EHRM, 17-09-2009, nr. 10249/03

The applicant noted in the first place that, according to the case-law of the Italian courts (Court of Cassation, combined divisions, judgment of 6 March 1992 in the Merletti case), Article 442 of the Code of Criminal Procedure, which sets out the penalty to be imposed when the summary procedure has been adopted is — despite its inclusion in the CCP — a provision of substantive criminal law. He argued that, unlike the provisions examined by the Grand Chamber in the Kafkaris v. Cyprus case (no. 21906/04, 12 February 2008), that clause did not concern the procedure for execution of sentence but the fixing of the sentence. It should therefore be considered a ‘criminal law’ for the purposes of Article 7 of the Convention.

The applicant emphasised that the last hearing before the Rome preliminary hearings judge began on 24 November 2000 at 10.19 a.m. (see paragraph 12 above). The preliminary hearings judge gave judgment immediately after the hearing. On the same day Legislative Decree no. 341 was published in the Official Gazette and came into force. The Official Gazette appeared during the afternoon (see paragraph 33 above). The applicant argued on that basis that when the preliminary hearings judge gave judgment Legislative Decree no. 341 was not yet in force and could not have been known of.

The applicant accordingly submitted that he had been the victim of a retrospective application of the criminal law since he had first been sentenced to thirty years' imprisonment and then, pursuant to Legislative Decree no. 341, to life imprisonment.

The Government rejected that argument, observing that Article 7 of the Convention did no more than prohibit any retrospective application of criminal law in relation to ‘the time the criminal offence was committed’. They observed that the provisions of the Criminal Code which established penalties for the offences of which the applicant was convicted had not been amended after 2 September 1999, the date when they were committed. They noted in particular that the offences concerned were punishable by life imprisonment with daytime isolation and that the penalty imposed by the national courts had not exceeded that limit.

The provisions of the Code of Criminal Procedure should not be taken into account when examining the term penalty contained in Article 7, as it would be inappropriate to enable an individual to weigh up the consequences of a crime he might commit by calculating what reduction of sentence he might be entitled to depending on his choice of procedure. Such an approach would make it impossible to amend the CCP. The nullum crimen sine lege principle concerned only the provisions of substantive criminal law, whereas procedural provisions were normally retrospective, being governed by the tempus regit actum principle. Any other finding would amount to granting a reduction of sentence every time the provisions of the CCP were repealed or amended. Moreover, unlike Article 6, which applied to criminal matters (‘matière pénale’ in the French version), Article 7 of the Convention referred to ‘the criminal offence’. That showed that Article 7 concerned only criminal law, not procedural rules.

In any event, the procedural rules had not been applied retrospectively to the applicant's detriment. The Government observed in that connection that at the time when the crimes were committed (on 2 September 1999), the law did not provide for the possibility of requesting the summary procedure when the offences charged were punishable with life imprisonment. That possibility had been introduced only by Law no. 479 of 16 December 1999. The purpose of the principle enshrined in Article 7 of the Convention was to ensure that offenders knew in advance what acts engaged their criminal responsibility and what penalties they might make themselves liable to, and it could not be accepted that an individual should also be able to take decisions about whether to commit an offence with an eye to what might happen subsequently.

The applicant submitted that Article 7 of the Convention guaranteed not only the non-retrospectiveness of the criminal law but also the principle — set forth explicitly in Article 15 of the United Nations Covenant on Civil and Political Rights, by Article 49 of the European Union's Charter of Fundamental rights and by Article 9 of the American Convention on Human Rights (see paragraphs 35–37 above) — that, in the event of a difference between the law in force at the time of the commission of an offence and later laws, the law to be applied was the law more favourable to the accused. That meant that Article 7 was breached whenever courts imposed a heavier penalty than the one prescribed by the law in force at any time between the commission of the offence and the delivery of judgment. The applicant referred on that point to the dissenting opinion of Judge Popović annexed to the Achour v. France judgment ([GC], no 67335/01, ECHR 2006-…).

He pointed out that in the present case the Code of Criminal Procedure, as amended by Law no. 479 of 1999, provided from 2 January 2000 that where the summary procedure was adopted for offences punishable by life imprisonment (with or without isolation), that penalty was to be replaced with thirty years' imprisonment. However, Legislative Decree no. 341 of 2000 had changed the applicable penalty to the defendant's detriment, requiring a sentence of life imprisonment without isolation. As a result, following an appeal on points of law by the Principal Public Prosecutor, the penalty imposed at first instance had been increased to life imprisonment, which was not the penalty prescribed by the law in force at the time when the applicant had agreed to be tried under the summary procedure.

The applicant submitted that the retrospective application of a provision imposing a ‘heavier penalty’ could not be justified by the fact that the Italian parliament had described Legislative Decree no. 341 of 2000 as a ‘law of authentic interpretation’. Any other conclusion would be incompatible with the principle of the rule of law. Moreover, Legislative Decree no. 341 had not provided an interpretation of the CCP, whose provisions were clear; they had previously been interpreted in the sense that the words ‘life imprisonment’ designated any sentence of imprisonment for life, whether with or without daytime isolation. In reality parliament had used a subterfuge in order to change the rules on the severity of sentence in the context of trial under the summary procedure. That was evidenced by the numerous criticisms made of Legislative Decree no. 341 of 2000 at the time when it was converted into statute law.

The Government rejected that argument. They observed that, unlike Article 15 of the United Nations Covenant on Civil and Political Rights, Article 7 of the Convention did not set forth the right to retrospective application of the more lenient criminal law.

The applicant observed that, if the Court were to accept the Government's argument that Article 442 of the CCP, as amended by Law no. 479 of 1999, was an unclear provision requiring official interpretation, it would have to find a violation of the Convention on the ground that the relevant criminal law lacked clarity and foreseeability. That much was proved by the fact that, in his case, the preliminary hearings judge had interpreted it in the sense that the appropriate sentence was thirty years' imprisonment, whereas the Assize Court of Appeal, with the assistance of the ‘authentic interpretation’ provided by the Government, had decided that life imprisonment was the correct sentence.

The Government submitted that Legislative Decree no. 341 of 2000 was a genuine law of interpretation, meaning a law intended to settle a contested point in domestic law, on which the national courts had given different rulings.

The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see S.W. v. the United Kingdom and C.R. v. the United Kingdom, 22 November 1995, § 34 and § 32 respectively, Series A nos. 335-B and 335-C, and Kafkaris, cited above, § 137).

Article 7 § 1 of the Convention goes beyond prohibition of the retrospective application of criminal law to the detriment of the accused. It also sets forth, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege). 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 (see, among other authorities, Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000-VII).

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 Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A; Achour, cited above, § 41; and Sud Fondi Srl and Others v. Italy, no. 75909/01, § 107, 20 January 2009).

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, and Achour, cited above, § 43).

The notion of ‘penalty’ in Article 7 § 1 of the Convention, like those of ‘civil rights and obligations’ and ‘criminal charge’ in Article 6 § 1, has an autonomous meaning (see in particular, regarding ‘civil rights’, X v. France, 31 March 1992, § 28, Series A no. 234-C, and, on the subject of ‘criminal charges’, Demicoli v. Malta, 27 August 1991, § 31, Series A no. 210). To render the protection offered by Article 7 effective, the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a ‘penalty’ within the meaning of this provision (see Welch v. the United Kingdom, 9 February 1995, § 27, Series A no. 307-A).

The wording of Article 7 § 1, second sentence, indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a ‘criminal offence’. Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure in question; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity (see Welch, cited above, § 28).

Both the Commission and the Court in their case-law have drawn a distinction between a measure that constitutes in substance a ‘penalty’ and a measure that concerns the ‘execution’ or ‘enforcement’ of the ‘penalty’. In consequence, where the nature and purpose of a measure relates to the remission of a sentence or a change in a regime for early release, this does not form part of the ‘penalty’ within the meaning of Article 7 (see Kafkaris, cited above, § 142).

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 Kokkinakis, cited above, §§ 40–41, Cantoni v. France, 15 November 1996, § 29, Reports 1996-V, Coëme and Others, cited above, § 145, and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002).

In consequence of the principle that laws must be of general application, the wording of statutes is not always precise. One of the standard techniques of regulation by rules is to use general categorisations as opposed to exhaustive lists. That means that many laws are inevitably couched in terms which, to a greater or lesser extent are vague, and their interpretation and application depend on practice (see Cantoni, cited above, § 31, and Kokkinakis, cited above, § 40). Consequently, in any system of law, however clearly drafted a legal provision may be, including a criminal law provision, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.

The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain (see Kafkaris, cited above, § 141). Moreover, it is a firmly established part of the legal tradition of the States party to the Convention that case-law, as one of the sources of the law, necessarily contributes to the gradual development of the criminal law (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A). Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001-II).

Foreseeability depends to a considerable degree on the content of the law concerned, the field it is designed to cover and the number and status of those to whom it is addressed. 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 Achour, cited above, § 54).

In 1978 the European Commission of Human Rights expressed the opinion that, unlike Article 15 § 1in fine of the United Nations Covenant on Civil and Political Rights, Article 7 of the Convention did not guarantee the right to a more lenient penalty provided for in a law subsequent to the offence (see X v. Germany, no. 7900/77, Commission decision of 6 March 1978, Decisions and Reports (DR) 13, pp. 70–72). It accordingly declared manifestly ill-founded the complaint of an applicant who alleged that, after their commission, some of the offences he had been charged with had been decriminalised. That ruling has been repeated by the Court, which has reiterated that Article 7 does not afford the right of an offender to application of a more favourable criminal law (see Le Petit v. the United Kingdom (dec.), no. 35574/97, 5 December 2000, and Zaprianov v. Bulgaria (dec.), no. 41171/98, 6 March 2003).

While the Court is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without cogent reason, from precedents laid down in previous cases (see, for example, Chapman v. the United Kingdom [GC], no. 27238/95, § 70, ECHR 2001-I). Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in the respondent State and in the Contracting States in general and respond, for example, to any emerging consensus as to the standards to be achieved (see, among other judgments, Cossey v. the United Kingdom, 27 September 1990, § 35, Series A no. 184, and Stafford v. the United Kingdom [GC], no. 46295/99, §§ 67–68, ECHR-2002-IV). It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see Stafford, cited above, § 68, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI).

The Court considers that a long time has elapsed since the Commission gave the above-mentioned X v. Germany decision and that during that time there have been important developments internationally. In particular, apart from the entry into force of the American Convention on Human Rights, Article 9 of which guarantees the retrospective effect of a law providing for a more lenient penalty enacted after the commission of the relevant offence (see paragraph 36 above), mention should be made of the proclamation of the European Union's Charter of Fundamental Rights. The wording of Article 49 § 1 of the Charter differs — and this can only be deliberate (see, mutatis mutandis, Christine Goodwin, cited above, § 100in fine) — from that of Article 7 of the Convention in that it states: ‘If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable’ (see paragraph 37 above). In the case of Berlusconi and Others, the Court of Justice of the European Communities, whose ruling was endorsed by the French Court of Cassation (see paragraph 39 above), held that this principle formed part of the constitutional traditions common to the member States (see paragraph 38 above). Lastly, the applicability of the more lenient criminal law was set forth in the statute of the International Criminal Court and affirmed in the case-law of the ICTY (see paragraphs 40 and 41 above).

The Court therefore concludes that since the X v. Germany decision a consensus has gradually emerged in Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, has become a fundamental principle of criminal law. It is also significant that the legislation of the respondent State had recognised that principle since 1930 (see Article 2 § 3 of the Criminal Code, cited in paragraph 32 above).

Admittedly, Article 7 of the Convention does not expressly mention an obligation for Contracting States to grant an accused the benefit of a change in the law subsequent to the commission of the offence. It was precisely on the basis of that argument relating to the wording of the Convention that the Commission rejected the applicant's complaint in the case of X v. Germany. However, taking into account the developments mentioned above, the Court cannot regard that argument as decisive. Moreover, it observes that in prohibiting the imposition of ‘a heavier penalty … than the one that was applicable at the time the criminal offence was committed’, paragraph 1 in fine of Article 7 does not exclude granting the accused the benefit of a more lenient sentence, prescribed by legislation subsequent to the offence.

In the Court's opinion, it is consistent with the principle of the rule of law, of which Article 7 forms an essential part, to expect a trial court to apply to each punishable act the penalty which the legislator considers proportionate. Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the commission of the offence would mean applying to the defendant's detriment the rules governing the succession of criminal laws in time. In addition, it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State — and the community it represents — now consider excessive. The Court notes that the obligation to apply, from among several criminal laws, the one whose provisions are the most favourable to the accused is a clarification of the rules on the succession of criminal laws, which is in accord with another essential element of Article 7, namely the foreseeability of penalties.

In the light of the foregoing considerations, the Court takes the view that it is necessary to depart from the case-law established by the Commission in the case of X v. Germany and affirm that Article 7 § 1 of the Convention guarantees not only the principle of non-retrospectiveness of more stringent criminal laws but also, and implicitly, the principle of retrospectiveness of the more lenient criminal law. That principle is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant.