ECHR Article 7-1
Nulla poena sine lege
Power of public prosecutor to decide in which court to try a person accused of drug-trafficking, and therefore the range of sentence: violation
Facts – In 2003 the applicant was charged with possession of illegal drugs not intended for his exclusive use. The relevant domestic law provided two different ranges of sentence for that offence, namely four years to life imprisonment on conviction by the Criminal Court, or six months to ten years on conviction by the Court of Magistrates. Under domestic law, it was the public prosecutor who decided in which court the accused would be tried. The applicant was tried in the Criminal Court and sentenced to fifteen years’ imprisonment and a EUR 35,000 fine. The judgment was upheld on appeal. In 2009 the applicant sought constitutional redress on the grounds that the public prosecutor’s power to decide the trial court violated the impartiality requirement. In dismissing that complaint, the Constitutional Court held that that power could not be equated with the powers of a judge, as the public prosecutor had no control over the finding of guilt. Nevertheless it considered that it would be desirable, for the sake of fairness and transparency, to establish criteria to assist public prosecutors in the choice of appropriate forum.
Law – Article 7: While it was clear that the sentence imposed on the applicant had been established by law and had not exceeded the statutory limits, the law did not make it possible for him to know, before the decision of the public prosecutor determining the court where he was to be tried, which of the two ranges of sentence would apply to him. The domestic case-law seemed to indicate that such decisions were at times unpredictable. The applicant would not have been able to know the punishment applicable to him even if he had obtained legal advice on the matter, as the decision was solely dependent on the prosecutor’s discretion to determine the trial court. The criteria to be applied by the prosecutor when taking his decision were not specified in any legislative text and had not been clarified by the courts. The law did not provide any guidance on what would amount to a more serious offence or a less serious one. The lack of such guidelines had also been noted by the Constitutional Court. Thus, the law did not determine with any degree of precision the circumstances in which a particular range of sentence applied. The prosecutor had in effect an unfettered discretion to decide which minimum penalty would be applicable with respect to the same offence. His decision was inevitably subjective and left room for arbitrariness, particularly given the lack of procedural safeguards. The domestic courts were bound by that decision and could not impose a sentence below the minimum established by law despite any concerns they might have as to the use of the prosecutor’s discretion. The relevant legal provision had therefore failed to satisfy the foreseeability requirement and provide effective safeguards against arbitrary punishment.
Conclusion: violation (by six votes to one).
Article 41: EUR 1,000 in respect of non-pecuniary damage.
42931/10 – HEJUD, [2013] ECHR 83, 42931/10 – Legal Summary, [2013] ECHR 281, (2013) 57 EHRR 32
Bailii, Bailii
European Convention on Human Rights
Human Rights
Updated: 24 August 2021; Ref: scu.472436