CONCURRNG OPINION OF JUDGE LEMMENS

(Translation)

1. Like my colleagues, I concluded that there had been no violation of Article 7 § 1 of the Convention in the present case. However, I arrived at that conclusion by means of slightly different reasoning.

2. I think it is worth reiterating briefly the key facts of the case. The applicant was convicted of a series of acts committed between 2000 and 8 February 2006 (see paragraph 6). Those acts could have been classified as violence against an individual or group of individuals under Article 197a of the Criminal Code and assault occasioning bodily harm under Article 221 of the same Code (these provisions were applicable throughout the whole of the period in question), but also as abusing a person living under the same roof within the meaning of Article 215a of the Code. The last of these provisions, which entered into force on 1 June 2004, was applicable only for part of the period in issue.

The domestic courts took the view that the acts in question amounted to a “continuing offence” within the meaning of Article 89 § 3 of the Criminal Code. They considered that the offence came within the ambit of the law in force when the last criminal act was committed. Accordingly, the Brno Municipal Court, followed by the Brno Regional Court, found the applicant guilty of abusing a person living under the same roof within the meaning of Article 215a of the Criminal Code and imposed the sentence provided for by Article 215a § 2(b). That sentence was more severe than those provided for by Articles 197a and 221 of the Criminal Code.

It should be observed that the Supreme Court explicitly found that the new law, that is to say, Article 215a §§ 1 and 2(b) of the Criminal Code, applied to all the acts making up the continuing offence, including those committed before 1 June 2004, since the latter had been punishable under the old provisions, namely Articles 197a and 221 of the Criminal Code (see paragraph 9).

3. My colleagues examined the applicant’s complaint chiefly from the standpoint of the general principle that only the law can define a crime and prescribe a penalty. They sought to ascertain whether the manner in which the courts concerned had interpreted Article 89 § 3 of the Criminal Code in the instant case had been reasonably foreseeable.

In my humble opinion, that is not the problematic issue. The applicant complained of what he saw as the retrospective application of Article 215a of the Criminal Code (see paragraph 17). Hence, in my view, the main focus of the Court’s examination should have been the prohibition of retrospective application of the criminal law to the detriment of the accused, which is one specific aspect of the general principle outlined above. The fact that the domestic courts had found the above-mentioned statutory provision to be applicable on the basis of a particular interpretation of Article 89 § 3 of the Criminal Code was only a secondary aspect of the case.

4. In principle, the retrospective application of a new criminal law which is harsher than the previous law is prohibited by Article 7 § 1 of the Convention.

This rule does not preclude the application of the new law to a genuine “continuing offence”, that is to say, an offence characterised by the existence of an ongoing situation in breach of the law. If the continuing offence came within the ambit of the old law when it began, and continued under the new law, it is the latter which applies, even if it is harsher than the previous law. It is even debatable whether such a case really constitutes retrospective application of the new law.

However, the offence at issue in the present case cannot be characterised as a “continuing offence” in the sense referred to above. In reality, it was what one might describe as a “continued” offence, in that it comprised the repetition of a number of instantaneous offences linked by their identical nature and purpose and committed within a relatively short space of time (see Article 89 § 3 of the Criminal Code). Applying the new law to all the acts constituting a “continuing” offence in this second sense amounts to partly retrospective application of the law in question since, at the time the first criminal acts were committed, the new law had not yet entered into force.

It seems to me that my colleagues judged the application of the new law to be permissible for the sole reason that the applicant could have foreseen that by continuing his conduct after 1 June 2004 he ran the risk of being convicted of a continuing offence and of receiving the sentence provided for by the law in force when the last criminal act was committed (see paragraph 38).

This reason does not appear to me to be sufficient. Besides, the domestic courts took a stricter approach, since they examined whether the acts committed before 1 June 2004 fell within the ambit of the criminal law in force at the time they were committed (in this case Articles 197a and 221 of the Criminal Code). While it is true that my colleagues referred to the national authorities’ finding in that regard (see paragraph 37), they do not appear to have made it a condition of their acceptance of the retrospective application of the new law.

For my part, I believe that the test to be applied is even stricter than that applied by the domestic courts. In my view, it was not sufficient for the acts committed before 1 June 2004 to have been punishable under any law in force at the time (a necessary condition according to the judgment in Veeber v. Estonia (no. 2) , no. 45771/99, § 38, ECHR 2003-I). To my mind those acts also had to constitute offences under the new law, even though it had not yet been in force at the time they were committed. In concrete terms, for the application of Article 215a §§ 1 and 2(b) of the Criminal Code to the acts committed before 1 June 2004 to be compatible with Article 7 § 1 of the Convention, it was not enough for the acts in question to be punishable under Articles 197a and 221 of the Criminal Code; they also had to qualify as abusing a person living under the same roof within the meaning of Article 215a §§ 1 and 2(b) of the Criminal Code.

It seems to me that neither the domestic courts nor the Court expressly sought to determine whether this last condition had been met. We can nevertheless conclude, in view of the description of the various acts of violence in issue in the present case, that they were all capable of being classified as abusing a person living under the same roof within the meaning of Article 215a §§ 1 and 2(b) of the Criminal Code.

It is for that reason that I subscribed to my colleagues’ conclusion that Article 7 § 1 of the Convention had not been breached in this case.