CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 27 janvier 2015

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THE CZECH REPUBLIC   (Application no. 59552/08)                   JUDGMENT       STRASBOURG     27 January 2015         This judgment is final. In the case of Rohlena v. the Czech Republic, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Dean Spielmann, President ,   Josep Casadevall,   Guido Raimondi,   Ineta Ziemele,   Isabelle Berro,   Elisabeth Steiner,   Päivi Hirvelä,   Mirjana Lazarova Trajkovska,   Işıl Karakaş,   Kristina Pardalos,   Paulo Pinto de Albuquerque,   Aleš Pejchal,   Valeriu Griţco,   Faris Vehabović,   Dmitry Dedov,   Egidijus Kūris,   Robert Spano, judges , and Michael O’Boyle, Deputy Registrar , Having deliberated in private on 9 April 2014 and 19 November 2014, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 59552/08) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Czech national, Mr Petr Rohlena (“the applicant”), on 4   December 2008. 2.     The applicant was represented by Mr J. Kružík, a lawyer practising in Brno. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, of the Ministry of Justice. 3.     Relying on Article 7 of the Convention, the applicant alleged in particular that, in convicting him of a continuous criminal offence, the domestic courts had applied the criminal law retroactively, to his detriment. 4.     The application was allocated to the Fifth Section of the Court (Rule   52 § 1 of the Rules of Court). On 14 November 2011 the President of the Fifth Section decided to give notice of the application to the Government. On 18 April 2013 a Chamber of that Section, composed of Mark Villiger, President, Angelika Nuβberger, Ganna Yudkivska, André Potocki, Paul Lemmens, Helena Jäderblom, Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, gave judgment. They unanimously declared the complaint under Article 7 of the Convention admissible and the remainder of the application inadmissible, and held that there had been no violation of Article 7. Judge Lemmens expressed a separate concurring opinion which was annexed to the judgment. 5.     On 9 September 2013, following a request by the applicant dated 11   July 2013, a panel of the Grand Chamber decided to refer the case to the Grand Chamber under Article 43 of the Convention. 6.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 7.     On 16 January 2014 the President of the Court decided to cancel the hearing scheduled in the case and to pursue the written procedure. 8.     The applicant and the Government each filed further written observations on the merits (Rule 59 § 1) and replied to the specific questions put to them by the Grand Chamber. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicant was born in 1966 and lives in Brno. 10 .     On 29 May 2006 the applicant was formally indicted by the Brno municipal prosecutor for having, at least between 2000 and 8   February 2006, repeatedly abused his wife both physically and mentally while he was drunk. He was accused of having subjected her to verbal abuse, hit her on the head with his hand and fist, slapped her, held her by the throat, tried to strangle her, thrown her against the furniture or onto the ground, pushed her down stairs and kicked her. He was further accused of having hit the children, gambled away the household’s money on gaming machines and smashed the crockery. As a result, his wife had sustained haematomas, bruising and a fractured nose and had been obliged to seek medical assistance on that account on 26 June 2000, 18 July 2003 and 8 February 2006 following assaults committed on 24 June 2000, 17 July 2003 and 8   February 2006 respectively. The applicant had allegedly sought to undermine his wife psychologically in order to control her. According to the prosecutor, the applicant had thus committed the “continuing” criminal offence (trvající trestný čin) of abusing a person living under the same roof within the meaning of Article 215a §§ 1 and 2 (b) of the Criminal Code, given that his conduct prior to the introduction of that offence on 1 June 2004 had amounted to the offence of 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 Code. 11.     On 18 April 2007 the Brno Municipal Court found the applicant guilty of the offence of abusing a person living under the same roof, committed at least between 2000 and 8 February 2006, as described in the bill of indictment, which also referred to the fact that the abuse had occurred repeatedly. It sentenced him to a suspended term of two and a half years’ imprisonment and placed him on probation for five years. The applicant was also placed under supervision and ordered to undergo treatment for alcohol dependency. The court based its decision on the statements given by the applicant, the victim (his wife) and several witnesses, including the couple’s two children – who reported, among other incidents, ten instances of the applicant verbally insulting his wife, four instances of the applicant grabbing his wife by the arms and strangling her, and verbal and/or physical assaults committed by the applicant on his wife at monthly intervals – and on documentary evidence and expert reports. It also took into account the fact that the applicant had confessed to quarrels and physical violence in his relationship with his wife; he admitted in particular that he had sometimes slapped his wife or hit her with his fist. The court adopted the classification of the offence as abuse of a person living under the same roof within the meaning of Article 215a §§ 1 and 2   (b) of the Criminal Code as in force since 1 June 2004, taking the view that this classification also extended to the acts committed by the applicant prior to that date since they had been punishable at the material time and amounted at least to the offence of violence against an individual or group of individuals under Article 197a of the Criminal Code. Lastly, the court considered that, owing to the duration of the conduct in question, the offence committed in the present case presented a relatively high degree of danger which justified a sentence ranging from two to eight years’ imprisonment under paragraph 2 of Article 215a of the Criminal Code. Taking into consideration the extenuating circumstances (in particular the fact that the applicant had confessed and that he had no previous convictions), it imposed a suspended sentence situated at the lower end of the range. 12.     On 6 September 2007 the Brno Regional Court dismissed an appeal by the applicant in which he contested the facts as established by the Municipal Court and the unilateral assessment of the evidence. The Regional Court found no defects in the previous proceedings and considered that the classification of the applicant’s conduct was in conformity with the provisions of the Criminal Code. 13 .     On 21 February 2008 the Supreme Court dismissed as manifestly ill ‑ founded an appeal on points of law lodged by the applicant in which he complained that the trial court had applied Article 215a of the Criminal Code even to his conduct prior to 1 June 2004, when the offence of abuse had not yet existed in domestic law. On this point the Supreme Court noted, referring to its ruling Tzn 12/93 of 8 December 1993, that where there was, as in the case at hand, a “continuation of the criminal offence” ( pokračování v trestném činu ), which was considered to constitute a single act, its classification in criminal law had to be assessed under the law in force at the time of completion of the last occurrence of the offence. That law therefore also applied to the earlier acts, provided that these would have amounted to criminal conduct under the previous law. In the instant case the Supreme Court considered that the applicant’s conduct prior to the amendment of the Criminal Code on 1 June 2004 had amounted at least to an offence punishable under Article 197a or Article 221 § 1 of the Criminal Code. After examining the file it also concluded that the accused’s actions as described in the operative part of the first-instance court’s judgment disclosed all the legal elements of the offence of abusing a person living under the same roof within the meaning of Article 215a §§ 1 and 2 (b) of the Criminal Code. Concerning the continuation of the offence, the Supreme Court noted that the abuse itself amounted to ill-treatment characterised by a certain duration. For the offence to be regarded as having continued over a long period of time it had to have lasted for some months. As the applicant had perpetrated the offence in question at least from 2000 until 8 February 2006, that is, over a period of several years, his conduct certainly disclosed the material element of continuation of the offence of abuse under Article   215a § 2 (b) of the Criminal Code. 14.     On 10 June 2008 the Constitutional Court dismissed as manifestly ill-founded a constitutional appeal lodged by the applicant in which he complained that the proceedings had been unfair and that the Criminal Code had been applied retroactively, to his detriment. Referring to the ruling of the Supreme Court and to its relevant case-law, the Constitutional Court held that the decisions given by the courts in the present case had been logical and coherent and had not had any retroactive effect prohibited by the Constitution. 15.     As the applicant committed another offence while on probation and did not undergo any treatment for his alcohol dependency, he was required to serve the prison sentence imposed by the judgment of 18 April 2007. He began serving his prison sentence on 3 January 2011. According to the Government, he was granted conditional release on 17 May 2012. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Criminal Code (Law no. 140/1961, as in force until 31 December 2009) 16.     Pursuant to Article 16 § 1, the criminal nature of an act was assessed under the law in force at the time the act was committed. A subsequent law had to be applied if it was more favourable to the offender. 17.     Under Article 34k, when imposing a sentence the court had to consider as an aggravating circumstance in particular the fact that the offender had committed several offences. 18.     Article 35 § 1 stated that, when a court sentenced a perpetrator for two or more criminal offences, a concurrent sentence ( úhrnný trest ) was to be imposed on the basis of the legal provision concerning the most serious of the offences. Where the minimum prison terms differed, the longest one constituted the minimum term for the concurrent sentence. 19.     Under Article 67 § 1 (d), criminal liability for an offence punishable by a maximum sentence of less than three years became statute-barred on expiry of the limitation period of three years. Pursuant to Article 67 §§ 3 and 4, this period was interrupted and a new period began running (a) when the offender was charged with the offence in question and when subsequent measures were taken with a view to his criminal prosecution (such as a prosecutor’s indictment, court summons, and so forth), or (b) if, during that period, the offender committed a further crime punishable by the same or a more severe sentence. 20 .     Under Article 89 § 3, which was introduced into the Criminal Code by Law no. 290/1993 which came into force on 1 January 1994, the continuation of a criminal offence ( pokračování v trestném činu ) was to be understood as consisting of individual acts ( jednotlivé dílčí útoky ) which were driven by the same purpose, comprised the elements of the same offence and were linked by virtue of being carried out in an identical or similar manner, occurring close together in time and pursuing the same object. 21.     Pursuant to Article 197a, a person who threatened to kill another person or to cause him or her bodily harm or other serious harm, in a manner giving reasonable grounds for fear, was liable to a term of imprisonment of up to one year or to a fine. 22.     Under paragraph 1 of Article 215a, introduced on 1 June 2004, anyone who abused a relative or other person living under the same roof was liable to a sentence of up to three years’ imprisonment. According to paragraph 2, the perpetrator of such an offence faced between two and eight years’ imprisonment if (a) he or she acted in a particularly brutal manner or committed the offence against several persons, or (b) he or she continued the conduct in question over a lengthy period. The relevant explanatory report stated that the purpose of introducing the above provision had been to address the lack of specific legislation in this area, since the general criminal-law provisions that were applicable allowed prosecution of only the most serious acts of physical domestic violence (for example, the offences set forth in Articles 197a or 221 which, according to judicial practice, had to result in at least seven days’ incapacity to work, which was rarely the case in situations of domestic violence). The new provision required neither physical violence nor any consequences for the victim’s health. It also pursued the aim of overcoming the difficulties faced by the prosecuting authorities in view of the specific features of domestic violence. It was noted that the term “abuse/ill-treatment” was not new since there was already an offence of abuse/ill-treatment of a person in one’s care. This was interpreted to mean persistent ill-treatment involving a particularly high degree of cruelty and impassivity and which the victim perceived as a serious wrong. It was not necessarily a systematic course of conduct or conduct spanning a lengthy period. 23.     Under Article 221 § 1, the offence of assault with intent to cause bodily harm was punishable by a prison term of up to two years. Paragraph   2 provided for a prison term ranging from one to five years where, among other factors, the perpetrator caused serious bodily harm to the victim; under paragraph 3, where the perpetrator’s conduct resulted in death, he or she was liable to a prison sentence of between three and eight years. B.     Legal literature and case-law of the Supreme Court 24 .     According to the Czech legal literature, the continuation of a criminal offence, that is, a “continuous” criminal offence ( pokračující trestný čin ), was considered to constitute a single act; when one of the elements referred to in Article 89 § 3 of the Criminal Code was absent, the offence in question was characterised as “repeated”. 25 .     As established by the settled and long-standing case-law of the Supreme Court (decisions nos. 3 Tz 155/2000, 3 Tdo 1115/2003, 6 Tdo 1314/2003, 11 Tdo 272/2007, 6 Tdo 181/2012, 11 Tdo 258/2012 and 6 Tdo 1553/2012), a continuous offence was deemed to have come to an end on completion of the last occurrence of the offence. The Government additionally referred to the decisions published in the Reports of Judicial Decisions and Opinions under nos. 103/1953, 44/1970 and 7/1994 and to Supreme Court decision no. 5 Tdo 593/2005. Thus, when a continuous offence extended over a period of time during which the applicable legislation changed, it was considered to be covered by the new legislation provided that at least some of the punishable acts had been committed after the entry into force of the new law and that the previous acts had constituted a criminal offence at the time they were committed (see Supreme Court decision no. Tzn 12/93), even if that offence carried a lighter sentence. 26 .     By judgment no. 11 Tdo 272/2007 of 27 August 2007 in a factually similar case, the Supreme Court quashed the lower courts’ decisions by which the person concerned had been found guilty of two criminal offences (violence against an individual under Article 197a of the Criminal Code committed before 1 June 2004, and abuse of a person living under the same roof committed after that date) and had imposed a concurrent sentence of two years and six months. The Supreme Court held that this interpretation by the courts, distinguishing between acts committed before and after the entry into force of Article 215a of the Criminal Code, was incorrect since the situation amounted to a continuous offence; the court nevertheless upheld the sentence. It stated in particular: “The question is whether a continuous criminal offence can encompass conduct the individual occurrences of which were perpetrated partly before and partly after the entry into force of the applicable criminal rules, without infringing the provisions of Article 16 § 1 of the Criminal Code. ... In the case of the continuation of an offence which, from a material point of view, is understood as a single act [ skutek ], the time of its commission is considered to be that of completion of the last occurrence of the offence (which forms a unity with the previous ones). It follows that the continuation of the offence is to be examined under the new law, which may be stricter, as in force at the time when the offence was completed, even if part of the offence (irrespective of its extent) falls within the temporal scope of the older criminal provisions which are more favourable to the offender. This conclusion is in line with the existing case-law, according to which continuous offences are considered to have been committed under a new (later) law provided that at least part of the offence (that is to say, individual acts) was committed after this new law came into force. Such offences are deemed to have been committed in their entirety under the new, later law ... provided that the conduct in question was also punishable under the previous law.” 27 .     With regard to the application of Article 89 § 3 of the Criminal Code specifically to conduct covered by Articles 197a, 215a and 221 of the Criminal Code or comparable conduct, the Government also referred to Supreme Court decisions nos. 3 Tdo 1431/2006 of 10 January 2007, 6   Tdo 548/2008 of 28 May 2008 and 7 Tdo 415/2013 of 21 May 2013. They pointed out in particular that in those decisions the Supreme Court had confirmed that the notion of a close temporal connection had not been defined precisely and that each particular case therefore required a comprehensive assessment of all its circumstances and of the relevant formal criteria set out in Article 89 § 3. Moreover, the constituent elements of a crime could be made out in various ways; hence, the manner of execution of an offence did not always have to be identical as long as the act was directed against the same protected interest. III.     RELEVANT COMPARATIVE AND INTERNATIONAL LAW A.     Terminology 28 .     It transpires from the legal systems of the Contracting States that there is a need to distinguish between two situations, the second of which is in issue in the present case: (a)     a “continuing” criminal offence ( trvající trestný čin, Dauerdelikt, infraction continue, reato permanente ), defined as an act (or omission) which has to last over a certain period of time – such as the act of assisting and giving shelter to members of an illegal organisation, dealt with by the Court in Ecer and Zeyrek v. Turkey (nos. 29295/95 and 29363/95, ECHR 2001 ‑ II); and (b)     a “continuous” criminal offence ( pokračující trestný čin, fortgesetzte Handlung, infraction continuée, reato continuato ), defined as an offence consisting of several acts all of which contain the elements of the same (or similar) offence committed over a certain period of time – such as the intentional, continuous and large-scale concealment of taxable amounts that was in issue in Veeber v. Estonia (no. 2) (no. 45771/99, ECHR 2003 ‑ I). 29.     Moreover, several types of sentence exist in the Contracting States when more than one offence is committed: (a)     a consecutive or cumulative sentence ( peine cumulée ou peines consécutives ), where a separate sentence is imposed in respect of each offence committed and all of these sentences are added up or served one after the other; (b)     a concurrent sentence ( úhrnný trest, peine confondue ou peines simultanées ), where the offender is given the heaviest penalty in accordance with the legal provision concerning the most serious of the offences, or where he or she is given several sentences which are to be served simultaneously; (c)     an aggregate, consolidated or overall sentence ( souhrnný trest, peine globale ou peine d’ensemble ), which is calculated according to different methods depending on whether the sentence is imposed for offences committed simultaneously or consecutively or whether it encompasses other penalties imposed previously; it fluctuates between the sum of all the individual penalties and the heaviest one. B.     Comparative law 30 .     The notion of a continuous criminal offence as understood in the present case was introduced into European law in the Middle Ages with a view to softening the hard sentencing rule quod criminae tot poenae (in other words, material accumulation of all penalties) under Roman law. Two different approaches were developed by scholars and legislatures, based on a subjective and an objective view of the notion of a continuous criminal offence. According to the subjective view, which existed, for instance, in Italy (see, for example, Article 81 of the 1930 Italian Criminal Code), a continuous criminal offence was a group of acts united by a single intention, by one single criminal plan. According to the objective view, developed mainly in Germany (see, for example, Article 110 of the 1813 Bavarian Criminal Code), a continuous criminal offence was based on the repeated intention of the offender to attack the same or similar object or legally protected interest ( Rechtsgut ). Moreover, the fact that the repetition of the criminal acts and of the criminal intention was facilitated by the material circumstances – involving the offender, the close temporal connection and the identity of the legally protected interest affected – was seen as justifying the imposition of a lighter penalty on the offender. This objective perspective gained support all over Europe, with some countries incorporating it in their legislation. However, in order to avoid excessive leniency towards repeat offenders, certain legislatures restricted the application of this concept to specific categories of crimes. 31 .     The existence of a European tradition of a continuous criminal offence, understood in an objective sense, is confirmed by the research undertaken by the Court in relation to all forty-seven Council of Europe member States. Indeed, the vast majority of them have introduced the notion of a continuous criminal offence into their legal systems, either by means of specific legal provisions or via the legal literature and/or judicial practice. 32 .     On the basis of this comparative survey, the Contracting States can be divided into three different groups: (a)     thirty member States where the concept of a continuous criminal offence is enshrined in law: Andorra (Article 59 of the Criminal Code), Armenia (Article 21 § 2 of the Criminal Code), Belgium (Article 65 § 1 of the Criminal Code), Bosnia and Herzegovina (Article 54 § 2 of the Criminal Code), Bulgaria (Article 26 of the Criminal Code), Croatia (Article 52 of the Criminal Code), the Czech Republic (Article 89 § 3 of the Criminal Code), the former Yugoslav Republic of Macedonia (Article 45 of the Criminal Code), Georgia (Article 14 of the Criminal Code), Greece (Article 98 § 1 of the Criminal Code), Hungary (Article 6 § 2 of the Criminal Code), Italy (Article 81 § 2 of the Criminal Code, referring to a continuous offence stricto sensu ), Latvia (Article 23 of the Criminal Code), Malta (Article 18 of the Criminal Code), the Republic of Moldova (Article 29 of the Criminal Code), Montenegro (Article 49 of the Criminal Code), the Netherlands (Article 56 of the Criminal Code), Norway (Article 219 of the Criminal Code, specifically concerning domestic violence), Poland (Article 12 of the Criminal Code), Portugal (Article 30 § 2 of the Criminal Code), Romania (Article 35 of the new Criminal Code), San Marino (Article 50 of the Criminal Code), Serbia (Article 61 of the Criminal Code), Slovakia (Article   122 § 10 of the Criminal Code), Slovenia (Article 54 § 1 of the Criminal Code), Spain (Article 74 of the Criminal Code), Sweden (Article   4a of Chapter 4 of the Criminal Code), Turkey (Article 43 of the Criminal Code), Ukraine (Article 32 of the Criminal Code) and the United Kingdom (Rule 14.2(2) of the Criminal Procedure Rules 2013); (b)     fourteen member States where the concept of a continuous criminal offence has been developed by legal theory and practice: Albania, Austria, Azerbaijan, Denmark, Estonia, France, Germany, Iceland, Liechtenstein, Lithuania, Luxembourg, Monaco, Russia and Switzerland; (c)     three member States which do not report the existence either in the law or in legal theory of the notion of a continuous criminal offence as understood in the present case: Cyprus, Finland and Ireland. 33 .     The comparative-law material available to the Court concerning the existence of a concept of a continuous criminal offence (see paragraphs   31 ‑ 32 above) shows a high degree of convergence between the domestic legal systems of the Council of Europe member States in this particular area. There appears indeed to be a broad consensus arising out of a long European tradition (see paragraph 30 above) with regard to the following features of a continuous criminal offence, which include both objective ( actus reus ) and subjective ( mens rea ) elements testifying to the legal unity of the acts concerned: (a)     the perpetrator commits a number of identical, similar or different criminal acts against the same legally protected interest ( Rechtsgut, bien juridique, bene giuridico ); in addition, it is often required that the identity of the perpetrator and of the victim be the same on each occasion; (b)     there is at least a similarity in the manner of execution of the individual acts ( modus operandi ), or there are other material circumstances connecting them which constitute a whole ( actus reus ); (c)     there is a temporal connection between the different individual acts, which is to be assessed in the particular circumstances of each case; (d)     there is the same, repeated criminal intent or purpose ( mens rea ) for all the individual acts, although they do not all have to be planned ab initio ; (e)     the individual acts comprise, either explicitly or implicitly, the constituent elements of the criminal offence(s). 34.     There is also agreement on the principle that the law in force at the time of the cessation of the continuous criminal activity is applicable to the facts which occurred prior to its entry into force, provided that these facts satisfy the conditions of the new law, and in most countries also of the previous law. This also applies, in the majority of member States, when the new law is more severe since the perpetrator is presumed to have tacitly agreed to a harsher sentence by continuing his unlawful conduct after the change in the law. 35.     Moreover, in all member States a single penalty is imposed on the perpetrator of the continuous criminal offence. When the individual acts comprising a continuous criminal offence are covered by a number of different provisions, the provision laying down the most severe penalty will apply. 36.     Finally, the penalty imposed for a continuous criminal offence is invariably more lenient than the cumulative, consecutive or concurrent sentences imposed for multiple criminal offences. 37 .     On the basis of the above considerations, the Court notes that the notion of a continuous criminal offence is not only a commonly used legislative and judicial approach to penalising a particular type of conduct, but is also specifically aimed at applying more lenient sentencing rules (see, by way of comparison, Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 70, ECHR 2013). It can be said that the concept of a continuous criminal offence confers two benefits on the offender: (a)     he or she is given one single sentence instead of a cumulative, consecutive or concurrent sentence imposed for several offences; and (b)     there is a requirement that the constituent elements of the offence defined by the new law, if any, be made out from the onset of the criminal conduct, that is, also with regard to the facts which occurred before the entry into force of the new law. C.     International law 1.     Council of Europe Convention on preventing and combating violence against women and domestic violence (adopted by the Committee of Ministers on 7 April 2011, came into force on 1   August 2014) 38 .     Under this Convention, which the Czech Republic has not ratified, the State has an obligation to address fully violence against women in all its forms and to take measures to prevent it, protect its victims and prosecute the perpetrators. The Convention provides, inter alia , as follows: Article 46 – Aggravating circumstances “Parties shall take the necessary legislative or other measures to ensure that the following circumstances, insofar as they do not already form part of the constituent elements of the offence, may, in conformity with the relevant provisions of internal law, be taken into consideration as aggravating circumstances in the determination of the sentence in relation to the offences established in accordance with this Convention: ... b     the offence, or related offences, were committed repeatedly; ...” 39.     According to paragraph 237 of the explanatory report on the above-mentioned Convention, the aggravating circumstance mentioned in Article   46, sub-paragraph b, concerns offences that are committed repeatedly. This refers to any of the offences established by this Convention as well as any related offences which are committed by the same perpetrator more than once during a certain period of time. The drafters thereby decided to emphasise the particularly devastating effect on a victim who is repeatedly subjected to the same type of criminal act. This is often the case in situations of domestic violence, which inspired the drafters to require the possibility of increased court sentences. It is important to note that the facts of an offence of a similar nature which led to the conviction of the same perpetrator may not be considered as a repeated act referred to under sub-paragraph b, but constitute an aggravating circumstance in their own right under sub-paragraph i. 2.     Case-law of the General Court of the European Union 40.     In its judgment of 17 May 2013 in Trelleborg Industrie SAS and Trelleborg AB v. European Commission (joined cases T-147/09 and T ‑ 148/09), the General Court dealt with the distinction between a “continuing” and a “repeated” infringement. THE LAW ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 41.     The applicant complained that the Criminal Code had been applied retroactively in his case, pointing out that he had been convicted of a continuous offence of abusing a person living under the same roof which, according to the courts, encompassed his conduct even before that offence had been introduced into the law. He also alleged that the courts had not duly examined whether his actions prior to that date would have amounted to a criminal offence under the old law. He relied in that regard on Article 7 of the Convention, which reads as follows: “1.     No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2.     This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.” 42.     The Government contested that argument. A.     The Chamber judgment 43.     In its judgment of 18 April 2013, the Chamber found that there had been no violation of Article 7 of the Convention. It accepted that, from the standpoint of Czech law, extending the application of the Criminal Code, as worded after 1 June 2004, to acts committed by the applicant prior to that date had not amounted to retroactive application of the criminal law. It also observed that the interpretation of the general concept of a continuation of a criminal offence as defined in Article 89 § 3 of the Criminal Code had been based on the clear and established case-law of the Supreme Court which had been developed prior to the date on which the applicant had first assaulted his wife. In so far as the applicant disputed the effects of that interpretation, which in his view had in fact resulted in retroactive application of the law, the Chamber held that the interpretation adopted by the courts in the present case had not in itself been unreasonable, given that a continuous offence, by definition, extended over a certain period of time and that it was not arbitrary to consider that it had ceased at the time of the last occurrence of the offence. Moreover, the Czech authorities had observed that the applicant’s acts had at all times been punishable as criminal offences. In these circumstances the relevant legal provisions, together with the interpretative case-law, had been such as to enable the applicant to foresee the legal consequences of his acts and adapt his conduct accordingly. B.     The parties’ submissions to the Grand Chamber 1.     The applicant 44.     While admitting that the domestic courts’ interpretation of Article   89   § 3 of the Criminal Code was foreseeable and generally accepted, the applicant asserted that it should not have been applied in his case since the conditions for applying the provision in question had not been met. In his opinion, the domestic authorities ought not to have classified his acts as a continuous offence because his assaults had not been driven by the same intent, nor had they been closely connected in time since there had been an interval of several years between the different assaults. He also pointed out that when the proceedings took place before the first-instance court, the prosecution of two individual assaults had already been statute-barred and they could not therefore be the subject of criminal proceedings. 45.     Furthermore, the domestic courts had never established that all the constituent elements of the criminal offences defined by the Criminal Code as in force until 1 June 2004 (violence against an individual or group of individuals within the meaning of Article 197a, or assault occasioning bodily harm under Article 221) had been made out. In the applicant’s opinion, his acts had not been punishable as criminal offences but simply as regulatory offences. He had thus been convicted of acts which did not constitute a criminal offence under national or international law at the time they were committed, in breach of Article 7 of the Convention. 46.     Finally, the applicant maintained that he did not enjoy sufficient safeguards against the imposition of a heavier penalty than the one applicable at the time of the commission of the offence. On the contrary, had the individual assaults been tried separately it would not have been possible to impose such a heavy sentence on him. 2.     The Government 47.     The Government noted that both Article 89 § 3 and Article 215a of the Criminal Code had been incorporated into the Czech legal system well before the applicant had ceased his criminal conduct in February 2006. At the relevant time there had also existed a considerable body of case-law in respect of continuous offences and the interpretation of Article 89 § 3 of the Criminal Code which followed the same logic as that applied in the instant case. It was thus clearly established that the conduct should be assessed as a single offence under the law in force at the time it came to an end. Moreover, in the Government’s view, the introduction on 1 June 2004 of Article 215a of the Criminal Code had rendered the likelihood of the applicant’s being held criminally liable even clearer and more foreseeable. Indeed, the new Article 215a of the Criminal Code dealt with unlawful conduct in a more comprehensive manner than Articles 197a and 221. Since the applicant had continued his unlawful acts after 1 June 2004, he could and should have expected to be held criminally liable under Article 215a of the Criminal Code for all his acts including those that had preceded the change in the legislation. 48.     Contrary to what had been suggested by the applicant, the Government asserted that the requirement of a close temporal connection between the assaults constituting the continuous offence had also been satisfied in this case. They conceded that the close temporal connection as defined by domestic judicial practice generally referred to days, weeks or months. However, a maximum limit had never been set and the notion necessarily allowed for flexibility depending on the nature of the offence in question. It followed from the evidence gathered in the case and from the domestic courts’ reasoning that the three incidents which occurred on 24   June 2000, 17 July 2003 and 8 February 2006 had been singled out as the most violent. The courts had consistently held that the applicant’s unlawful conduct had spanned a period of several years and that the individual assaults perpetrated by him had been of varying intensity and recurrent in nature, occurring within weeks of each other. Furthermore, the bill of indictment as well as the domestic courts’ decisions had clearly stated that the applicant was being tried for actions carried out before and after the entry into force of Article 215a, actions which could not be separated from each other. The requirement of legal certainty had thus been met as a result of the consistent assessment of the case by the prosecution and the courts (the Government cited, to converse effect, Ecer and Zeyrek v. Turkey , nos. 29295/95 and 29363/95, §§   33-35, ECHR 2001 ‑ II). It was clear from the conviction itself that the courts were also of the view that the applicant’s actions taken as a whole had disclosed the elements of the offence defined by Article 215a of the Criminal Code. 49 .     The Government therefore concluded that the requirement of a sufficiently clear and foreseeable legal basis had been satisfied, that the new criminal law had not been applied retroactively and that the applicant had not been given a heavier penalty than under the old law. In this regard, they assumed that, had the concept of a continuous offence as understood by the Czech courts been abandoned and the applicant’s actions before and after 1   June 2004 been assessed separately, the applicant’s possible sentence would have been either the same or more severe than the one actually imposed. Indeed, in that event the applicant would have been tried for multiple offences punishable by a concurrent sentence which would have been defined on the basis of the provision concerning the most serious offence, that is to say, Article 215a of the Criminal Code. Moreover, the existence of multiple criminal offences and the duration of the conduct in question would have constituted aggravating circumstances. C.     The Court’s assessment 1.     General principles 50.     The Court observes that in Del Río Prada v. Spain ([GC], no.   42750/09, ECHR 2013), its most recent Grand Chamber judgment concerning Article 7 of the Convention, it stated the following general principles that are relevant to its determination of the present case: “ (a)     Nullum crimen, nulla poena sine lege 77.     The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 even in time of war or other public emergency threatening the life of the nation. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see S.W. v. the United Kingdom , 22 November 1995, § 34, Series A no. 335-B; C.R. v. the United Kingdom , 22 November 1995, § 32, Series A no. 335 ‑ C; and Kafkaris [ v. Cyprus [GC], no. 21906/04], ... § 137[, ECHR 2008]). 78.     Article 7 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage (concerning the retrospective application of a penalty, see Welch v. the United Kingdom , 9 February 1995, § 36, Series A no. 307 ‑ A; Jamil v. France , 8 June 1995, § 35, Series A no.   317 ‑ B; Ecer and Zeyrek v. Turkey , nos. 29295/95 and 29363/95, § 36, ECHR 2001 ‑ II; and Mihai Toma v. Romania , no. 1051/06, §§ 26-31, 24 January 2012). It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege – see Kokkinakis v. Greece , 25   May 1993, § 52, Series A no. 260-A). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy (see Coëme and Others v. Belgium , nos.   32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, §   145, ECHR 2000-VII; for an example of the application of a penalty by analogy, see Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, §§   42 ‑ 43, ECHR 1999 ‑ IV). 79.     It follows that offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where the individual can know from the wording of the relevant provision, if need be with the assistance of the courts’ interpretation of it and after taking appropriate legal advice, what acts and omissions will make him criminally liable and what penalty he faces on that account (see Cantoni v. France , 15   November 1996, §   29, Reports of Judgments and Decisions 1996 ‑ V, and Kafkaris , cited above, §   140). 80.     The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision (see Coëme and Others , cited above, §   145, and Achour v. France [GC], no.   67335/01, § 43, ECHR 2006 ‑ IV). (b)     The concept of a ‘penalty’ and its scope ... (c)     Foreseeability of criminal law 91.     When speaking of ‘law’ Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability (see Kokkinakis , cited above, §§   40 ‑ 41; Cantoni , cited above, § 29; Coëme and Others , cited above, § 145; and E.K. v. Turkey , no. 28496/95, § 51, 7 February 2002). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries. 92.     It is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. One of the standard techniques of regulation by rules is to use general categorisations as opposed to exhaustive lists. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see Kokkinakis , cited above, § 40, and Cantoni , cited above, §   31). However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances (see Kafkaris , cited above, §   141). 93.     The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain (ibid.). The progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition in the Convention States (see Kruslin v.   France , 24 April 1990, § 29, Series   A no. 176 ‑ A). Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see S.W. v. the United