CONCURRING OPINION OF JUDGE NICOLAOU

1. I have voted with the majority on all aspects of the case but, in so far as the finding of a violation of Article 7 of the Convention is concerned, I rely on reasoning which is not identical to that of the majority. This difference also affects the manner of coming to a conclusion on Article 5 § 1.

2. What I regard as the essential elements that bear on the Article 7 issue may be shortly stated. In eight different sets of criminal proceedings, concluded between 18 December 1988 and 8 May 1990, the applicant was convicted of a multitude of offences, including some of the most grave, committed in the context of terrorist activity during the period 1982-87. The applicant was sentenced to various terms of imprisonment, receiving a considerable number of thirty-year terms for murder. The total length of imprisonment would have exceeded 3,000 years if the sentences were to have run consecutively.

3. National systems deal, each in its own way, with the problem posed by a series of prison sentences that may be imposed either in the same or in different proceedings. It is obviously necessary for a decision to be taken on what such sentences entail. Should they be consecutive or concurrent and should there be a ceiling? In this regard rules must take into account the public-interest purpose of criminal-law enforcement, including the protection of life, while at the same time allowing for a fair and humane approach. Further, where the law provides for life sentences, rules are also expected to be in place for achieving a balance between the interests involved.

4. In whichever way a system is constructed, both principle and the Court’s case-law require that a distinction be maintained between, on the one hand, provisions concerning the penalty allowed by the law pre-dating the offences, seen always in the light of any subsequent more lenient law since the actual sentence cannot, consistently with Article 7, exceed the limit set by the lex mitior (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September 2009); and, on the other hand, provisions which regulate the subsequent manner of enforcement or execution of the sentence, principally those relating to remission. As has been said, the dividing line may not always be clear cut (see Kafkaris v. Cyprus [GC], no. 21906/04, § 142, ECHR 2008). When that is the case, it is all the more necessary to specify where that line is to be drawn and to explain why. There is also another distinction which needs to be made, but I shall come to that later.

5. At the time when the offences were committed, the position was governed by the Criminal Code of 1973, Article 70.2 of which was viewed by the courts as providing, firstly, that whatever the aggregate of the years of imprisonment imposed might be, it would be converted to a maximum of only thirty years; and, secondly, the figure so fixed would then form the sole basis for applying the law on remission of sentence. According to Article 100 of that Code (as amended by Law no. 8/1983), a convicted person was entitled to one day’s remission for every two days of work in detention; and although this was subject to the approval of the judge supervising the execution of sentence, approval was certain in the absence of fault on the prisoner’s part. In the present case, in each of the last five sets of criminal proceedings, the Audiencia Nacional , as the trial court, directed its attention to how the various sentences should be approached and, following established judicial practice, concluded that the sentence was finally to be one of thirty years’ imprisonment. When all eight sets of proceedings had been concluded, the Audiencia Nacional , acting under the power given to it by section 988 of the Criminal Procedure Act, examined, in the light of the totality of the sentences, what the final unified sentence should be under the provisions of Article 70.2 of the 1973 Criminal Code. By a decision of 30 November 2000 it fixed the maximum term of imprisonment at thirty years, to which, inter alia , the rules on remission of sentence based on work done in prison would apply.

6. It is germane to note that prior to the time when the applicant’s maximum term of imprisonment was finally fixed, the Supreme Court itself had stated, in an order dated 25 May 1990, that the competent court for applying Article 70.2 of the Criminal Code of 1973, in pursuance of section 988 of the Criminal Procedure Act, was the trial court (the Audiencia Nacional ). It explained that this was so because the matter concerned the fixing of the sentence and not its execution, responsibility for which lay with another judge specifically assigned to that task. The high-water mark was reached when the existing judicial practice was upheld by the Supreme Court in a judgment handed down on 8 March 1994. The Supreme Court affirmed, after having specifically reviewed the matter in question, that the maximum thirty-year term provided for by Article 70.2 of the Criminal Code was a “new sentence – resulting from but independent of the others – to which the sentence adjustments ( beneficios ) provided for by the law, such as release on licence and remission of sentence, apply”; and it pointed out that this understanding of the law was also reflected in Article 59 of the Prison Regulations of 1981. The judicial conclusion that any sentence adjustments ( beneficios ) should take as a starting-point the “new sentence” meant, of course, that the most severe penalty a convicted person could face was imprisonment for thirty years minus any possible remission. In two subsequent judgments, one delivered on 15 September 2005 and the other on 14 October 2005, although the Supreme Court did not specifically revisit the point, it reiterated, using essentially the same language in both, that the length of imprisonment arrived at by converting the sentences originally imposed constituted a new and independent sentence resulting from them and that sentence adjustments ( beneficios ), provided for by the law, were to be applied to the new sentence, not to the original ones.

7. The matters in issue in the present case make it unnecessary to comment either on the scope and adequacy of the relevant legal provisions or on the view taken by the judicial authorities as to how they should be interpreted. What is significant is that, for persons within the State’s jurisdiction, the criminal law was authoritatively defined by a judicial decision whose temporal effect reached back in time to when Article 70.2 of the Criminal Code of 1973 came into force. The Supreme Court judgment of 8 March 1994 affirmed the interpretation that had already been given to that provision and the resulting clear and constant judicial practice which pre-dates the commission of the offences in the present case. There was never any hint of uncertainty. Whatever the number of infringements of the criminal law and whatever their gravity and the respective penalties provided for in respect of each, the real penalty to be incurred would in no case exceed a maximum imprisonment of thirty years, this being the uppermost limit of the final new and independent sentence, to which the remission system would then be applied in the execution of the sentence, thereby leading to a reduction of that limit as well. This is the crucial point in the present case. Any subsequent change that introduced retrospectively a higher penalty, whether by statute or by case-law, could not but fall foul of the protection afforded by Article 7 of the Convention.

8. In fact, in the present case, at a certain point in time the applicant was credited with an amount of work which, if the law had remained unaltered, would have required her release from prison well before the end of the thirty-year term. But the situation had by then changed. Statute law introduced stricter provisions for serious crime; and then came the judicial reversal of the previous case-law already described. The new Criminal Code of 1995, with effect from 1996, provided for higher conversion penalties and abolished the remission of sentence for work done in prison. However, it also contained transitional provisions predicated on the most lenient law for persons already convicted under the Criminal Code of 1973. More stringent provisions were subsequently added by Law no.7/2003, intended to ensure that in the most serious cases the prisoner served the whole of the term fixed as a result of converting the sentences originally imposed. A short time later, in the context of the provisions of the Criminal Code of 1973 on remission entitlement that were still applicable, the Supreme Court adopted a new interpretative approach regarding the meaning and purpose of the sentence that resulted from conversion. By a judgment handed down on 28 February 2006, it reversed the previous case-law on the interpretation of Article 70.2 of the Criminal Code of 1973, by reading that provision as meaning that “the thirty-year limit does not become a new sentence, distinct from those successively imposed on the convict, or another sentence resulting from all the previous ones, but is the maximum term of imprisonment [ máximo de cumplimiento ] a prisoner should serve in prison”.

9. Thus, the Supreme Court reverted to the several sentences which had originally been imposed and declared their continuing significance. Consequently, the sentence which resulted from Article 70.2 was no longer the real maximum penalty for the totality of the offences but merely the limit of the period to be actually served when the remission system was applied successively to the original sentences, as part of the manner of execution. In enunciating this new judicial position – the “Parot doctrine” – the Supreme Court felt unfettered by previous authority. It gave detailed reasons for the new interpretation. It derived support from, inter alia , the wording of the relevant provisions of the Criminal Code of 1973, paying particular attention to the term pena (the sentence imposed) and condena (the sentence to be served), and it drew conclusions on the basis of the difference between them. As I have already stated, this Court should refrain from expressing anything resembling a choice between domestic interpretations. It is in fact quite irrelevant whether that interpretation was sound or, in any event, warranted. It is also irrelevant whether the Supreme Court was, as it explained, free to depart from its previous judgment of 8 March 1994 and justified in doing so.

10. In my opinion there are two relevant questions to be asked from the Convention point of view. The first is whether there was, at the time of the commission of the offences, a judicial approach creating a firm and constant practice that gave statute law a meaning that was both tangible and certain. The answer to this must be in the affirmative, particularly when the matter is seen in the light of the interpretation given, at a certain point in time, by the Supreme Court in its judgment of 8 March 1994. The Supreme Court’s new interpretation of 28 February 2006 was quite obviously not the result of a gradual and foreseeable clarification of case-law in the sense of S.W. v. the United Kingdom (22 November 1995, Series A no. 335 ‑ B), C.R. v. the United Kingdom (22 November 1995, Series A no. 335–C), and later case-law (cited in paragraph 93 of the present judgment). The second question is whether it was, in any event, possible to change that view of the law with retroactive effect. The former view of the law could, indeed, be changed; but the retroactive operation of the judgment, a feature also found in other jurisdictions, is not compatible with Article 7 of the Convention, in the same way that it would not be compatible in the case of statutory retroactivity as, for example, in Welch v. the United Kingdom (9 February 1995, Series A no. 307-A).

11. I have so far been addressing the Article 7 issue, which, in my view, turns entirely on what can be taken to have been the real maximum penalty to which the applicant was liable at the time the offences were committed. I have tried to explain why, in terms of Article 7 § 1, the penalty “imposed” was to be equated with the converted maximum sentence under Article 70.2 of the Criminal Code of 1973. The analysis of this matter focuses on the way the sentence in question was defined and, although the object of arriving at such a definition concerned the effect that it would have on how the remission system was applied, that system did not itself acquire any intrinsic Article 7 significance. This is not to say, however, that the judicial change did not have an impact on the applicant’s rights. In fact it did. But only on the applicant’s Article 5 § 1 rights.

12. It is at this point that the next distinction becomes relevant. Provisions concerning the manner of enforcement or execution of sentences must be distinguished not only from those which bear on Article 7 but also from those which bear on Article 5 § 1. Changes within the general prison regime, that is to say those that affect the manner in which the sentence is executed, may adversely affect the person in detention, as for example in Hogben v. the United Kingdom , (no. 11653/85, Commission decision of 3 March 1986, Decisions and Reports 46, p. 231), and Uttley v. the United Kingdom ((dec.), no. 36946/03, 29 November 2005), but they will not be inconsistent with either Article 7 or Article 5 § 1. There may nevertheless be changes which go beyond that. A problem will then arise under one or both of those Articles. A change subsequent to the passing of a final lawful sentence – the one effectively imposed – does not, in my view, raise an Article 7 issue. It can, however, call into question the Article 5 § 1 lawfulness of detention in respect of a given period.

13. In the present case, for the reasons I have stated, the retroactive change involving the application of the remission system did not, in itself, contravene Article 7. It was, however, incompatible with Article 5 § 1, for it deprived the applicant of an acquired right to earlier release. The majority in this case attribute importance to the lack of foreseeability at the time the applicant was convicted and at the time the applicant was notified of the change (see paragraphs 112 and 117 of the judgment) and they make that an integral part of the reasoning by which they arrive at the conclusion that there has been a violation of Article 7. I am unable to follow that reasoning. In my respectful opinion, the change in the application of the remission system after the Article 70.2 sentence had been fixed goes only to the Article 5 §1 issue; what is relevant in so far as Article 7 is concerned is, subject to the lex mitior rule, the change in the real maximum penalty which existed at the time the offences were committed. As to the rest, I gratefully adopt the majority’s reasoning on Article 5 § 1.