CEDH · CASELAW;CLIN;ENG — 12 juillet 2016

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Ukraine - 8927/11 Judgment 12.7.2016 [Section V] Article 7 Article 7-1 Heavier penalty Refusal to apply more lenient sentence existing during short interval in legislation between abolition of death penalty and ensuing amendment of the law: no violation Facts – The applicant was convicted in 2010 of offences, including aggravated murder, committed in 1996. At the time of the commission of the offences the 1960 Criminal Code provided for the death penalty for that offence. On 29   December 1999 the Constitutional Court found the death penalty to be unconstitutional with immediate effect. Three months later, on 29   March 2000, the Parliament amended the Criminal Code so as to abolish the death penalty by replacing it with life imprisonment for the offence of aggravated murder. The applicant contended in the Convention proceedings that the lex mitior principle required that he benefit from the more lenient (fifteen-year) sentence that he alleged was applicable to the offence of aggravated murder during the three-month interval between the ruling of the Constitutional Court and the amendment to the Criminal Code bringing in the sentence of life imprisonment. Law – Article 7: Article 7 § 1 guaranteed not only the principle of non-retrospectiveness of more stringent criminal laws but also, and implicitly, the principle of retrospectiveness of the more lenient criminal law effect; in other words, where there were differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment was delivered, the courts had to apply the law whose provisions were most favourable to the defendant. It was consistent with the principle of the rule of law to expect a trial court to apply to each punishable act the penalty which the legislator considered proportionate.* The gap in the legislation during the three-month period between the abolition of the death penalty and the ensuing amendment of the Criminal Code had been unintentional. Indeed, it would be difficult to argue that the wording of the 1960 Criminal Code during the relevant period contained a punishment for the type of crime committed by the applicant that the legislator considered proportionate. The intention of the legislator to humanise the criminal law and to give retrospective effect to more lenient law was an important factor (see Gouarré Patte v.   Andorra , 33427/10, 12   January 2016, Information Note   192 ). However, from the materials before it, the Court could not detect any intention on the part of the legislator in particular, and of the State in general, to mitigate the law to the extent claimed by the applicant. At the time the applicant committed his crime in 1996, it was punishable by the death penalty. The Parliament had then replaced that penalty with the life sentence, which it considered proportionate. Thus the refusal of the domestic courts to consider the 1960 Criminal Code as worded during the said three-month period as the most lenient law enacted before the final verdict and their decision to apply instead the wording of the Criminal Code as amended by the Parliament on 29   March 2000, that is long before the applicant’s conviction and which had been in place ever since, had not upset the applicant’s rights as guaranteed by Article   7. Accordingly, having sentenced the applicant to life imprisonment, which was the applicable penalty at the time of conviction, and not to the death penalty, which was the relevant penalty at the time he committed the crime, the domestic courts had in fact applied the more lenient punishment. Conclusion : no violation (six votes to one). * 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