Information Note on the Court’s case-law 237

February 2020

Jidic v. Romania - 45776/16

Judgment 18.2.2020 [Section IV]

Article 7

Article 7-1

Heavier penalty

New law opening possibility of a more lenient sentence under certain conditions that sentencing court did not find to have been met: no violation

Facts – In 2016 the applicant, a professional driver, was convicted of drink driving and given a suspended pri son sentence of three years and four months, with a driving ban for the supervision period. The last-instance court applied the old criminal law, which was in force in 2012 when the offence had been committed. In its view, it was more lenient in the applic ant’s case than the new law, which came into force in 2014, given the conditions to be met for suspending the sentence. In particular, under the new law, any prison sentence over three years, like in the applicant’s case, had to be served.

The applicant a rgued, however, that the new law was more lenient in his case. While under the old law the only presumed penalty which could be imposed in his case was imprisonment for a term of one to five years, under the new law, by contrast, the domestic courts could choose between imprisonment for the same term and a fine. Moreover, even though both criminal laws provided, subject to certain conditions, that the sentence could be suspended and/or reduced, only the new criminal law provided that the imposition of the s entence could be waived or postponed. Had this been the case, in the applicant’s view, his driving licence would not have been revoked. In addition, a decision by the court to postpone the imposition of his sentence would have enabled him to recover his dr iving licence immediately after the proceedings had ended because a ban on him driving his car during the period of probation could no longer have been imposed.

Law – Article 7: The assessment of which criminal law was more lenient or favourable to a defen dant – the law in force when the defendant had committed the act or the law in force when he or she had been  found guilty – did not depend on an abstract comparison of the two criminal laws in question. What was crucial was whether, following concrete ass essment of the specific acts, the application of one law rather than the other had put the defendant at a disadvantage as concerned the sentencing.

No issue arose in the present case as regards the definition of the offence, which was practically the same under both laws. The question now was whether the specific assessment made in the applicant’s case, which had led to the application of the old criminal law, could reasonably be considered the most favourable for him in terms of sentencing.

Unlike in the c ase of Maktouf and Damjanović , in the applicant’s case the domestic courts had taken into account in their assessment of the more lenient criminal law not only the statutory maximum and minimum prison sentence that could have been imposed on him, but also the possibility provided for by the new law to impose a fine and the manner in which a sentence was to be served under both the new and the old law – more specifically, whether the serving of the sentence could be suspended or the imposition of a penalty p ostponed. The above elements had a bearing on the applicant’s effective right to drive a car, which was of paramount importance for him, given that his earning a living depended on that. What was important for the Court was whether there was a real possibi lity that the applicant could have received a more favourable sentence had the new criminal law been applied in his case.

While under the new law the courts had the option to sentence the applicant to a fine, none of the courts which had examined his case had considered that possibility in view of the seriousness of the offence committed by him. Regarding the options to have one’s sentence suspended , waived or postponed, the new law required that the offence under examination be minor or that the prison sentences set for or imposed on defendants be three years or less. However, the applicant had been sentenced to three years and four months’ imprison ment. Had the new criminal law been applied, the maximum prison sentence imposed on the applicant would have been the same and, moreover, he would have been forced to serve his prison sentence.

Accordingly, the Court found nothing to support the applicant’ s allegation that the last-instance court had applied the more stringent criminal law in his case. On the contrary, since there was no obvious possibility that the application of the new criminal law would have operated to his advantage as concerns sentenc ing, it could not be said that he had not been afforded effective safeguards against the imposition of a heavier penalty.

Conclusion : no violation (unanimously).

(See also Maktouf and Damjanović v. Bosnia and Herzegovina [GC], 2312/08 and 34179/08, 18 July 2013, Information Note 165 , and Felloni v. Italy , 44221/14 , 6 February 2020)

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

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