DISSENTING OPINION OF JUDGE SAJÓ

Unfortunately, I am unable to agree with the majority ’ s position that there has been a violation of Article 7 of the Convention. Moreover, I disagree with the majority ’ s analysis that the lex mitior principle should apply in the present case.

1. Chronology of the events

The 1994 Criminal Code of Slovenia stipulated that the maximum sentence was twenty years for extremely serious offences and that the maximum sentence for combined offences could not exceed twenty years. In 1999, the Slovenian legislature passed an amendment increasing the maximum sentence for extremely serious offences (such as murder) to thirty years and the maximum overall sentence to thirty years if one of the sentences to be joined amounted to a thirty-year prison term.

In September 2004 the applicant was sentenced to four years ’ imprisonment for robbery (which he was to serve between 2007 and 2011).

Subsequently, the 2008 Criminal Code was enacted. Article 46 § 1 stated that the maximum sentence for non-life imprisonment offences would be capped at thirty years. Article 53 § 2 (2) stated that the overall sentences for combined offences “shall exceed each sentence determined for a particular offence ... [but] may not exceed twenty years”. There was no express provision dealing with combined sentences where one of the multiple offences carried a sentence of thirty years.

On 9 April 2009 the applicant was convicted of a murder that occurred in 2002 and was sentenced to thirty years ’ imprisonment (the judgment and sentence became final on 9 December 2009). On 16 June 2009 the applicant was convicted of paying with a bad cheque and fraudulent use of a bank card and was sentenced to five months ’ imprisonment (the judgment and sentence became final on 7 October 2009).

In November 2011 an amendment was passed which corrected Article 53 § 2 (2) of the 2008 Criminal Code to read that the maximum combined sentence should not exceed thirty years and that an overall sentence of thirty years ’ imprisonment was to be imposed if one of the prison sentences to be joined amounted to such a term. (However, the 2011 amendment came into force only on 11 May 2012.)             

On 28 November 2011 the applicant applied to the Ljubljana District Court to have all three of his prison terms combined in one overall sentence.

In his appeal the applicant relied on the principle of nullum crimen et nulla poena sine lege , arguing that the law was unclear and that the interpretation of the law should not have been to his detriment and that the maximum limit of twenty years, which was the more lenient penalty, should have applied. The Ljubljana District Court and the subsequent appellate courts all rejected the applicant ’ s argument. Instead, they agreed that the applicant should serve a combined sentence of thirty years.

The issue in the present case is whether or not the domestic courts were in violation of the Convention in interpreting Article 53 § 2 (2) of the 2008 Criminal Code as permitting a maximum sentence of thirty years for the combined offences in the applicant ’ s case.

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According to the majority (see paragraph 55 of the judgment), a literal and strict application of Article 53 would lead to contradictory results that are impossible to reconcile. Article 53 mandates that the overall sentence must exceed each individual sentence (which in the applicant ’ s case would require a sentence of thirty years). Simultaneously, the article also mandates that no overall sentence may exceed twenty years. Thus, a literal and grammatical approach to statutory interpretation is clearly of no use in the present situation. It is on this basis that the majority chose to proceed by applying the principle of lex mitior to reconcile the conundrum.

I respectfully disagree with the majority ’ s conclusion that lex mitior should have been applied by the domestic courts to resolve the conundrum in Article 53 § 2 (2). In fact, there is no subsequent more lenient law to be applied to the applicant in the present case, which is simply one of the reasonable interpretation of domestic law. Moreover, this case is not about “punishment” as understood in the case-law of the Court, and therefore Article 7 does not apply. Finally, even assuming that it does, lex mitior is not applicable to the case.

2. Reasonable interpretation of the law in force

The Government argued that the domestic courts had adopted appropriate canons of interpretation when they considered the relationship of Article 53 § 2 (2) to other Articles of the 2008 Criminal Code, the historical revisions that had been made to the Slovenian Criminal Code and the intentions of the legislature when the Code was reviewed in 2008.

I share the concerns of the majority regarding the dangers that uncertain provisions and cavalier interpretation of the provisions of a criminal law (for example, the use of analogy) represent for the rule of law in matters of criminal law and procedure. I also agree that legislative intent cannot be used to the detriment of the accused if it departs from the clear language of the law. Our disagreement is limited to the clarity of the domestic criminal law.

It is well established case-law that “however clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation” (see Kafkaris v. Cyprus [GC], no. 21906/04, § 141, ECHR 2008 ). A law must also be of a certain quality: it must be formulated in such a way that citizens who are affected have the means to foresee, to a reasonable degree, the consequences of a given action [1] (see Margareta and Roger Andersson v. Sweden , 25 February 1992, § 75, Series A no. 226 ‑ A). The notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover, and the number and status of those to whom it is addressed (see Cantoni v. France , 15 November 1996, § 35, Reports of Judgments and Decisions 1996 ‑ V, and Groppera Radio AG and Others v. Switzerland , 28 March 1990, § 68, Series A no. 173).

In Soros v. France (no. 50425/06, § 52, 6 October 2011), the Court concluded that a degree of imprecision arising from the way in which a statute has been drafted is not on its own sufficient to constitute a violation of Article 7, if in the majority of cases the meaning is clear enough and the meaning is only doubtful in a minority of cases. It is immaterial in the present case whether in Soros v. France there were indeed no multiple or different legal definitions. As highlighted by the dissent in Soros , it was unnecessary for the French legislature to deliberately choose an imprecise term that was inherently vaguely defined in the statute. Neither of these situations arises in the present case. There is a difference between a term containing a clear linguistic or typographical error, where the intended true meaning of the term is clear, and a term that is (by definition or otherwise) inherently vague and cannot be clarified in judicial practice by ordinary means of interpretation.

The Court ’ s own case-law has previously supported domestic courts adopting a method of statutory interpretation that takes into consideration the intention of the legislature at the time the statue in question was drafted (see Boulois v. Luxembourg [GC], no. 37575/04, § 98, ECHR 2012). This approach towards statutory interpretation exists within the jurisprudence of the Council of Europe member States.

The present circumstances clearly indicate that the domestic legislature used a form of words which, read in isolation, would have amounted to a legislative error, in view of the legislature ’ s intent when it was in the process of reviewing Article 53 § 2 (2). No one can reasonably assume that a legislator would decrease the maximum sentence that had already been determined for the simple reason that there had been an additional conviction to which the rule on cumulative sentencing seemed to apply. Furthermore, given the surrounding factual circumstances, the domestic courts ’ interpretation was reasonable when they concluded that the Slovenian legislature had quite clearly intended to maintain the maximum sentence for combined offences at thirty years. The drafting revisions that were made in the 1999 amendment to the 1994 Criminal Code further illustrate a consistent pattern of intent on the part of the legislature to maintain the maximum sentence for serious crimes and for combined sentences at thirty years, when a prison sentence of that duration had been determined for one of the multiple criminal offences.

Adopting the majority ’ s approach would result in a sentencing procedure that would be unjust, arbitrary and absurd, with persons convicted of multiple homicides being sentenced to ten years less than a person convicted of only one murder. This is further evidences that, despite the erroneous wording of Article 53 § 2 (2), the Slovenian legislature clearly intended to maintain the maximum sentence for combined offences at thirty years.

I find the provision to be sufficiently clear in the present case. The content of Article 53 § 2 (2) does not concern the actual substantive offence. It is designed only to lay down an accounting rule for cumulative sentencing. At the time of the murder offence in 2002 the applicant could not have expected that he would be sentenced to a lesser penalty than the one stipulated for murder, if he were to commit further offences and have his sentences consolidated. It was clear under the law at the time the murder was committed that the applicant could be sentenced to a maximum of thirty years, and therefore the provision does not raise any foreseeability issues. Most importantly, this rule was never changed during the period in issue.

3. The applicability of lex mitior

Was there a more lenient law, introduced after the crime was committed, that should have been applied?

The Court has chosen to apply the principles of lex mitior as developed in Scoppola v. Italy (no. 2) ([GC], no. 10249/03, 17 September 2009), and later reaffirmed in Del Río Prada v. Spain ([GC], no. 42750/09, ECHR 2013). However, in both Scoppola (no.2) and Del Río Prada , there were two separate but conflicting laws that could determine the applicants ’ final sentence. It was therefore necessary for the Court to decide which Code should prevail over the other, and in both cases the majority chose to adopt the principles of lex mitior and adopt the more favourable law for the defendant.

By contrast, there is only one relevant Code in the present case, namely the 2008 Criminal Code, which was applicable at the time the applicant was given a final sentence of thirty years for the 2002 murder. Both at the time of the murder and at the time of the final sentencing the same punishment (thirty years ’ imprisonment) applied. In 2008 the rule on combined sentencing was changed and it became more “lenient” than the rule in force when he had committed the murder, as far as combined sentences were concerned, but it could not affect that single sentence. There was a prior conviction for an act committed before the change in the law, but that sentence had already been made final at the time of the change in the law (2008). The applicant ’ s third conviction occurred in 2009, shortly after the conviction for murder; therefore, the twenty-year maximum was applicable to that conviction – but not to the two others. As the first sentence had been served by the time the applicant applied for a combined sentence, the issue was the combination of the murder sentence with the new one. (Applying absorption theory one could also argue that the five-month sentence which was handed down in 2009 for paying with a bad cheque had already been served by 2011.)

Unlike the present case, neither Scoppola (no.2) nor Del Río Prada raised issues relating to internal logical inconsistences in the applicable statute. Thus, the issue remains simply a question of interpreting the domestic law. It was not argued by the domestic courts that the law as it stood before the 2008 Criminal Code should have been applied (that is, the 1994 Criminal Code with the 1999 amendment), for example because that had been the applicable law at the time the murder was committed in 2002.

Even assuming that the misleading wording of Article 53 § 2 (2) can be arguably invoked in favour of the applicant as resulting in a more lenient sentence, it is not covered by the lex mitior principle, which concerns intertemporality issues. The judgment risks stretching the scope of lex mitior beyond its intended limits in Scoppola (no.2) and Del Río Prada . This expansion of lex mitior by extending it to this case would result in a position whereby the most favourable interpretation of the law prevails over all other forms of statutory interpretation, even if such interpretation runs counter to clear legislative intent and results in unfair sentencing standards. In other words, it is not the most favourable among the rules in force at different times between the commission of the crime and conviction that applies, but the most favourable interpretation of the law.

With regard to the principle of lex mitior , the Rome Statute of the International Criminal Court states that “[i]n the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply” (Article 24 § 2, emphasis added). In the present case, there was no change in the law prior to the final judgment handing down a thirty-year sentence.

The Court ’ s case-law has consistently emphasised that Article 7 is meant to guard against arbitrary results in sentencing (see S.W. v. the United Kingdom , 22 November 1995, § 35, Series A no. 335 ‑ B). Thus, in the present case, it would be against the core principles of fairness that underpin Article 7 to interpret Article 53 § 2 (2) by invoking the principle of lex mitior . The sentenced person is no worse off if he or she continues to be subject to a cumulative sentence. Where a person was sentenced to thirty years, the only consequence as regards other convictions is that in the Slovenian system the other convictions do not enter into consideration (except perhaps where the convicted person becomes eligible for parole before twenty years have elapsed. But we are not called upon to speculate on Slovenian law). Accordingly, having taken into account the legislative history of the 2008 Criminal Code, the absurd result that would be achieved by applying the lex mitior , and the clear intention of the Slovenian legislature, the domestic courts were entitled to conclude that Article 53 § 2 (2) should be interpreted as imposing a maximum sentence of thirty years in this case.

Moreover, there is no evidence in international law to support embracing a wider meaning of lex mitior under the Convention [2] . Lex mitior was incorporated into Draft Article 15 § 1 of the International Covenant on Civil and Political Rights (“the ICCPR”) by a vote of seven to three (with five abstentions) [3] . However, at the time, the French delegate made clear that lex mitior would apply only to remissions of penalty that were in effect at the time of sentencing [4] . It was only later that lex mitior was thought to be applicable to new laws that reduced sentences [5] . Also, a number of countries did not fully accept lex mitior as part of Article 15 § 1 of the ICCPR. For example, the United States expressly reserved the right not to apply lex mitior at all; Italy and Trinidad and Tobago reserved the right not to apply the principle in cases where a final sentence had already been determined; and Germany reserved the right not to apply it in exceptional situations [6] .

An academic study conducted in 2008 concluded that only a limited number of States had fully incorporated lex mitior into their domestic law: approximately fifty States had adopted a version of lex mitior in their national Constitutions and approximately 21 States had expressly provided for it by statute [7] . Thus, whether lex mitior has truly become a part of customary international law is still subject to debate [8] . The principle is not expressly mentioned in the Convention and was deliberately left out of Article 7 at the time the Convention was being drafted [9] . The principle only entered the Court ’ s jurisprudence as a result of the majority decision in Scoppola (no.2). There is no compelling reason under international law to support widening the scope of lex mitior by applying it to the present case (especially given that the case is not about sentencing but about combined sentencing).

Moreover, the case-law of the United Nations Human Rights Committee on the interpretation of lex mitior under Article 15 § 1 supports a narrow interpretation of the principle. In Westerman v. the Netherlands , Com. 682/1986, UNDoc. A/55/40, the Netherlands had retrospectively applied a new Military Code provision (replacing an older Code) concerning the “refusal to obey military orders”. The Human Rights Committee held that because the acts the defendant was charged with were punishable under both the old and new Codes, and the final sentence that was given did not exceed what was permissible under the Code in force at the time the offence was committed , there was no violation of Article 15 § 1. The Committee emphasised (at paragraph 9.2 of the decision) that the final sentence imposed “was not heavier than that applicable at the time of the offence”.

As I understand it, the purpose of lex mitior is as follows: where the penal policy of the State has been changed after a crime has been committed, equality and fairness require that criminals who committed a crime, but are sentenced at a time when the more lenient law applies to others perpetrators, shall receive the same treatment as the latter. (This is a partial or imperfect rule of fairness, since others who were already convicted do not benefit from the change of penal policy.) What matters is that this principle is not about foreseeability and legal certainty, as is the case with the ex post facto prohibition.

The Court ’ s position is very close to this approach:

“Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the commission of the offence ... would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State – and the community it represents – now consider excessive. The Court notes that the obligation to apply, from among several criminal laws, the one whose provisions are the most favourable to the accused is a clarification of the rules on the succession of criminal laws, which is in accord with another essential element of Article 7, namely the foreseeability of penalties” (see Scoppola (no.2), cited above , § 108).

I take it that the reference to foreseeability is to be understood from the perspective of the judge, that is, in the sense of ensuring that the law is applied consistently, and not from the perspective of the criminal, whose legal certainty interests are served by the nulla poena sine lege principle.

In view of the reasons behind lex mitior , I see no grounds for the present extension of the principle to combined sentencing in the specific situation at hand.

4. Article 7 is not applicable: the distinction between “penalty” and “enforcement of a sentence” under Article 7

Even assuming, as the judgment does, that the domestic law would require a reduction of the thirty-year sentence in the event of a combined sentence, either because of a change in the law that occurred after the thirty ‑ year sentence had been handed down – which did not occur in the present case – or because of a new event that occurred after the sentence had been handed down (namely the fact that the applicant asked for a combined sentence, as is the case here [10] ), there is no reason to apply the lex mitior principle under the case-law of the Court when it comes to combined sentences.

This is because the matter does not concern a punishment, which is a precondition for the applicability of Article 7. The Court ’ s case-law has consistently drawn a distinction between measures that constitute a “penalty” and measures that concern only the “execution or enforcement” of a “penalty” [11] . In Kafkaris , cited above, § 142, the Grand Chamber held as follows:

“The wording of Article 7 § 1, second sentence, indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a ‘ criminal offence ’ . As to this end, both the Commission and the Court in their case-law have drawn a distinction between a measure that constitutes in substance a ‘ penalty ’ and a measure that concerns the ‘ execution ’ or ‘ enforcement ’ of the ‘ penalty ’ . In consequence, where the nature and purpose of a measure relates to the remission of a sentence or a change in a regime for early release, this does not form part of the ‘ penalty ’ within the meaning of Article 7. However, in practice, the distinction between the two may not always be clear cut.”

Given that the categorical approach may seem unsatisfactory, in assessing what measures may constitute a penalty Kafkaris requires consideration of the following elements:

(i) the nature and purpose of the measure in question: the present measure serves the purpose of the overall determination of combined sentences, and the element of guilt is absent;

(ii) its characterisation under national law: the measure in question is not about sentencing for a crime – the sentences are already in place, determined (see also UN Human Rights Committee, cited above);

(iii) the procedures involved in the making and implementation of the measure: here we have a procedure initiated at the request of the applicant. The proceedings did not concern criminal charges, and in the quasi ‑ administrative proceedings the general rules governing criminal trials did not apply;

(iv) severity: the fact that the sentence was not reduced does not alter its existing severity.

In view of the auxiliary elements there is nothing that would make the calculation used to consolidate several sentences a “punishment” as defined under the Court ’ s case-law.

In the present case, the purpose of Article 53 is to regulate the procedure of combining multiple sentences into one. Accordingly, Article 53 primarily concerns the “execution” of a penalty. As stated by the Court in Grava v. Italy ( no. 43522/98, 10 July 2003), under such circumstances the relevant procedural statute would not fall within the scope of Article 7 since the procedure itself does not constitute a “penalty”.

In Del Río Prada , after final sentence was handed down, remissions that the applicant had already worked for were no longer deducted from her sentence and a new system was imposed which extended her imprisonment. This measure was considered to be a “penalty” under Article 7. By contrast, the present case concerns neither an extension of sentence nor a redefinition of the scope of the penalty imposed. Unlike the situation that the applicant in Del Río Prada faced, the present applicant would not (according to any calculation) suffer an adverse effect as a result of the domestic courts ’ combining his sentence to thirty years. Article 53 § 2 (2) does not even directly govern the sentence that should be imposed for offences such as murder. It is merely a procedural provision that governs the procedure for combining multiple sentences. In this respect, Article 53 § 2 (2) appears to be purely a provision that regulates the enforcement of the sentence. Accordingly, that Article should not be construed as constituting a “penalty” under the Court ’ s case-law. Thus, the pre-condition for triggering the applicability of Article 7 has not been met.

While this judgment may look like one that concerns a temporary idiosyncrasy of Slovenian law, a passing legislative mistake of limited consequence, it is worthy of the interest of the Grand Chamber as it is about the purpose and meaning of the lex mitior principle; it is also time to refine the Court ’ s concept of punishment for the purposes of Article 7.

[1] The applicant could reasonably foresee that he would be given a severe sentence (if not the maximum sentence) under the law as it stood at the time he committed murder in 2002. However, it does not follow that persons could reasonably foresee that a law would reduce their overall sentence if they were convicted of multiple offences.

[2] In R v. Docherty [2016] UKSC 62 , paragraph 45, the U nited K ingdom Supreme Court further examined the principle of lex mitior as set out by the Grand Chamber in Scoppola (no. 2) . The UK Supreme Court held that the principle does not take on the wider meaning of requiring a Court to examine all the possible intervening rules or practices from the time of the offence to sentencing with a view to finding the most favourable rule to the defendant. The Supreme Court further expressed the view that there was “no injustice to a defendant to be sentenced according … to the law as it existed at the time of his offence ”, but that it was another matter to say “ that he should be sentenced according to a practice which did not obtain when he committed the offence…”.

[3] E/CN.4/SR.159 para graph 94, p. 19, see: http://uvallsc.s3.amazonaws.com/travaux/s3fs-public/E-CN_4-SR_159.pdf?null .

[4] E/CN.4/SR.159 para graph 88, p. 18 .

[5] Haji N. A. Noor Muhammad, “ Due Process of Law for Persons Accused of a Crime ” , in The International Bill of Rights: The Covenant on Civil and Political Rights , Louis Henkin ( ed. ) , Columbia Univ ersity Press 1981, p.164, citing 15 GAOR Annexes, UN Doc. A/4397

para graph 97 (1960). See also Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law , Ca mbridge University Press 2008, p.185 .

[6] Reservations to the ICCPR by United States of America, s ee https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&clang=_en .

[7] Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law , Cambridge Univ ersity Pres s 2008, Appendix A.

[8] I bi d . , p.356 .

[9] The travaux préparatoires of Article 7 § 1 (at page 7, item (5)).

[10] It is of importance for the applicability of lex mitior that there is no new law applicable here, only a new request by the applicant, who triggered the situation.  There is no subsequent more lenient law, only a new situation created by the applicant.

[11] As this case demonstrates, this dichotomy is unfortunate: a combined sentence, or more correctly the adding-up of existing sentences, constitutes strictly speaking neither execution nor punishment. But what matters is not what it is, but the fact that it is not a punishment. It is about how to count existing punishments: it is a concession (a privilege).