DISSENTING OPINION OF JUDGE COSTA JOINED BY JUDGES ROZAKIS AND BONELLO

(Translation)

I should like to explain why I was not persuaded by the reasoning adopted in this delicate and, in my view, unprecedented case, and have therefore reached a different conclusion from the majority of my colleagues.

1 . I shall briefly recapitulate the facts of the case, which are set out in paragraphs 8 to 14 of the judgment and are fairly straightforward.

2 . On 16 October 1984 Mr Achour was sentenced to three years ' imprisonment for offences under the regulations on buying, using, trading in and transporting drugs. At the time those offences were punishable under the relevant legislation by a sentence of between two and ten years ' imprisonment. Mr Achour ' s conviction was final and he was not subsequently rehabilitated or granted an amnesty in respect of it. It remained in his criminal record. He finished serving his sentence on 12 July 1986.

3 . Mr Achour was later tried for similar offences, committed in the course of 1995 and up to 7 December of that year and punishable at the time when they were committed by (a maximum of) ten years ' imprisonment. On 14 April 1997 the Criminal Court sentenced him to eight years ' imprisonment, and on 25 November 1997 the Court of Appeal increased that sentence to twelve years. It applied Article 132-9 of the new Criminal Code, which provides:

“ Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by ten years ' imprisonment commits, within ten years of the expiry of the previous sentence or of the time allowed for its enforcement, a further offence carrying a similar sentence, the maximum sentence and fine that may be imposed shall be doubled .”

4 . In other words, the Court of Appeal considered that Mr Achour satisfied the requirements of these provisions and was therefore liable to a maximum of twenty years ' imprisonment; it sentenced him to twelve.

5 . The applicant appealed on points of law against that judgment, and the Court of Cassation dismissed his appeal on the following ground, in accordance with its settled case-law:

“... where a law introduces new rules on recidivism, for them to apply immediately it is sufficient for the offence constituting the second component of recidivism – which the offender may choose to commit or not to commit – to have been committed after the law ' s entry into force.”

6 . On the face of it, such reasoning is unassailable: the new Criminal Code came into force on 1 March 1994, and the offences which made Mr Achour a recidivist were committed after that date.

7 . However, Mr Achour submitted and pleaded that Article 7 of the Convention had been infringed in that, when he had committed the initial offence, the prescribed period had been only five years instead of ten, that this period had expired before the entry into force of Article 132 ‑ 9, and that harsher legislation had therefore been applied retrospectively in his case. The majority endorsed that line of reasoning in substance and also drew on the concept of legal certainty.

8 . Mr Achour ' s submissions and the judgment rely more particularly on the second sentence of Article 7, paragraph 1, of the Convention, which provides:

“Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

9 . On closer inspection, it might appear that this is the decisive argument; ultimately, however, I do not find it persuasive as it seems out of step with the reality of recidivism.

10 . In practically all legal systems, recidivism is an aggravating factor in relation to the second offence, warranting a harsher sentence, where appropriate, for the recidivist (who, rightly or wrongly, is regarded as hardened or more dangerous). This increased severity is open to question on a general level; some criminologists believe, on the contrary, that mitigating circumstances should be taken into account in the case of recidivists, who have been corrupted by the crowded conditions and bad influences to which they have been exposed in prison. But this view is rejected by most countries, which consider that recidivists should be given increased sentences. There is, however, less common ground between States regarding multiple offences : some impose cumulative penalties, whereas in others, such as France , only the heaviest penalty is imposed.

11 . Recidivism is provided for by law; it is an aggravating factor in personam and not in rem , since it relates to the conduct of the offender.

12 . The legal rules governing recidivism in France – and in other States – require two components, the first being a final criminal conviction and the second the commission of a further offence, which may be the same as or equivalent to the first offence (specific recidivism) or a separate offence (general recidivism). It may be limited in time (as in Mr Achour ' s case) or unlimited (as in the case of serious crimes: an offender who commits a second serious crime, irrespective of the time that has elapsed, is classified as a recidivist, but that was not the case here). According to that legal approach, it is the second offence which makes a person a recidivist, just as a persistent recidivist is a person who breaks the criminal law three, four or any number of times. I must admit that, to my mind, there is nothing intrinsically shocking in this logic, which I consider to be central to the present case.

13 . The difficulty with this approach, however, lies in ascertaining whether a new law extending the time that may elapse between the two components of recidivism may apply to a second offence committed after its entry into force or whether the law should have been in force before the first conviction or even the first offence. The courts (and also, it would seem, most legal writers) have consistently taken the view since the late 19th century that the new law, in so far as it predates the commission of the second offence, is not retrospective (and hence does not infringe Article 7 of the Convention). The offender, who is or should be aware of the new law, knows the penalties he faces if, after its entry into force, he commits a second offence entailing his classification as a recidivist and, consequently, aggravating circumstances in personam . The penalty imposed on him, to be increased where appropriate on account of the factor of recidivism, will not be heavier than the one applicable at the time when the second offence was committed, since by definition that time will be after the date on which the new law came into force, in this case 1 March 1994.

14 . There is, admittedly, some force in the argument set out in paragraph 43 of the judgment that if Mr Achour had “ reoffended ” between 12 July 1991 – five years after completing his initial sentence – and the date before the new Criminal Code came into force, he could not have received as severe a sentence as he did in 1997 under this new legislation.

15 . But on reflection, I do not consider that argument decisive. Any new law entailing harsher criminal sanctions will affect the penalties which may be imposed for offences committed after the law comes into force, irrespective of whether the offenders are recidivists. Obviously, the Convention does not prevent States from taking tougher measures against certain criminal offences in the context of their policy on crime, having regard to criminal developments and the need for an appropriate reaction in society. It is always regrettable that the criminal-law system should become more punitive, but that does not in itself necessarily entail a breach of the Convention (see, in this connection, the Commission ' s decision of 9 April 1996 in the case of H.M.A. v. Spain , application no. 25399/94, Decisions and Reports 85-B, p. 117, in particular the following passage:

“The Commission recalls ... that the Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects.”)

If a State can introduce new criminal offences, it is a fortiori entitled to increase the penalties to which offenders are liable.

16 . A further objection may be raised. Should not the legal rules on recidivism be treated as akin to the – more favourable – rules on the activation of suspended sentences , in which the principle of not applying the law retrospectively is construed more broadly, at least in France ?

17 . However, in spite of the apparent similarities, these two concepts are quite different. A court may, at its discretion, decide that a sentence it imposes should be suspended (with or without probation). Such a measure accordingly exempts the convicted person from having to serve the sentence, such exemption being subject to the condition that, within a period specified by law, he does not commit a further offence resulting in a second conviction. The president of the court must, when imposing a suspended sentence, warn the convicted person of the consequences of his reoffending (Articles 132 ‑ 29 and 132 ­ 40 of the new Criminal Code). A suspended sentence is therefore probationary , unlike a conviction constituting the first component of recidivism, and this is a significant difference.

18 . The effects of a suspended sentence are also different. If no further conviction occurs during the statutory period, the conviction is automatically treated as non-existent; the exemption from having to serve the sentence becomes permanent; the conviction can no longer constitute the first component of recidivism; and, lastly, it is deleted from “Bulletin no. 2” of the criminal record. Nothing of the kind occurs in relation to a recidivist ' s initial conviction (except in the event of rehabilitation or an amnesty, neither of which occurred in the present case). The expiry of the statutory period does not expunge the initial conviction either retrospectively or for the future and has no effect on the person ' s criminal record.

19 . It is therefore unsurprising that if a law extended the period in which no further offences were to be committed following the imposition of a suspended sentence, it could not be applied to a person who had already received such a sentence as it would come into force after the judgment in question and would interfere with res judicata (see Article 112-2, point (3), of the new Criminal Code, and the relevant case-law, such as the Criminal Division ' s judgment of 20 November 1996, Bull. crim. no. 418). However, legislation of that kind is applicable to a recidivist, whose factual and legal position is in no way the same.

20 . It may be thought desirable for the existing rules on recidivism in France to be relaxed, for example by introducing the right to have the first conviction disregarded or expunged. That, however, is a matter relating to criminal policy and not to the retrospective application or the legality of penalties. But is the law as it stands incompatible with Article 7 in general terms or in the present case? I do not think so. Not only was Mr Achour not sentenced to a heavier penalty than the one applicable at the time the criminal offence was committed, but the relevant legislation (Article 132-9) satisfied the requirements of accessibility and foreseeability set forth in the Court ' s case-law since it was based on a settled and, in my view, reasonable interpretation that had been applied consistently for a century (see, for example, Kokkinakis v. Greece , judgment of 25 May 1993, Series A no. 260-A, p. 19, § 40, or Streletz, Kessler and Krentz v. Germany [GC] , nos. 34044/96, 35532/97 and 44801/98, § 82, ECHR 2001-II).

21 . Lastly, I have been unable to find any grounds in the case-law of the Convention institutions (or of the Constitutional Council, even in the frequently cited decision no. 86-215 DC of 3 September 1986) for broadening to such an extent the notion of retrospective application (as that is what we are dealing with here). The case-law cited in the judgment is not decisive. In other recent judgments (see Ecer and Zeyrek v. Turkey , nos. 29295/95 and 29363/95, ECHR 2001-II, or Gabarri Moreno v. Spain , no. 68066/01, 22 July 2003) a violation of Article 7 has indeed been found where a heavier penalty has been imposed retrospectively. But none of these cases seem to me to be directly, or even indirectly, applicable to the circumstance of recidivism and the applicant ' s situation, the facts being completely different.

22 . In short, while acknowledging the great importance of Article 7 of the Convention (from which, moreover, no derogation is permissible under Article 15) and of Article 8 of the Declaration of the Rights of Man and of the Citizen, I am unable to find that there has been a violation of the Convention in the present case, even from the point of view of legal certainty (on this point, I would refer to paragraph 15 above).