PARTLY DISSENTING OPINION OF JUDGE KALAYDJIEVA

I fully agree with the view of the majority that, in breach of Article 7 of the Convention, the law did not make it possible for the applicant to know which of the two punishment brackets, which were equally applicable but different in terms of their severity, would apply to his criminal activity.

According to my understanding, the applicant’s complaints were not limited to the fact that the law concerning his punishment was not accessible and foreseeable to him. In fact he complained that, unlike himself, the other party to the proceedings – the Attorney General – could not only foresee, but also predetermine the decision as to the appropriate punishment brackets by choosing the court competent to examine the accusations.

Indeed, the Court agreed that “the domestic courts were bound by the Attorney General’s decision as to which court would have been competent to try the accused” (see paragraph 43 of the judgment) – a situation which may be described as a privileged position of one of the parties to define the competent court in accordance with its own preference rather than with the regulations laid down by the law or with the general principle that courts should decide on their own competence. More importantly, this Court shared the national courts’ view that in choosing the competent court in accordance with his own preference the Attorney General in fact had the power to limit the courts’ discretion, in determining the appropriate punishment, to the brackets of varying severity indicated by the prosecution in the absence of clear criteria or guidelines. Thus – unlike this Court – the national courts were not free to act as “the masters of the characterisation to be given in law to the facts of the case” and were not competent to reclassify the impugned act as one punishable by a more lenient sentence, “despite any concerns the judge might have had as to the use of the prosecutor’s discretion” (see paragraph 43), and with the result that “such decisions were at times unpredictable” (see paragraph 42).

While I agree that – like every court – this Court is “the master of the characterisation to be given in law to the facts of the case” , I am not convinced that this characterisation was appropriate to the facts and the scope of the actual complaints in this case. In my view these go far beyond Article 7 and raise important issues of equality of the parties in criminal proceedings and the potential infringement of the independence and scope of the courts’ competence, as a result of the statutory privilege of one of those parties, beyond the pre-trial stage of criminal proceedings, to interfere with the court’s competence to determine the outcome of the proceedings. I regret the majority’s view that “having regard to the finding relating to Article 7 it is not necessary to examine whether there has also been a violation of Article 6” as initially complained.

PARTLY DISSENTING OPINION OF JUDGE QUINTANO

1. I do not subscribe to either the reasoning or the conclusions of the majority as to the violation of Article 7 of the Convention in the present case, for the following reasons:

2. This case is unlike any of the previous cases which have been decided by this Court under Article 7 of the Convention. In fact, the eleven cases cited in this judgment only reflect the general criteria established by the case-law, and the respective facts are not similar to the present case in any way.

3. In paragraph 41 of the judgment the Court observes that the law did not make it possible for the applicant to know which of the two punishment brackets would apply to him. It refers to paragraph 31, according to which “[t]he Government highlighted that the Attorney General’s decision based on his discretion was exercised at the pre-trial stage and therefore upon the charges being issued the applicant became aware of the punishment applicable .” The part in italics may give the impression that a person only becomes aware of the penalty that he may face just before he is arraigned or summoned to appear in court. But this is not so at all. Just before the trial begins the Attorney General signs an order indicating which court – the Court of Magistrates or the Criminal Court – should hear the case. However, this does not mean that a person cannot foresee which court is going to deal with the charges laid against him before the order is issued. He can do so in four ways: (a) by considering the quantity of drugs in his possession at the time of his arrest, (b) by seeking legal advice, (c) by considering the case-law of the Court of Magistrates or that of the Criminal Court, or (d) by using all these three methods together.

4. In paragraphs 34 and 35 of the judgment the Court twice refers to the principle that the offences and penalties must be clearly defined by law. This clarity of the law must be such as to enable the individual to know from the wording of the provision of the law itself and “if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable and what penalty will be imposed for the act and/ or omission committed.” The Court finds the wording of the law to be sufficiently clear as to its content (paragraph 40) but then considers that the law “did not make it possible for the applicant to know which of the two punishment brackets would apply to him.”

5. In this case the applicant was charged in 2003 with having been in possession of 953 ecstasy pills in December 2001. By 2001 the case-law of the Court of Magistrates and that of the Criminal Court was abundant enough for the applicant to be aware, with or without reading the law, that being caught in possession of 953 pills would mean proceedings in the Criminal Court. It was already clear that the Court of Magistrates was deciding cases involving much lesser quantities of drugs. It can definitely be said that by 2001 such a quantity of ecstasy would automatically mean the higher brackets indicated in the law. Furthermore, the applicant could have taken legal advice before being caught in possession of 953 ecstasy pills as to the penalty he was risking if he went on with the crime. Any lawyer practising in the field of drugs offences would have indicated that such a quantity of ecstasy pills would lead to a penalty of between four years and life imprisonment.

6. Drugs offences and punishments are widely reported in all the media and hence it was foreseeable to the applicant what the consequences would be, both at the time of the crime and at the time of arraignment. Two cases of the European Court of Human Rights reveal how the Court has recognised foreseeability as being possible in more difficult circumstances. In C.R. v. the United Kingdom (2 November 1995, § 34, Series A no. 335-C), the Court held that “judicial recognition of the absence of immunity had become a reasonably foreseeable development of the law”. And in Achour v. France ([GC], no. 67335/01, ECHR 2006-IV), which dealt with the extension of the period within which a convicted person could be deemed to be a recidivist, the Court found that it had been foreseeable that the applicant be regarded as a recidivist at the material time with the consequences this had for the length of his sentence.

7. In paragraph 37, the Court acknowledges that “it is a firmly established part of the legal tradition of the States party to the Convention that case-law, as one of the sources of the law, necessarily contributes to the gradual development of the criminal law.” In the applicant’s country the case-law is available as soon as a judgment is pronounced. And as the number of drugs cases was already substantial as far back as 2001, the applicant could easily have known about the different types of decisions of the two courts and could have foreseen what the penalty might be.

8. As to the appropriate legal advice referred to in paragraph 38, there is absolutely no doubt that this was available to the applicant.

9. In paragraph 42 of the judgment, the Court finds that “[m]ore generally, the domestic case-law presented to this Court seems to indicate that such decisions were at times unpredictable.” The observations submitted to the Court cited only one reference – that of G. and M. No further examples of “unpredictability” were given. Given the scarcity of details on the cases, and with one case having been decided as far back as 1998, it is difficult to assess how “unpredictable” the decision of the Attorney General was. But even with this drawback and even if one were simply to concede that there was some form of inconsistency, one case is simply not enough to amount to consistent unpredictability [1] . Hence, I find it impossible to go along with the Court’s reasoning as reflected in the last sentence of paragraph 42. No legal adviser, either before or after the commission of the crime or at the time of arraignment, would have taken the risk of assuring the applicant that with 953 ecstasy pills his case would be decided by the Court of Magistrates and thus attract the lesser penalty. Given the case-law record, this type of legal advice would have been and still is inconceivable.

10. In paragraph 43, the Court refers to that part of the decision of the Constitutional judgment of 12 February 2010 in which the Constitutional Court considered “that it would be desirable, for the sake of fairness and transparency, that criteria to be used by the public prosecutor should be established.” This Court goes on to find that “the law did not determine with any degree of precision the circumstances in which a particular punishment bracket applied.”

11. Given that the Court had already established that the word “law” includes the case-law of a State, it is difficult to accept the conclusion that there is no precision in the law. The case-law clearly reflects the parameters set by the Attorney General – in particular, small quantities of drugs, the circumstances in which the drugs were found, whether the facts reveal evidence of the crime of conspiracy, and the readiness of the accused to file an early guilty plea and to cooperate with the police and reveal drug sources. According to a raft of case-law, all these have a bearing on the Attorney General’s final decision. The case-law reveals that only in some instances, where the quantity of drugs involved was substantial, the Attorney General ordered that the Court of Magistrates should be the competent court to try the case. In any case, a crime has to be very loosely defined before the European Court of Human Rights will find a violation of this provision (see Kokkinakis vs Greece , 25 May 1993, § 52, Series A no. 260-A).

12. As to the reference made to the recommendations of the Constitutional Court, it should be quite clear that suggestions made for refinements in the law do not necessarily mean a violation of Article 7. Had it been so, the Constitutional Court would have found a violation (of any relevant Convention Article), whereas it found no violation at all. A law may need fine-tuning but it does not logically follow that an applicant’s rights have been violated just because these refinements are not in place.

13. In paragraph 43, the Court further finds that (a) an insoluble problem was posed by fixing different minimum penalties, and (b) that the Attorney General had an unfettered discretion and that the decision was inevitably subjective. As to point (a) the Criminal Code itself contains provisions which lay down different maxima and minima within the same provision. Moreover, and this reflection applies to both point (a) and point (b), the discretion of the Attorney General is not as unfettered as it seems. A Constitutional Court decision of 16 March 2012 held as follows:

“Whenever challenged to explain his decision, the Attorney General has to explain and justify the decision he has taken and then it is up to the [ordinary] court to see whether that order is in line with previous orders and that no one has been discriminated against; otherwise the decision may be held ‘ ultra vires’ .”

14. In the same paragraph 43, the Court refers to the inapplicability of Article 21 of the Criminal Code, which allows the court to go below the minimum punishment. First of all, this Article of the Criminal Code is hardly ever used as it has been supplanted by probation orders, conditional or unconditional discharges and suspended prison sentences. Secondly, the inapplicability of this Article applies to both the Court of Magistrates and to the Criminal Court. However, in practice, the Court of Magistrates and the Criminal Court can still go below the minimum established by Chapter 31 in certain circumstances. Hence, in cases where the quantity of drugs is not too high, and the accused has filed an early guilty plea and has benefited from the reduction of the penalty by one or two degrees contemplated under Article 29 for persons who help the police to trace the sources of supply, it is possible to go below the six months’ tariff. This has happened repeatedly in many cases decided by the Court of Magistrates, whether the person was a minor or not. In the case of minors, it is not the first time that the penalty was reduced to just a fine ( multa ). In my view, there is nothing to stop the Criminal Court from going below the minimum of four years if the evidence reveals circumstances identical to those which may apply before the Court of Magistrates.

15. For all the above reasons I find that the applicant’s conviction is not in any way inconsistent with the provisions of Article 7 of the Convention and therefore I am of the view that there has been no violation of that Article.

1. In cases which appear to be similar, one has to check very carefully whether the cases are in fact “similar” or “identical” even if some of the facts apply to both cases. The quantity of drugs involved is an important element but, as a rule, other factors may be involved.