(Grand Chamber) The applicant murdered his wife on 2 September 1999; the offence was punishable by life imprisonment. On 18 February 2000, he agreed to be tried under a summary procedure. It lacked some of the safeguards of a full trial but carried the advantage of reducing the available sentence to 30 years. That provision came into force in December 1999. On 24 November 2000 he was found guilty and sentenced. The court noted his liability to a life sentence, but imposed a 30 year term, honouring the terms of the summary procedure. On the same day a new legislative decree took effect. It amended the provision relating to summary procedure which reduced life to 30 years. It provided that in the event of trial under the summary procedure life imprisonment could be imposed in place of life with daytime isolation. On an appeal hearing in January 2002, the applicant was sentenced to life imprisonment pursuant to the amending legislation. Further domestic appeals by the applicant against his life sentence were dismissed.
Held: The applicant’s Article 6 and 7 challenges were upheld and the 30 year term reinstated.
In relation to the Article 7 challenge the Court departed from its earlier decision in X v Germany [Application No 7900/77] that the Article did not guarantee the right to a more lenient penalty provided for in a law subsequent to the offence.
The Grand Chamber said:
‘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 and 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 that 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 appropriate. 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.’
Judges:
Jean-Paul Costa, P
Citations:
10249/03, [2009] ECHR 1297, (2010) 51 EHRR 12
Links:
Statutes:
European Convention on Human Rights
Jurisdiction:
Human Rights
Cited by:
See Also – Scoppola v Italy (No 2) ECHR 8-Jun-2011
Execution of the judgment of the European Court of Human Rights . .
Cited – Docherty, Regina v SC 14-Dec-2016
After conviction on his own admission for wounding with intent, and with a finding that he posed a threat to the public, the defendant was sentenced to imprisonment for public protection. Such sentences were abolished with effect from the day after . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Criminal Sentencing
Updated: 29 March 2022; Ref: scu.375506