Information Note on the Court’s case-law 203

January 2017

Koprivnikar v. Slovenia - 67503/13

Judgment 24.1.2017 [Section IV]

Article 7

Article 7-1

Heavier penalty

Nulla poena sine lege

Fixing of a combined sentence in respect of multiple offences: violation

Facts – The applicant was convicted in separate judgments of three separate offences for which he was sentenced to prison terms of five months, four year s and thirty years respectively. Subsequently, the applicant applied to the District Court under Article 53 § 2 (2) of the 2008 Criminal Code to have the three prison terms joined in an overall sentence. That provision laid down that the overall sentence h ad to exceed each individual sentence but was not to exceed the total of all the offences or twenty years’ imprisonment. Taking the view that the legislature had not intended to enact legislation enabling offenders who had been sentenced to thirty years’ i mprisonment for an individual offence to benefit from an overall sentence that would have been ten years lower when the offences were joined, the District Court imposed a combined sentence of thirty years’ imprisonment on the applicant in respect of all th ree offences. In the Convention proceedings, the applicant complained that the overall sentence imposed on him had breached Article 7 of the Convention.

Law – Article 7: The relevant legal provision relied on by the domestic courts provided a deficient leg al basis for the determination of the sentence. In particular, the application of the wording of the 2008 Criminal Code to the applicant’s situation led to contradictory results. While, according to the terms of that provision, the applicant should not hav e had an overall sentence of more than twenty years imposed on him, the overall sentence should have exceeded each individual sentence, which in the applicant’s case included a term of imprisonment of thirty years. The only way for the domestic courts to h ave ensured the observance of the principle that only the law can define a crime and prescribe a penalty, and to mitigate the effects of the law’s unpredictability in the present case would have been to interpret the deficient provision restrictively, that is to say to the advantage of the applicant.

The relevant provision could have been applied to the applicant by either disregarding the lower limit, which required the overall sentence to exceed each individual sentence, or by disregarding the upper limit , which laid down that the overall prison sentence should not exceed the maximum ceiling of twenty years. The first option was more favourable to the applicant and would have complied with the maximum limit on the overall sentence explicitly provided for i n the legislation. The domestic courts had interpreted the deficient provision by resorting to different canons of interpretation and concluded that it should be understood as imposing a sentence of thirty years, despite the fact that such a penalty was he avier than the maximum explicitly provided for and that, having regard to the actual wording of that provision, it was clearly to the detriment of the applicant.

Accordingly and having regard to the above considerations, the domestic courts had failed to ensure observance of the principle of legality enshrined in Article 7 of the Convention. The overall penalty imposed on the applicant was in violation of both the principle that only the law can prescribe a penalty and the principle of retrospectiveness of the more lenient criminal law.

Conclusion : violation (six votes to one).

Article 41: Finding of a violation constituted in itself sufficient just satisfaction.

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

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