PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES

While I agree with the majority, for the reasons given in the judgment, that there has been no violation of Article 4 of Protocol No 7, I do not share the conclusion that there has been no violation of Article 6 of the Convention in this case.

I believe that inasmuch as the relevant legal provisions applied in this case provided for a fixed period of imprisonment depriving in this way the competent court from exercising any discretion so as to adjust the sentence to the particular facts and circumstances of the case, including the personal circumstances of the accused, there is a breach of Article 6 of the Convention. A penal provision, like the one in issue in this case, providing for two years ' imprisonment to be imposed in all cases of a certain category, irrespective of the circumstances or merits of each particular case when in such category there are bound to arise cases where the imposition of such punishment would (because of the circumstances of the case) be disproportionate to the gravity of the offence is, in my opinion, a provision incompatible with the right to a fair trial.

In view of the provision for a fixed period of two years ' imprisonment the court in imposing such sentence could not and therefore did not enter into an examination of any facts which would be relevant to the question of adapting the sentence to the specific circumstances of the case. Therefore, we cannot say whether in this case the sentence in question was in actual fact disproportionate to the gravity of the offence or not. What matters, however, is the principle involved and the possibility that the judge might have imposed a lesser sentence if he had had the power to adjust the sentence to the circumstances of the case.

I do not agree with the majority when they say that “there is no precedent in the case-law of the Convention institutions on Articles 6 or 7 in which a legislature has been censured for laying down a fixed sentence or the courts required to ' adapt ' such a penalty to the circumstances of the case” (see paragraph 58 of the judgment). In fact, it appears that the Court in its case-law “has not excluded that an arbitrary or disproportionately lengthy sentence might in some circumstances raise issues under the Convention” ( Sawoniuk v. the United Kingdom (dec.), no. 63716/00, ECHR 2001-VI). And a penal provision for a fixed sentence may very well result in a “disproportionately lengthy sentence” so long as such provision does not allow the adjustment of the sentence to the circumstances of a particular case.

I believe that the right to a fair hearing/trial is not confined to procedural safeguards but extends also to the judicial determination itself of the case. Indeed, it would have been absurd for the Convention to secure proper procedures for the determination of a right or a criminal charge and at the same time leave the litigant or the accused unprotected as far as the result of

such a determination is concerned. Such approach would allow a fair procedure to end up in an arbitrary or evidently unjustified result. The possibility of a judicial adjustment of the sentence to the particular circumstances and merits of the case in order to avoid the imposition of a disproportionately lengthy or unjust sentence is in my view implicit in the concept of a fair determination of a criminal charge.

Furthermore, the view can also be propounded that the fixing of mandatory sentences by the legislature with the result that no discretion is left to the courts to adjust the sentence to the circumstances of every particular case is difficult to reconcile with the notion of separation of powers between the legislature and the judiciary (see, mutatis mutandis , Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV).

Certainly the legislature may lay down the type of sentence for any offence. But the courts must at the same time be allowed to take account of the particular facts of the cases which come before them in order to determine the exact punishment they consider just and appropriate within the framework of the relevant legislation. If the courts are not given the necessary discretionary power to adapt the sentence to the individual case then, inevitably, they will be hindered in their judicial role requiring them to apply sentencing principles and to ensure independence, fairness and impartiality – a corollary of which is the avoidance of punishment that is disproportionate to the gravity of the offence. The practical result of depriving the courts of their discretionary powers is that the sentence is imposed directly and in abstracto in all cases, irrespective of their factual differences, by the legislature, contrary to the obligation to conduct a fair trial and to the principle of separation of powers.