CEDH · CASELAW;CLIN;ENG — 12 janvier 2016

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Andorra - 33427/10 Judgment 12.1.2016 [Section III] Article 7 Article 7-1 Retroactivity Failure to apply new reduced penalty retrospectively: violation Facts – In 1999 the applicant was sentenced to a prison term for sexual offences committed while carrying out his duties as a doctor. An ancillary penalty, namely a lifetime ban on practicing medicine, was also imposed. As a result of the combination of a pardon and other forms of remission, the applicant did not serve the prison sentence. However, the ban on exercising his profession was not affected by the pardon. Subsequently, the new Criminal Code, adopted in 2005, specified that the duration of ancillary penalties could not exceed that of the main sentence. A transitional provision of this new Criminal Code gave persons who had been sentenced in a final judgment to a prison or custodial sentence the possibility of lodging an application for revision, if their sentence was being served at the time of the entry into force of the new Criminal Code. An application by the applicant for revision of his sentence, and his subsequent appeals, were dismissed on the ground that he did not satisfy the conditions laid down by the transitional provision. Before the European Court, the applicant complained that the more lenient criminal law had not been applied retrospectively. He considered that the length of the ban on exercising his profession ought to have been reduced. Law – Article 7: In line with the two Criminal Codes concerned and the assessment of the domestic courts, it was appropriate to classify the prohibition on practicing as a doctor as a punishment within the meaning of Article   7, moreover an ancillary one. In addition, although the 1990 Criminal Code applied in the applicant’s case imposed a lifetime ban on practising his profession, the 2005 reform established that the duration of ancillary penalties could not exceed that of the most severe main penalty. This sufficed to show that the amendment to the Criminal Code was the most favourable criminal law for the applicant. However, the applicant’s conviction had become final prior to the entry into force of the new Criminal Code and the new text expressly recognised the principle of the retrospective application of the more favourable criminal law. The new Criminal Code specifically imposed an obligation on courts which had delivered verdicts convicting and sentencing defendants to revise them of their own motion where a subsequent law reduced the penalty or security measure laid down for an offence, even in the event of a final judgment. No valid reason could be discerned for excluding the applicant from the benefit of the provision. This specific feature of the Andorran domestic law gave the present case a particular character. Where a State expressly provided in its legislation for the principle of the retrospective application of the more favourable criminal law, it had to enable the persons appearing before its courts to exercise this right in accordance with the Convention’s safeguards. In the present case, the Andorran courts had continued to apply the more severe penalty, imposed previously, although the legislature had not only laid down a more lenient penalty but had also specifically provided for its retrospective application. Thus, by maintaining the application of a penalty which went beyond the provisions of the criminal legislation in force, the Andorran courts, in violation of the principle of the rule of law, had breached the applicant’s right to the penalty provided by law. Conclusion : violation (five votes to two). The Court also held, by five votes to two, that there had been a violation of Article   13 taken together with Article   7 of the Convention, on account of the absence of an effective remedy. Article 41: EUR 12,000 in respect of non-pecuniary damage; no award in respect of pecuniary damage. (See also Scoppola v. Italy (no. 2) [GC], 10249/03, 17   September 2009, Information Note   122 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes