Information Note on the Court’s case-law 69

November 2004

Achour v. France - 67335/01

Judgment 10.11.2004 [Section I]

Article 7

Article 7-1

Retroactivity

Determination of penalty: retroactive application of a more severe law concerning recidivism: violation

[This case was referred to the Grand Chamber on 30 March 2005]

Facts : The applicant was sentenced to eight years’ imprisonment in 1997 for a drug offenc e committed in 1995. The Court of Appeal increased the sentence to twelve years, finding that, since the applicant had already been convicted in 1984, he was to be classified as a recidivist under Article 132-9 of the new Criminal Code, which came into for ce on 1 March 1994. The applicant appealed on points of law, arguing that his classification as a recidivist contravened the rule governing the application of successive criminal laws, the Court of Appeal having retrospectively applied the harsher provisio ns of the new legislation. After his 1984 conviction, the five-year period within which recidivism was possible under the law in force at the time had lasted until 1991 and had therefore expired by the time he had committed the second offence. The Court of Cassation held that the second offence, committed after the entry into force of the 1994 legislation, entailed the application of those new provisions, which extended to ten years the period during which an offender could be deemed to be a recidivist. As the second offence had been committed in 1995, one year before the expiry of this new, longer period, the applicant had been subject to the rules on recidivism. The Court of Appeal had therefore rightly taken that factor into account in relation to the app licant's initial 1984 offence.

Law : Article 7 – Recidivism was a ground for increasing a penalty (where conduct constituting an offence was repeated within a given period). The issue was therefore part of the more general one of sentencing. In the present case the first offence had been committed by the applicant in 1984 at a time when the law had provided for a five-year period in which recidivism could be an aggravating factor; the second, committed in 1995, had fallen within the scope of the new Criminal Code, which laid down a ten-year period. In accordance with the legal rules in force at the time of the first offence, the five-year period (during which the applicant would be deemed to be a recidivist in the event of a further offence) had ended on 12 J uly 1991. The new ten-year period, however, had not become law until three years after that date, on 1 March 1994. Accordingly, the application of the new legislation in the applicant’s case had necessarily restored a legal situation that had ceased to hav e effect in 1991. The applicant’s previous conviction, which could no longer have formed a basis for recidivism from 12 July 1991 onwards, had therefore had legal consequences, not in relation to the statutory rules which had governed it at the time but un der the new rules that had come into force years later. The applicant’s complaint was therefore that the new legislation conflicted with the effects of the previous legislation, under which the period in which he could have been classified as a recidivist had already expired (compare Coëme and Others v. Belgium , ECHR 2000-VII). This prompted a disconcerting observation: if the applicant had committed a second offence the day after 12 July 1991 (the expiry of the period in which recidivism had been possible under the previous legislation) or on any date between 13 July 1991 and 28 February 1994 (the day before the new Criminal Code had come into force) – that is, during a period of almost three years – French law would have prohibited the courts from deeming him to be a recidivist. In short, the provisions of the new legislation on recidivism had been applied retrospectively. They were harsher than those of the former legislation and had effectively caused the trial and appeal courts to impose a heavier penalt y; the applicant had been sentenced to twelve years’ imprisonment because the circumstance of recidivism was taken into account, whereas the statutory maximum sentence in the absence of recidivism had been ten years. The Court considered that where a perso n was, as in the instant case, convicted as a recidivist pursuant to new legislation, the principle of legal certainty dictated that the relevant period for the purposes of recidivism should not already have expired under the previous legislation.

Conclusi on : violation (four votes to three).

Article 41 – The Court held that the finding of a violation was sufficient to make good the non-pecuniary damage sustained by the applicant.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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