may have been in different legal positions, particularly as regards the period between 13 July 1991 and 28 February 1994 and the period following the entry into force of the new Criminal Code on 1 March 1994.

Similarly, no problem can arise in terms of the retrospective application of the law since the instant case merely concerned successive statutes designed to apply solely with effect from their entry into force.

Admittedly, the domestic courts did take the applicant's 1984 conviction into consideration, treating it as the first component of recidivism in his case. Nevertheless, the fact that the applicant's previous criminal status was subsequently taken into account by the trial and appeal courts, a possibility resulting from the fact that his 1984 conviction remained in his criminal record, is not in breach of the provisions of Article 7, seeing that the offence for which he was prosecuted and punished took place after the entry into force of Article 132-9 of the new Criminal Code. In any event, the practice of taking past events into consideration should be distinguished from the notion of retrospective application of the law, stricto sensu.

In conclusion, the sentence imposed on the applicant, who was found guilty and deemed to be a recidivist in the proceedings in issue, was applicable at the time when the second offence was committed, pursuant to a ‘law’ which was accessible and foreseeable as to its effect. Mr Achour should therefore have known at the material time precisely what the legal consequences of his criminal acts would be.

There has therefore been no violation of Article 7 of the Convention.