Communicated on 11 January 2016

FOURTH SECTION

Application no. 67503/13 Boštjan KOPRIVNIKAR against Slovenia lodged on 21 October 2013

STATEMENT OF FACTS

The applicant, Mr Boštjan Koprivnikar , is a Slovenian national who was born in 1979. He is currently detained in Mirna Prison. He is represented before the Court by Mr M. Petek , a lawyer practising in Ljubljana.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The Criminal Code adopted by the Slovenian legislature on 6 October 1994 (hereinafter “the 1994 Criminal Code”) remained in force until 1 November 2008. Initially, the 1994 Criminal Code prescribed a general maximum term of imprisonment of fifteen years, which could be increased to twenty years ’ imprisonment for exceptionally serious crimes. In 1999 an amendment to the Criminal Code introduced a maximum term of thirty years ’ imprisonment for the most serious criminal offences committed with intent, such as certain categories of murder. A person could be tried simultaneously for two or more criminal offences. The rules on combining multiple sentences into an overall sentence, which were applicable from 1999 to 1 November 2008, provided that if a term of imprisonment of thirty years was imposed for any of the individual offences, the overall sentence could not be longer than that sentence. Otherwise, if a term of imprisonment was imposed for all the concurrent offences, the overall sentence was to exceed each of the individual sentences imposed for the particular offences concerned, but could not exceed the total sum of all the sentences imposed for the concurrent offences; nor could it exceed twenty years ’ imprisonment.

On 1 November 2008 a new Criminal Code (hereinafter “the 2008 Criminal Code”) entered into force, increasing the general maximum term of imprisonment to thirty years and introducing life imprisonment for some of the most serious crimes. Nevertheless, the legislature failed to introduce an amendment bringing the rule on combining several prison sentences in an overall sentence into line with the new provision. Thus, while an overall sentence of life imprisonment was to be imposed when combining two or more sentences of thirty years ’ imprisonment, the new rule on combining most other prison sentences (except for the mildest ones) was worded in an identical manner to the one in the 1994 Criminal Code. It provided that if a term of imprisonment was imposed for all concurrent offences, the overall sentence could not exceed twenty years ’ imprisonment.

The legislative error in the 2008 Criminal Code was corrected by the 2011 Amendment to the Criminal Code. Under the amended rules, if one of the prison sentences to be joined in an overall sentence was imposed for a term of thirty years, the overall sentence would contain only that sentence. Furthermore, if a term of imprisonment was imposed for all concurrent offences, the overall prison term could not exceed thirty years, rather than the previous maximum term of twenty years.

On 17 September 2004 the applicant was convicted of robbery by the Ljubljana District Court and sentenced to four years in prison. He began serving his sentence on 7 December 2007 and completed it on 7 December 2011.

In the meantime, on 9 April 2009 the Ljubljana District Court found the applicant guilty of murder committed together with another person. He was sentenced to thirty years in prison, the maximum penalty provided for in the 1994 Criminal Code applicable at the time at which the offence was committed. The conviction was upheld on appeal by the Ljubljana Higher Court on 9 December 2009 and became final on the same day.

On 16 July 2009 the applicant was convicted by the Ljubljana District Court of having presented a bad cheque and of fraudulent use of a bank card. He was sentenced to five months ’ imprisonment.

On 28 November 2011 the applicant applied to the Ljubljana District Court to have the three prison terms joined in an overall sentence.

On 13 January 2012 the Ljubljana District Court, applying the 2008 Criminal Code, joined the three above-mentioned prison sentences, including the one for robbery which the applicant had already completed, in an overall sentence. While acknowledging that Article 53 § 2 (2) of the 2008 Criminal Code, as applicable before the introduction of the 2011 Amendment, would normally have applied to the case, the District Court sentenced the applicant to an overall term of thirty years ’ imprisonment. In its reasoning, it relied on the principle of the rule of law requiring, inter alia , that criminal-law provisions be drafted in a clear and precise manner in order to avoid sanctions being imposed arbitrarily. Although the maximum sentence applicable under the 2008 Criminal Code was thirty years ’ imprisonment and the rules on combining multiple sentences in an overall sentence provided that the overall sentence must exceed each of the individual sentences imposed, Article 53 § 2 (2) of the 2008 Criminal Code as applicable before the introduction of the 2011 Amendment had prescribed a milder maximum sentence of twenty years. The court held that the legislation was therefore unclear, ambiguous and deficient. It took the view that the legislature had not intended to enact legislation enabling those offenders who were sentenced to thirty years ’ imprisonment for one of the offences for which they were sentenced concurrently to benefit from an overall sentence that was ten years lower than the highest individual sentence forming part of the overall sentence. In support of its view, the District Court pointed out that the 1994 Criminal Code had provided that in cases where an offender was to serve thirty years ’ imprisonment for one of several concurrent offences, the overall sentence would consist only of that term. Therefore, the District Court considered that the legislature had made an obvious error in Article 53 § 2 (2) of the 2008 Criminal Code, which had, however, been rectified in the meantime.

The applicant appealed against the judgment, arguing that the District Court ’ s decision lacked an appropriate legal basis. Moreover, it was unconvincing and unfounded. He emphasised that the principle of the rule of law implied that the courts and other authorities were required to respect the applicable legislation and thereby ensure legal certainty, the validity and effectiveness of the law, and the principle nullum crimen et nulla poena sine lege . He also claimed that the primary method of interpreting legal texts should be grammatical interpretation. It was only where that method proved unsatisfactory in determining how a certain rule should be applied that other methods of interpretation should be applied. Lastly, the applicant agreed with the District Court that the provision in question could be regarded as unclear, ambiguous and deficient, but pointed out that any possible ambiguities or deficiencies should not be interpreted to his detriment.

On 29 May 2012 the Ljubljana Higher Court dismissed an appeal lodged by the applicant and upheld the first-instance judgment, reiterating the lower court ’ s reasoning as to how the principle of the rule of law should be interpreted in the applicant ’ s case. In the Higher Court ’ s opinion, the District Court had correctly assessed that the legislature had not intended to permit individuals convicted of several offences to benefit from a lower maximum term of imprisonment than they would have to serve if they were convicted of only one of those offences. According to the Higher Court, such an interpretation would lead to a situation “defying the law as well as common sense”.

The applicant applied to the Supreme Court for the protection of legality (an extraordinary legal remedy), reiterating his arguments. He also argued that the rule of law was a two-way principle which should not be applied at the courts ’ discretion.

On 6 December 2012 the Supreme Court dismissed the application for the protection of legality, disagreeing with the applicant that grammatical interpretation should take precedence over all other methods of legal interpretation. The Supreme Court referred to the Higher Court ’ s judgment, pointing out that the latter court ’ s reasoning evidently showed that the historical interpretation of the rule on combining multiple sentences had also to be taken into account in assessing the aim of the legislature in enacting the provision at issue. That method of interpretation entailed the examination of not only the provision in its original form, as relied on by the applicant, but also the subsequent amendment, which showed the true aim of the provision. In addition, the Supreme Court relied on the systematic interpretation of the rule in question, emphasising that it could not be interpreted entirely separately from the provisions prescribing that individual prison sentences for various criminal offences must be combined to form an overall sentence. Since, under the unamended 2008 Criminal Code a prison sentence could be imposed for a term not shorter than fifteen days and not longer than thirty years, it was not logical that an overall sentence combining several prison terms, one of which was for thirty years, could be ten years lower than the highest individual prison sentence imposed. According to the Supreme Court, the rules on concurrent offences were aimed not at reducing the general maximum prison sentence, but at ensuring that the overall length of several sentences did not exceed the general maximum prison sentence, which in the applicant ’ s case was thirty years.

The applicant lodged a constitutional complaint, reiterating that the imposition of an overall sentence of thirty years ’ imprisonment contravened Article 53 § 2 (2) of the Criminal Code, which clearly provided that such a sentence could not exceed twenty years. In the applicant ’ s opinion, the purpose of the provision at issue could be drawn from interpreting it grammatically and no additional means of interpretation were therefore required in order to understand the legislature ’ s intention.

On 24 April 2013 the Constitutional Court dismissed the applicant ’ s complaint, finding that it did not concern an important constitutional question or entail a violation of human rights with serious consequences for the applicant.

B. Relevant domestic law

The relevant provisions of the 2008 Criminal Code applicable at the material time read as follows:

Article 46. Sentence of Imprisonment

“(1) A prison sentence may be imposed for a term not shorter than fifteen days and not longer than thirty years.

(2) A sentence of life imprisonment may be imposed for criminal offences of genocide, crimes against humanity, war crimes and aggression, and under conditions ... of this Criminal Code for two or more criminal offences ...

(3) The lowest sentence for criminal offences, for which the prescribed prison sentence is up to thirty years, is fifteen years ’ imprisonment.

...”

Article 53. Concurrence of Offences

“(1) If an offender is being tried for two or more criminal offences simultaneously, the court shall first determine the sentence for each offence concerned and thereafter impose an overall sentence for all concurrent criminal offences.

(2) A combined sentence shall be imposed under the following conditions:

1) if a prison sentence for a term of thirty years has been determined for two or more concurrent criminal offences under paragraph 2 of Article 46 of this Criminal Code, an overall sentence of life imprisonment shall be imposed;

2) if a prison sentence has been determined for all concurrent offences, the overall sentence shall exceed each sentence determined for a particular offence but may neither exceed the total sum of all the sentences imposed for the concurrent offences, nor may it exceed twenty years ’ imprisonment;

...”

Article 55. Sentencing of a Convicted Person

“(1) In the event of an offender being tried for a criminal offence committed either prior to the commencement of or during the serving of an earlier sentence, an overall sentence shall be imposed on him for all the criminal offences pursuant to Article 53; the court shall take into account the fact that his former sentences have already been determined. The sentence or part thereof that has already been served by the convicted person shall be deemed part of the overall sentence imposed.

(2) Earlier sentences shall not be taken into account in the sentencing of an offender who commits a criminal offence while serving a prison sentence, in so far as the application of Article 53 would lead to an unreasonably short term left to be served.

(3) A disciplinary sanction shall be imposed on a convicted person who while serving a sentence commits a criminal offence for which a fine or imprisonment for a term not exceeding one year is prescribed by statute.”

COMPLAINT

The applicant complains under Article 7 of the Convention that an overall prison sentence of thirty years was imposed on him despite the fact that the unamended 2008 Criminal Code, which was applicable to his case, had provided that such an overall sentence, combining several individual prison sentences, could not exceed twenty years ’ imprisonment.

QUESTION TO THE PARTIES

Having regard to the fact that, while acknowledging that a maximum overall sentence of twenty years was applicable in the applicant ’ s case, the domestic courts considered that sentence to be incompatible with the general criminal sentencing policy as provided for in the 2008 Criminal Code, w as the thirty-year prison sentence imposed on the applicant heavier than the penalty applicable at the time at which he committed the offences, as proscribed by Article 7 of the Convention?