CONCURRING OPINION OF JUDGE MALINVERNI, JOINED BY JUDGES CABRAL BARRETO AND Å IKUTA

(Translation)

I agree with all the arguments that led the Grand Chamber to find a violation of Article 7 of the Convention. I regret, however, that the judgment does not look more deeply into what to my mind constitutes the particularity of this case, namely the circumstances surrounding the prosecution's appeal on points of law.

Those circumstances are as follows. The first-instance judgment was delivered on 24 November 2000, that is, on the same day as the entry into force of Legislative Decree no. 341 (see paragraph 13 of the judgment). According to the applicant's assertions, which the Government did not contest, the trial before the Rome preliminary hearings judge began at 10.19 a.m. As judgment was delivered immediately after the trial hearing (see paragraph 81), it is very probable that the decision of the preliminary hearings judge was given during the morning of 24 November 2000.

Legislative Decree no. 341 was published in the Official Gazette on the same day, but during the afternoon (see paragraph 33). It follows that at the time when the first-instance judgment was delivered the decree in question could not have been known of by anyone, and the fact is that a legislative instrument cannot take effect before its publication in the Official Gazette (see paragraph 34).

In the appeal on points of law of 12 January 2001 the public prosecutor's office at the Rome Court of Appeal argued that the preliminary hearings judge should have applied Article 7 of Legislative Decree no. 341 and that that omission should be considered a “manifest error of law”. The prosecution service accordingly asked for the sentence imposed on the applicant – thirty years' imprisonment – to be replaced by life imprisonment (see paragraphs 14 and 15). That application, as we know, was allowed by the Rome Assize Court of Appeal.

In my opinion, the principles of legal certainty, the rule of law and the non-retrospective application of a harsher law require the authorities not to apply, to a defendant's detriment, a law which could not have been known of at the time when judgment was delivered.

When he requested adoption of the summary procedure, and right up to the end of the first-instance proceedings, the applicant could not have foreseen the consequences of the application of Legislative Decree no. 341. Accordingly, in the particular circumstances described above, the penalty imposed by the appellate court at the prosecution's request had no legal basis whatsoever and was therefore, on that account too, contrary to Article 7 of the Convention.

PARTLY DISSENTING OPINION OF JUDGE NICOLAOU, JOINED BY JUDGES BRATZA, LORENZEN, JOČIENÉ, VILLIGER AND SAJÓ

The Grand Chamber is unanimously in agreement that in the present case there has been a violation of Article 6 § 1 of the Convention. The reasoning set out in the part of the judgment dealing specifically with Article 6 § 1, with which we are in full agreement, should in our view be read in the light also of the principles already recognised by the Court and discussed by the majority in connection with Article 7 § 1, for it is in the broader context that the fairness issue under Article 6 § 1 acquires its full significance.

At the time when the offences were committed the penalty was life imprisonment with daytime isolation. For offences carrying this penalty the summary procedure, which entailed a reduced sentence, did not apply. It did, however, subsequently become available. On 19 February 2000 the applicant opted for it and, with the consent of the prosecution, the criminal court agreed that it should follow it. The case was twice adjourned and it was not dealt with until 24 November 2000, which was more than eight months later, even though for both trial and sentence less than a morning's sitting was required. The law-decree providing for a higher penalty, published later on the same day, meant to undo what had already been done. Having met with judicial approval, it resulted in an increase in the applicant's sentence. It is in these circumstances that we have concluded that there was a lack of fairness.

However, although the needs of the present case are fully met by Article 6 § 1, the majority are not content with that. They take the view that the matter should primarily be treated under Article 7 § 1. They not only regard the terms of Article 7 § 1 as encompassing the more favourable law – the lex mitior - principle; they also consider that the case warrants the complete reversal of the Court's case-law by a new interpretation of Article 7 § 1 more consonant with the times. In our opinion Article 7 § 1 does not admit of such interpretation.

Although there is, seemingly, a thematic link between the legality principle of Article 7 § 1 and the more favourable law principle, a link which is, perhaps, strengthened by the fact that subsequent human rights instruments treat the two together, there is a vital difference between them. The former principle works at a higher level than the latter. It represents an integral part of the rule of law. Nullum crimen nulla poena sine praevia lege poenali: no one is to be convicted or punished without a pre-existing criminal law in force. Nothing is more fundamental than that. It is peremptory and inevitable. It is an essential condition of freedom. That is why Article 15 does not allow derogation from Article 7 § 1. The lex mitior principle does not form part of nor can it be considered an extension or a corollary of this rule of law requirement. It is a different kind of norm. It

expresses a choice that reflects the development of a social process in the context of criminal law. It circumscribes the scope of criminal law by preserving benefits accruing to defendants as a result of substantive laws subsequent to the commission of the offence and applicable while the case was pending. It remains, in the absence of some specific provision, a matter of policy or choice in the discretionary area enjoyed by the State in criminal matters.

It is clear that when Article 7 § 1 was adopted the lex mitior principle was not included in it; and it has not been suggested that anyone had then thought that it was covered by the nullum crimen nulla poena sine lege principle, often stated in this shortened form. Article 7 § 1 of the Convention, adopted in 1950, was modelled on Article 11 § 2 of the Universal Declaration of Human Rights, with which it is almost identical, adopted by the General Assembly of the United Nations in 1948. The Travaux Preparatoires of Article 7 § 1 reveal (at page 7, item (5)) that the possibility had been canvassed of adding to it the lex mitior principle but that it was abandoned. It is significant that when the corresponding provision of the International Covenant on Civil and Political Rights was being prepared, the draft at the initial phase contained only the nullum crimen nulla poena sine lege principle, the same as Article 7 § 1 of the Convention. The proposal to include the lex mitior principle came later, whereupon the following third sentence was added to give effect to it:

“If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty the offender shall benefit thereby”.

Views differed on whether it was right to do that. The Guide to the Travaux Préparatoires of the International Covenant on Civil and Political Rights, by Marc J. Bossuyt, contains an interesting account of the various considerations involved:

“ Commission on Human Rights, 5 th Session (1949) 6 th Session (1950), 8 th Session (1952)

A/2929, Chapt. VI, § 95: It was argued that the third sentence of paragraph 1 contradicted the assumption underlying the second sentence, namely that a penalty must be that which was authorized by the law in force at the time of its imposition [E/ CN.4/SR.159, §§ 46-48 (USA); E/CN.4/SR.324, p. 4 & p. 7 & p. 15 (GB), p. 5 (USA), p. 9 (IND)]. It was also said that, notwithstanding the praiseworthiness of the goal at which the third sentence aimed, it was not appropriate to make provision for it in the covenant, since it would seem to mean that convicted persons would be enabled as of right to demand that they should benefit from any change made in the law after their conviction [E/CN.4/SR.112, p. 3 (GB), p. 5 (GCA); E/CN.4/SR.324, p. 5 (USA)]. It was asserted that the executive authority of States parties to the covenant should retain an absolute discretion in applying the benefits of subsequently enacted legislation to such persons [E/CN.4/SR. 159, §§ 61-62 (USA), § 65 (GB), § 72 (RCH); E/CN.4/SR.324, p. 16 (GB)]. In opposition to these views it was observed that the tendency in modern criminal law was to allow a person to enjoy the benefit of such lighter penalties as might be imposed after the commission of the offence with

which he was charged [E/CN.4/SR.112, p. 4 (USA), p. 6 (RCH) p. 7 (SU); E/CN.4SR.159, § 83 (ET), § 86 (U), § 88 (F); E/CN.4/SR.199, § 151 (GB), § 153 (F), § 156 (ET); E/CN.4/SR.324, pp. 4-5 & p. 8 (SU), p. 5(B), p. 9 (YU), p. 11 (RCH) & (F), p. 12 (PL), p. 14 (IL)]; the laws imposing new and lighter penalties were often the concrete expression of some change in the attitude of the community towards the offence in question [E/CN.4/SR.112, p. 8 (F); E/CN.4/SR.324, p. 7 (RCH)].”

The argument that Article 7 § 1 of the Convention should be interpreted as including the most favourable law principle was examined and dismissed by the Commission in X. v. the Federal Republic of Germany , no. 7900/77, decision of 6 March 1978, Decisions and Reports no. 13, pp.70-72. The applicant was found guilty of the breach of a fiscal provision and a fine was imposed on him. He appealed. Before the appeal was heard the provision on which his conviction had been based was repealed. He submitted that he should be given the benefit of that change. He alleged a violation of Article 7 and he referred, in support, to Article 15 of the United Nations Covenant on Civil and Political Rights. It may be useful to note in this connection that the American Convention on Human Rights, already adopted in 1969 though it came into force on 18 July 1978, a few months after the decision in that case, also contained a sentence embodying the more favourable law principle. In a short decision the Commission pointed out what was obvious and expressed it in this way:

“However, Article 7 of the Convention does not contain a provision similar to Article 15, paragraph 1 in fine of the United Nations Covenant which is, moreover, based on a different hypothesis because it guarantees the convicted person the right to benefit from the application of a lighter penalty imposed by a law enacted subsequent to the commission of the offence. In the present case, some of the charges against the applicant are to a certain extent no longer criminal offences. Nevertheless, at the time that the offence was committed the action of the applicant constituted a crime according to national law within the meaning of Article 7, paragraph 1, so that this complaint is (also) manifestly ill-founded...”

The decision in X. v. the Federal Republic of Germany (above) was, relatively recently, followed by the Court in Ian Le Petit v. the United Kingdom (dec.), no. 35574/97, 5 December 2000, and in Zaprianov v. Bulgaria , (dec.), no. 41171/98, 6 March 2003, where it was categorically stated that:

“Article 7 does not guarantee the right to have a subsequent and favourable change in the law applicable to an earlier offence”.

The conflict of opinion in the present case should not be attributed to a difference in our interpretative approach to Article 7 § 1 of the Convention. We all profess adherence to the relevant international rules embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 and the view that we, as minority, take of Article 7 § 1 does not call in question the Court's case-law, to which the majority briefly refer, either on reversing previous decisions, where necessary, or of adapting to changing conditions and responding to some emerging consensus on new standards since, as is often emphasised, the Convention is a living instrument requiring a dynamic and evolutive approach that renders rights practical and effective, not theoretical and illusory. But no judicial interpretation, however creative, can be entirely free of constraints. Most importantly it is necessary to keep within the limits set by Convention provisions. As the Court pointed out in Johnston and Others v. Ireland (18 December 1986, § 53, Series A no.112):

“It is true that the Convention and its Protocols must be interpreted in the light of present- day conditions (see, amongst several authorities the above-mentioned Marckx judgment, Series A no. 31, p. 26, para. 58). However, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right which was not included therein at the outset. This is particularly so here, where the omission was deliberate.”

This is a matter on which the Court should be particularly sensitive. And yet, although the present case does not require it, the majority has gone on to examine the case under Article 7 § 1 and, in order to apply it, has had it re-written in order to accord with what they consider it ought to have been. This, with respect, oversteps the limits.