DISSENTING OPINION OF JUDGE POPOVIĆ

(Translation)

The majority held that there had been no violation of Article 7 of the Convention. For the reasons set out below, I am unable to agree with their conclusions.

1. The present case concerns successive conflicting criminal statutes .

2. Two statutory provisions were in conflict, namely Article 57 of the Criminal Code , as applicable before 1 March 1994 , and A rticle 132-9 of the new Criminal Code , which came into force on 1 March 1994. Under the former legislation, the applicant satisfied the conditions for not being treated as a recidivist, but the position was different under the subsequent legislation . The conclusion to be drawn from this is that the previous law was the more lenient of the two.

3. It is indisputably acknowledged in legal theory that the general rule for settling such conflicts between laws is that the more lenient law should apply [3] .

4. In reaching the same conclusion in the light of the Court ’ s case-law, I consider myself to be bound above all by the precedents established in Kokkinakis v. Greece (25 May 1993, Series A no . 260-A) and G. v. France (27 September 1995, Series A no. 325-B).

The rule set out in Kokkinakis (§ 52) is “the principle that the criminal law must not be extensively construed to an accused ’ s detriment ” .

In G. v. France ( § 26) the Court noted that the domestic courts had applied the law in the applicant ’ s favour, on the basis of “the principle that the more lenient law should apply both as regards the definition of the offence and the sanctions imposed ”. That reasoning formed the ratio decidendi for the Court ’ s decision.

The two rules I am referring to here are deeply rooted in the old adage in dubio pro reo , despite the fact that the Court has not considered this adage under A rticle 7 of the Convention.

5. The general rule for resolving conflicts between successive criminal laws therefore dictates quite simply that the more lenient law should be applied. This rule is well established in the Court ’ s case-law.

In Jamil v. France (8 June 1995, § 34, Series A no. 317-B) the Court noted: “... at the time when the offences of which Mr Jamil was convicted were committed, the maximum period of imprisonment in default to which he was liable was four months ... The Paris Court of Appeal nevertheless applied a new law which had increased the maximum to two years ...” The Court found a violation of A rticle 7 of the Convention.

In Streletz, Kessler and Krenz v. Germany ([GC], nos . 34044/96, 35532/97 and 44801/98, ECHR 2001-II) and K.-H.W. v. Germany ([GC], no . 37201/97, ECHR 2001-II) , the Court endorsed the application of more lenient or favourable legislation by the national courts [4] .

In addition, the Court has on a number of occasions found violations of A rticle 7 § 1 of the Convention in that the national courts had not applied the more lenient or favourable law ( see Veeber v. Estonia (no. 2) , no . 45771/99, ECHR 2003-I , and Gabarri Moreno v. Spain , no . 68066/01, 22 July 2003) [5] .

6. I consider that A rticle 7 § 1 of the Convention was infringed in the present case because the Court endorsed the imposition of a harsher penalty than would have been imposed if the role of precedents which I consider binding had not been ignored. This role entails applying the general rule on settling conflicts between successive criminal statutes.

7. Although legal writers are unanimous as to the general rule for resolving conflicts between successive criminal laws , there are exceptions to the rule – that is to say, situations in which the less lenient law should be applied. This is so, for example, in the application of interpretative or declaratory laws, laws governing judicial procedure or the organisation of the courts , and laws concerning the execution of sentences ( subject to certain conditions in the last-mentioned case ). The Court ’ s case-law sometimes appears inclined to allow exceptions of this kind ( see Coëme and Others v. Belgium , nos . 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, ECHR 2000-VII). In Coëme and Others the Court endorsed the immediate application of a procedural law even though it was harsher than the previous law . Yet in its judgment (§ 145) it emphasised the principles set forth in its own case-law concerning the application of A rticle 7 of the Convention , the guiding rule of which is that “ the criminal law must not be extensively construed to an accused ’ s detriment ” . It should be noted, however, that the French courts ’ case-law on the subject remains hesitant as regards preventive measures [6] .

8. A special case among these kinds of exception in French law concerns conflicts between laws in the event of recidivism [7] . The Court of Cassation ’ s case-law , which dates back to the late nineteenth century and has been settled ever since , advocates a departure from the general rule for settling conflicts between successive criminal laws in the event of recidivism . Legal writers, for their part, have observed that this case-law has had “fearsome effects since the entry into force of the new Criminal Code ” [8] .

The national courts are certainly better placed than the European Court to assess the facts and to apply a rule of domestic law . Nevertheless , I would point out that the general rule for settling conflicts between successive criminal statutes is also set forth in domestic law, and that the Court is bound by its own c ase-law. I can see no reason for the Court to depart from its clear and settled case-law cited above in allowing an exception previously unknown at European level .

[1] 1. Robinson v. California , 370 U S 660 (1962), available at http://caselaw.lp.findlaw.com/ scripts/getcase.pl?court=US&vol=370&invol=660

[2] 1. Of course, criminal responsibility, which attaches to the being of the actor, does endure in time. This is what makes punishment logically reasonable.

[3] 1. See J.H. Robert, Droit pénal général , sixth edition, Paris, 2005, p. 150, and C. Marie, Droit pénal général , Paris, 2005 , pp. 46-47.

[4] 1. See Streletz, Kessler and Krenz (§ 55) : “ the sentences imposed on the applicants were lower, by virtue of the principle of applying the more lenient law ...” Supporting this case-law on a broader level , l egal writers have spoken of a “constructive” interpretation of Article 7 of the Convention (see J . -F . Renucci, Droit européen des droits de l’homme , Paris , 2002, p. 216.

[5] 2. As regards the viewpoint of legal writers, see D. Gomien, Short guide to the European Convention on Human Rights , Strasbourg , 2005, pp. 70-71. In Veeber (§ 38) “ the domestic courts applied the ... amendment to the law retrospectively to behaviour which did not previously constitute a criminal offence ”, meaning that the less lenient law was applied . The Court found a violation of A rticle 7 of the Convention.

[6] 3. C. Marie, op. cit. , p. 48.

[7] 1 . J.H. Robert, op. cit., p. 169.

[8] 2 . Ibid.