Last Updated on April 22, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Other rights in criminal proceedings
No punishment without law (Article 7)
The Bergmann v. Germany[129] judgment concerned the retrospective prolongation of preventive detention ordered by a criminal court and the notion of a “penalty”.
The applicant was convicted in 1986 of serious violent sexual offences and sentenced to a term of imprisonment. The sentencing court also ordered that the applicant be placed in preventive detention on account of his dangerousness. On the expiry of his prison sentence the applicant was placed in preventive detention. According to the law applicable at the time of the commission of the offences, preventive detention could not exceed ten years. However, at the end of the ten-year period, the measure was prolonged in the applicant’s case. The courts responsible for the execution of sentences relied in this connection on legislation enacted in 1998, and thus after the applicant’s conviction, which authorised the imposition of preventive detention without a maximum duration and, where such measure was already in place, its prolongation with retrospective effect. In addition, the same courts, on the basis of new legislation which came into force in June 2013, concluded that the applicant was suffering from a mental disorder (sexual sadism) which necessitated medical treatment and therapy, and thus the prolongation of his preventive detention. The courts were satisfied that there was a high risk that, if released, the applicant would reoffend as a result of that disorder.
In the Convention proceedings, the applicant complained, among other things, that the retrospective extension of his preventive detention beyond the former ten-year maximum duration had resulted in the imposition of a heavier penalty, in breach of the second sentence of Article 7 § 1 of the Convention. However, the Court did not agree.
The judgment is noteworthy in that the Court ruled, contrary to the Government’s contention, that preventive detention imposed pursuant to the 1998 legislation, or its retroactive prolongation as in the applicant’s case, constituted in principle a “penalty” for the purposes of Article 7 § 1. It noted that the measure entailed a deprivation of liberty of indefinite duration and was imposed by the criminal courts following conviction for a criminal offence. The Court thus confirmed that the domestic classification of a measure was not decisive and that the notion of “penalty” must be given an autonomous meaning.
The Court had no difficulty in accepting that the prolongation of the applicant’s preventive detention constituted a heavier measure than the one applicable at the time the applicant committed the offences of which he was convicted.
That said, it is of further note that the Court concluded that the prolongation of the applicant’s preventive detention could not in the circumstances of his case be classified as a penalty. It had regard, among other things, to the following considerations:
(i) The retrospective prolongation of the measure was based on the conclusion that the applicant was suffering from a mental disorder, a factor which had not been of relevance when the measure was first ordered by the sentencing court back in 1986.
(ii) The applicant was prescribed individualised therapeutic care in a less coercive environment than an ordinary prison in order to reduce his dangerousness resulting from his mental disorder.
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The judgment in Dallas v. the United Kingdom[130] concerned the allegedly unforeseeable application of the law on contempt for breach of a judge’s direction to jurors prohibiting them from researching on the Internet the case being tried before them.
The applicant was selected to serve on a jury in a criminal trial. The jury retired to consider their verdict at the end of the trial. After the court had risen, one of the jurors notified the court that the applicant, contrary to the judge’s direction to the jury at the time of its empanelment, had researched on the Internet the defendant’s previous convictions and had informed the other jurors of her findings. The trial judge subsequently discharged the jury and the trial was aborted. The applicant was later convicted of contempt of court. The domestic court found that the applicant had deliberately disobeyed a clear direction by the trial judge to the members of the jury and had not merely risked causing prejudice to the administration of justice through her Internet research but had caused such prejudice by disclosing her findings to her fellow jurors.
In the Convention proceedings, the applicant alleged that she had been found guilty of a criminal offence on account of an act which did not constitute a criminal offence at the time it was committed, in breach of Article 7 of the Convention. She contested in particular the fact that the court had not inquired as to the existence of a “real risk” of prejudice to the administration of justice and whether she had had an intention to create such risk. For the applicant, these were essential aspects of the offence of contempt as defined in domestic law. However, the domestic court had confined itself to ascertaining whether she had breached a court order which, moreover, had not carried a warning that non-compliance would entail the imposition of a criminal sanction.
The Court disagreed with the applicant. In so doing, it referred to the accessibility and foreseeability requirements which the notion of “law” must satisfy and noted also that the process of judicial interpretation may lead to the gradual clarification of the rules of criminal liability on a case-by-case basis (Del Río Prada v. Spain[131]).
For the Court, in having regard to the actual prejudice caused by the applicant’s conduct, the domestic court could not be said to have applied a lower threshold than the “real risk” test contained in the common law. As to the matter of intent, it found that the domestic court had not reached an unforeseeable conclusion in stating that intent could be demonstrated by the foreseeability of the consequences of one’s actions, in the instant case the breach by the applicant of the trial judge’s direction to the jury. The domestic court had not introduced a new test but clarified as a matter of judicial interpretation the relevant domestic law on the manner in which intent could be proved. Finally, the fact that no specific warning was set out in the trial judge’s direction had not undermined the clarity of that direction. The consequences of contempt of court on account of Internet research had also been made clear in notices in the jury room and it had in any event been open to the applicant to clarify the matter of possible sanctions with the trial judge.
The judgment is of interest for several reasons.
Firstly, the Court, like the domestic court, accepted that disobedience of a judge’s direction to a jury may give rise to criminal sanctions. Whether or not an issue arises under Article 7 will depend on the extent to which the relevant domestic law fulfils the necessary qualitative requirements.
Secondly, the case highlights the importance which the Court attaches to the nature of a judge’s directions to a jury as a means of framing its decision-making and securing the fairness of proceedings; it complements previous case-law on this point (see, for example, Beggs v. the United Kingdom[132], and Abdulla Ali v. the United Kingdom[133], in the context of a common-law system, and, in the context of a civil-law system, Taxquet[134], cited above).
Thirdly, the case is another illustration of the fact that Article 7 of the Convention will not be breached where judicial development of the law in a particular case is consistent with the essence of the offence and could be reasonably foreseen (see Del Río Prada, cited above, §§ 92-93).
Finally, the case illustrates once again the relevance of the Internet when it comes to the protection of Convention rights, in the instant case the need to secure the Article 6 guarantee to a fair trial before an impartial tribunal against the risks which the Internet creates for the introduction of extraneous material into the jury room.
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The issue before the Court in Ruban v. Ukraine[135] was whether a gap in the legislation could give rise to a more lenient sentence.
The applicant was convicted in 2010 of offences committed in 1996, including aggravated murder. At the time of the commission of the offences, the 1960 Criminal Code provided for the death penalty for an offence of aggravated murder. On 29 December 1999 the Constitutional Court found the death penalty to be unconstitutional with immediate effect. Three months later, on 29 March 2000, Parliament amended the Criminal Code so as to abolish the death penalty by replacing it with life imprisonment for the offence of aggravated murder. The applicant contended in the Convention proceedings that the lex mitior principle required that he benefit from the more lenient sentence – fifteen years’ imprisonment – applicable to an offence of aggravated murder during the three-month period between the ruling of the Constitutional Court and the amendment of the Criminal Code.
The Court found that there had been no breach of Article 7. It reiterated that
“Article 7 § 1 guarantees not only the principle of non-retrospectiveness of more stringent criminal laws but also, implicitly, the principle of retrospectiveness of the more lenient criminal law; in other words, where there are differences between the criminal law in force at the time of the commission of an 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 (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 109, 17 September 2009)”.
The judgment is of interest in view of the context in which the applicant claimed entitlement to a more favourable sentence, namely a gap in the legislation. In the Court’s view the creation of the above-mentioned three-month gap had not been intentional and there was nothing in the materials before it which indicated “any intention of the legislator in particular, and of the State in general, to mitigate the law to the extent claimed by the applicant”. It is noteworthy that the Court stressed in this connection that “the intention of the legislator to humanise the criminal law and to give retrospective effect to more lenient law is an important factor” (see also Gouarré Patte v. Andorra[136]). It concluded that at the time when the applicant committed his crime in 1996, it was punishable by the death penalty. Parliament then replaced that penalty with a life sentence, which it considered proportionate, and the courts had in fact applied the more lenient form of punishment.
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129. Bergmann v. Germany, no. 23279/14, 7 January 2016.
130. Dallas v. the United Kingdom, no. 38395/12, 11 February 2016.
131. Del Río Prada v. Spain [GC], no. 42750/09, §§ 77-80 and 91-93, ECHR 2013.
132. Beggs v. the United Kingdom (dec.), no. 15499/10, §§ 128, 131 and 158, 16 October 2012.
133. Abdulla Ali v. the United Kingdom, no. 30971/12, § 96, 30 June 2015.
134. Taxquet v. Belgium [GC], no. 926/05, § 92, ECHR 2010.
135. Ruban v. Ukraine, no. 8927/11, 12 July 2016.
136. Gouarré Patte v. Andorra, no. 33427/10, § 35, 12 January 2016.
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