CONCURRING OPINION OF JUDGE ZUPANČIČ

I agree with the outcome in this case. Still, I find that one could expand on the reasoning in key paragraph 46, where we say:

“ Recidivism, which is defined by law, is an aggravating factor – in personam and not in rem , since it is linked to the offender ’ s conduct – in relation to the second offence, warranting a harsher sentence, where appropriate, for the recidivist. The Court considers that recidivism can only result from the commission of a second offence; however, for the offender to be legally classified as a recidivist, with the consequences this entails in terms of the penalties faced, the second offence must, in addition, have been committed within the statutory period for the purposes of recidivism as laid down in the relevant legislation in force at the time of the commission of that offence. ”

Here the Court maintains as crucial the distinction between the in personam and the in rem aspects of an aggravating circumstance – in this case the recidivism of the criminal actor.

By reverse logic the judgment thus implicitly maintains that the criminal act per se – in contradistinction to recidivism as a status – is somehow an in rem phenomenon. It is presumably also part of this in rem quality that any criminal act precludes retroactivity – that is, the applicability of any subsequent legislation creating an offence to any conduct that precedes it in time. This is what we ordinarily understand under the prohibition of retroactivity, the principle of legality , nullum crimen sine lege praevia , paragraph 1 of Article 7 of the Convention, etc .

Since it is likely that the need for the above distinction between the in rem and in personam aspects of criminal responsibility will recur , I feel it to be useful to probe deeper into this question.

Paragraph 1 of Article 7 of the Convention provides:

“N o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. ” (emphasis added)

A priori , the word “ act ” is something in rem . No legislature may say: “You will be punished if you are a drug addict.” It may say, of course: “You will be punished if you commit an act of drug taking.”

Let us consider this from a commonsensical point of view. Is it not obvious that a particular person goes to prison because he or she is a drug addict? Moreover, most of the doctrines of the substantive criminal law (premeditation, intent, negligence as an omission of reasonable care, insanity, necessity, duress, mistake of fact , and so on) are concerned with the principle of subjective responsibility. The act, in other words, must be an authentic manifestation of the actor ’ s being, of his or her mental status, of his or her personality. Premeditation, for example, invites a higher level of criminal liability – because a premeditated act is a more authentic expression of the criminal actor ’ s personality – than an act committed in the heat of passion. Mental illness (insanity) on the other hand severs the connection between the personality (being, status) and the act. This is why Shakespeare has Hamlet say:

“If Hamlet in his madnesse did amisse, That was not Hamlet, but his madnes did it, and all the wrong I e ’ re did to Leartes, I here proclaim was madnes.” ( Hamlet (Quarto 1) V.2 )

It is therefore clear that in the final analysis substantive criminal law aims all its criteria for responsibility, as well as all its sanctions, not in rem but ad hominem and in personam .

T he question is thus not why recidivism should be considered an exceptional in personam criterion for aggravated liability at all . The question is why criminal law nevertheless focuses on the act in the first place, since an act is punishable only if it is an adequate expression (the principle of subjective responsibility) of the actor ’ s being (personality, status). Why do criminal law ’ s criteria of responsibility focus on a symptom (the act) rather than on the underlying disease (the personality of the actor)?

The issue arose direct ly in the famous constitutional- law case of Robinson v. California [1] . At the time, the S tate of California had a statute which made it criminal to be a drug addict. Mr Robinson and a few of his friends came down from Nevada into California . Apparently, Mr Robinson had been committing the acts of drug consumption in Nevada and, at any rate, when he was apprehended in California it was obvious that he was a drug addict. He was duly convicted for being a drug addict. His case then ascended through S tate and federal judicial pyramids; in the end the Supreme Court decided that the applicable California statute was unconstitutional because it made a status (that of being a drug addict) a criminal offence, rather than the act of drug taking.

Characteristically, while reaching the correct conclusion the Supreme Court of the United States , even at the time, was not capable of explaining why it was unacceptable to make a status an offence. Likewise, the American legal scholars never got to the bottom of the question, which at any rate has been much better defined by the French Court of Cassation. The reason lies in the simple need, as pointed out above, to turn the question around.

The burden of proof, as it were, must lie on the side of the conventional and accepted wisdom maintaining the misleadingly “obvious” premise according to which criminal responsibility springs from the act and not from the actor. The real question, to put it simply, is: why deal with the symptom of the disease (the act) when one could deal with the real thing, the disease (the underlying personality of the actor)?

Once the question is put this way the answer becomes simple.

Although this is impolite, the question can easily be answered with another question. How many times must the criminal actor commit the act of drug taking in order to be a drug addict? The simple fact that there can be no clear answer to the question explains why substantive criminal law has no other choice. It must focus on the symptom rather than on the disease. It must focus on the act occurring at a determinate time, in a determinate place and in a certain manner.

For that, in turn, the explanation is procedural rather than substantive. The determinate nature of the time, place and modality of the act (minor premise: the factual elements of the act) permit it to be logically matched up to the elements of the pre-existing definition of the offence in the Criminal Code (major premise: the abstract elements of the crime in the legal rule). There can be no guarantee offered by the principle of legality unless the subject matter of an offence is both clearly defined in abstracto as well as prove d beyond reasonable doubt in concreto .

An act can be so defined, but not a status.

A status cannot be properly litigated. If we speak of the status of “being” a drug addict, murderer, robber, arsonist , etc., both the major and the minor premises of the syllogism are fuzzy, vague and indistinct. Such fuzziness – for example, because it is not subject to controversy – is permitted in a medical diagnosis. In law, the vagueness reduces to nothing both the procedural and the substantive safeguards. One can clearly define, so that they can be properly litigated, the elements of the act of drug taking, murder, robbery, arson , etc. One cannot properly define and litigate the aspects of “ being ” a drug addict, murderer, robber, arsonist , etc. For this procedural and practical reason criminal law is constrained to focus on the act rather than on the status of being such and such a criminal, which would be more just and adequate. However, it is still true that in the end it is the criminal that goes to prison, not his act.

Nevertheless, as pointed out above, the doctrine concerning the principle of subjective responsibility provides the middle ground between the act and the actor. As they say in common-law jurisdictions, actus non est reus , nisi mens sit re a .

The specificity of the case before us, on the other hand, lies precisely in the fact that for once the in personam status of the criminal actor – his being a recidivist – does lend itself to precise definition and, as is made clear by the case itself, it can be properly litigated. Here, the crucial distinction between the act of committing another offence on the one hand and the status of being a recidivist on the other hand concerns time .

An act is a one-time historical event that falls, the moment it is committed, irretrievably into the past [2] . It cannot be resurrected from the past, unless indirectly; hence all the evidentiary difficulties in law generally, and especially in criminal law.

By contrast, a status (for example, that of being a recidivist) is something that endures. It continues in time. Thus , while criminal responsibility for a past criminal act , which also continues in time, is always retrospective, the responsibility for being a recidivist coincides in real time, is simultaneous, and thus not retrospective in the same way. Besides, the continuity in time of recidivism is subject to precise legal definition.

It thus cannot be said that the alleged timing gap which forms the subject matter of the present judgment is resolved retroactively. The law could easily say: semel recidivus semper recidivus .