CONCURRING OPINION OF JUDGE SPANO

1. In his concurring opinion in Dickson v. the United Kingdom ([GC], no. 44362/04, 4 December 2007, ECHR 2007 ‑ V), Judge Bratza opined that “[an] unsatisfactory feature of Protocol No. 11 to the Convention, which ushered in the permanent Court in Strasbourg, is that a national judge who has already been party to a judgment of a Chamber in a case brought against his or her State is not only entitled but, in practice, required to sit and vote again if the case is referred to the Grand Chamber”. Previously, in his partly dissenting opinion in Kyprianou v. Cyprus ([GC], no. 73797/01, ECHR 2005 ‑ XIII), Judge Costa described the position of the national judge in such circumstances as “disconcerting”, the judge having to decide whether to adhere to his or her initial opinion on the case or “with the benefit of hindsight [to] depart from or even overturn [that] opinion”.

2. Where a case has already been fully argued and discussed at Chamber level and no new information or arguments have been advanced before the Grand Chamber, national judges have, unsurprisingly, normally adhered to their previous opinion, as Judge Bratza pointed out in Dickson (cited above), although not necessarily to the precise reasoning which led to that opinion in the Chamber. When a case is referred to the Grand Chamber, and arguments on a legal question are presented for the first time, it is more readily incumbent on the national judge to examine the issue afresh in the light of the Parties’ arguments before the Grand Chamber.

3. In the present case, the question whether the criminal limb of Article 6 § 1 of the Convention is applicable to the applicants’ complaints was not disputed before the Chamber, the Government not adducing any arguments against the position of the applicants on this matter (see paragraph 73 of the present Grand Chamber judgment). Although considering the issue borderline, I therefore agreed, on balance, with the Chamber’s finding that the criminal limb of this provision was applicable, having regard to the reasoning of the Icelandic Supreme Court and the Parties’ position on the matter. However, before the Grand Chamber, the Government now explicitly object to the position that the criminal limb of Article 6 § 1 is applicable and the issue has been fully argued by both Parties. It must be made clear that the Government is not estopped from objecting to the admissibility of the applicants’ complaints on this ground for the first time in the Grand Chamber, as it goes to the Court’s jurisdiction ratione materiae (differently from a claim for non-exhaustion of domestic remedies under Rule 55 of the Rules of Court; see paragraph 98 of the judgment).

4. Having now had the benefit of full argumentation and pleadings by the Parties before the Grand Chamber, I have come to the conclusion that there are stronger legal arguments in favour of the contrary conclusion. I therefore concur in the Court’s finding to dismiss the applicants’ complaints ratione materiae , both under Articles 6 § 1 and 7, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

CONCURRING OPINION OF JUDGE TURKOVIĆ

1. I agree with the dissenting judges that, had the Grand Chamber found that the Engel criteria had been met, the two questions related to Article 7 of the Convention would be of real interest in the present case. First, whether a provision which defines an offence and a type of punishment but omits to set a maximum penalty is compliant with the requirement for lex certa under Article 7 of the Convention. Second, whether the punishment actually imposed in the present case, based on such a provision, was foreseeable. The Court has not so far had an opportunity to deal with these questions. Since the Chamber addressed this important matter only briefly, in just one paragraph, without any deeper analyses (see Gestur Jónsson and Ragnar Halldór Hall v. Iceland , nos. 68271/14 and 68273/14, § 94, 30 October 2018), and Grand Chamber did not have an opportunity to deal with it, I should like merely to flag the principles that, in my opinion, should guide the Court in deciding these complicated issues.

2. Both of these principles, nullum crimen sine lege , which addresses the punishability of the conduct in question, and nulla poena sine lege , which deals with the legality of the actual punishment or penalty itself, are at the core of the principle of legality and both rely on the same requirements: nullum crimen, nulla poena sine lege certa , stricta, and praevia (see Del Río Prada v. Spain [GC], no. 42750/09, § 91, ECHR 2013). However, there are some distinctions between the two which might be of importance when these requirements are interpreted, and for this reason direct, uncritical transposition of the general principles developed in the Court’s case-law concerning nullum crimen to nulla poena might not always be warranted. While it is perfectly sound to accept that provisions defining criminal offences, however clearly defined, would inevitably require judicial interpretation and elucidation of doubtful points and gradual clarification consistent with the essence of the offence, and thus that in defining crimes only the maximum possible clarity could be required (see Vasiliauskas v. Lithuania [GC], no. 35343/05, § 155, ECHR 2015, with further references), the same is not true with regard to determination of the maximum sentence. Here, greater clarity and precision are both possible and achievable; in fact, the maximum penalty can be laid down in law with absolute clarity. [4] The query is whether failure to do so is compliant with Article 7 of the Convention.

3. Indeed, in most legal systems lex certa is interpreted as requiring both the law authorising the type of punishment a judge may impose on a convicted person (e.g. imprisonment, fines, community service) and the maximum severity of the sentence applicable to different crimes (degree of punishment) to be specific, definite, and clear, that is, certain and unambiguous. It also requires that the law of penalties distinguish between different forms of participation in criminal conduct, such as commission, attempted commission, or aiding and abetting, and the different degrees of criminal responsibility, such as intent, recklessness, or negligence with which an offence is committed, as well as whether the crime is completed or inchoate. The majority of States, regardless of whether they belong to the common or civil legal system, follow this approach in their domestic legal systems. This approach as a rule includes the practice of articulating a specific maximum penalty for each criminal offence. [5]

4. Under the principle of legality, there are four central functions to a maximum penalty. First, to restrict judicial discretion in sentencing a person who has committed an offence and to set clear limits on the action that the State may lawfully take against an offender in punishing or rehabilitating a convicted person. Second, to provide fair notice to potential offenders by indicating the highest punishment they will face if they commit a particular offence. Both of these aspects flow from the rule-of-law principle, whose central tenant is transparency and predictability or, in the language of the Court, foreseeability (see Žaja v. Croatia , no. 37462/09, § 93, 4 October 2016). Third, to indicate the relative seriousness of the offence compared with other criminal offences, that is, to rank offences according to their degree of gravity. Fourth, to provide adequate “space” when sentencing the worst examples of the offence. The last two aspects flow from the principle of proportionality or just punishment (just deserts) which requires that the punishment fit the crime, restraint on excessive punishment, and punishment of equal severity for equally blameworthy conduct. The key focus in setting the level of maximum punishment should be the relative gravity of each offence compared with other offences, measured by the harm caused or risked by the offending conduct, and the culpability of the offender in committing the crime. The development of a consistent framework of maximum penalties for all offences in a particular legal system, which ultimately guarantees the equality of all before the law, is an inherently difficult task that can hardly be accomplished through incremental development by courts deciding individual cases.

5. In order to equip judges to determine proportionality in individual cases adequately, the boundaries within which they may act, in particular the maximum penalty, should be clearly and unambiguously set down in advance. The maximum penalty provides a legislative guide to judges as to the relative seriousness of an offence, without transgressing the separation of powers by entering the domain of the administration of justice, which in criminal matters is the exclusive preserve of the courts. The legislature merely states the general rule and the application of that rule lies with the courts. The judge is free to exercise sentencing discretion, in choosing the nature and degree of the sentence within the range provided for by the statutory maximum and minimum sentences. The maximum penalty is only one of the sentencing factors the judge must take into consideration when individualising the sentence in a particular case. Other factors include current sentencing practices (the actual sentences given for past examples of the offence), the nature and gravity of the offence, the offender’s level of responsibility and moral culpability for the offence, the offender’s previous character, and any aggravating or mitigating circumstances. However, these other factors could hardly be applied adequately if the range within which judges have the freedom to apply them is not clearly and precisely determined in advance. Furthermore, only with a clearly defined maximum penalty can the authorities comply with the requirements of lex praevia , prohibiting retroactive application of the more stringent law and determining which provision was the more lenient one (see Del Río Prada , cited above, §§ 112 and 114).

6. In short, requiring absolute clarity by laying down the maximum penalty in advance protects the rights of the defendants and their interest in legal certainty, and achieves justice, equal treatment, and consistency in sentencing. Moreover, determining clearly and precisely the maximum penalty in advance and, more generally, applying nulla poena sine lege not only limits unwarranted judicial discretion, but actually safeguards judicial independence and thus its authority, as well as the integrity of criminal justice, by preventing current events, immediate public opinion, prejudice or real or perceived political pressure from influencing the sentence. In the long run, coherent sentencing policy and consistency in sentencing preserve confidence in criminal prosecution and uphold the justice system in the eyes of the public.