CEDH · CASELAW;ADVISORYOPINIONS;PROTOCOL16;OPINIONS;ENG — 29 mai 2020

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P16-2019-001)             STRASBOURG   29 May 2020           This opinion is final but it may be subject to editorial revision.   The European Court of Human Rights, sitting as a Grand Chamber composed of:   Linos-Alexandre Sicilianos, President ,   Robert Spano,   Jon Fridrik Kjølbro,   Ksenija Turković,   Paul Lemmens,   Síofra O’Leary,   Ganna Yudkivska,   André Potocki,   Egidijus Kūris,   Iulia Antoanella Motoc,   Georges Ravarani,   Pauliine Koskelo,   Marko Bošnjak,   Jovan Ilievski,   Jolien Schukking,   Gilberto Felici, judges ,   Arman Sarvarian, ad hoc judge , and Søren Prebensen, Deputy Grand Chamber Registrar , Having deliberated in private on 21 April, 7 May and 15 May 2020, Delivers the following opinion, which was adopted on the last-mentioned date: PROCEDURE 1 .     In a letter of 2 August 2019 sent to the Registrar of the European Court of Human Rights (“the Court”), the Armenian Constitutional Court requested the Court, under Article 1 of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“Protocol   No. 16”), to give an advisory opinion on the questions set out at paragraph 11 below. That request arose in the context of two cases currently pending before that court relating to protests which took place in Armenia between late February and early March 2008 and in which questions arose regarding the interpretation and application of the provision of the Armenian criminal code which penalised the overthrowing of the Armenian constitutional order (see paragraph 26 below for the relevant provision). 2.     On 26 August and 2 September 2019 the Constitutional Court provided further materials and explanations as requested by the Court. The advisory-opinion request was therefore considered by the Court to have been formally lodged on the latter date. 3.     The judge elected in respect of Armenia, Mr Armen Harutyunyan, was unable to sit (Rule 28 of the Rules of Court). Accordingly, the President decided to appoint Dr Arman Sarvarian to sit as ad hoc judge (Article 2 § 3 of Protocol No. 16 and Rules 29 § 1 and 93 § 1.1(d)). 4.     On 2 October 2019 the panel of five judges of the Grand Chamber of the Court, composed in accordance with Article 2 § 3 of Protocol No. 16 and Rule 93 § 1 of the Rules of Court, decided to accept the request. 5.     The composition of the Grand Chamber was determined on 7   October   2019 in accordance with Rules 24 § 2 (h) and 94 § 1. 6 .     By letters of 9 October 2019 the Registrar informed the parties to the domestic proceedings that the President was inviting them to submit to the Court written observations on the request for an advisory opinion, by 19 November 2019 (Article 3 of Protocol No. 16 and Rule 94 § 3). Within that time-limit, written observations were submitted by the Armenian National Assembly and by Mr Kocharyan. 7.     The Armenian Government (“the Government”) submitted written observations under Article 3 of Protocol No. 16. The Commissioner for Human Rights of the Council of Europe did not avail herself of that right. 8 .     Written observations were also received from the Helsinki Association for Human Rights, and by Mr Yegoryan on behalf of the family members of the victims of the events of 1-2 March 2008. Both had been granted leave by the President to intervene (Article 3 of Protocol No. 16). A further non-governmental organisation, “Path of Law”, had also been granted leave to intervene by the President. It failed to submit its written observations within the time-limit fixed. The President refused its request for an extension of that time-limit. 9.     Copies of the observations received were transmitted to the Constitutional Court, which did not submit any observations (Rule 94 § 5). 10.     After the close of the written procedure, the President of the Grand Chamber decided that no oral hearing should be held (Rule 94 § 6). THE QUESTIONS ASKED 11 .     The questions asked by the Constitutional Court in the request for an advisory opinion were worded as follows: “1.     Does the concept of ‘law’ under Article 7 of the Convention and referred to in other Articles of the Convention, for instance, in Articles 8-11, have the same degree of qualitative requirements (certainty, accessibility, foreseeability and stability)? 2.     If not, what are the standards of delineation? 3.     Does the criminal law that defines a crime and contains a reference to certain legal provisions of a legal act with supreme legal force and higher level of abstraction meet the requirements of certainty, accessibility, foreseeability and stability? 4.     In the light of the principle of non-retroactivity of criminal law (Article   7 § 1 of the Convention), what standards are established for comparing the criminal law in force at the time of committal of the crime and the amended criminal law, in order to identify their contextual (essential) similarities or differences?” 12.     In parallel, by a letter sent on the same date as the advisory-opinion request (see paragraph 1 above) the Armenian Constitutional Court asked the European Commission for Democracy through Law (Venice   Commission) for an amicus curiae brief on questions of comparative constitutional law and of international law. THE BACKGROUND AND THE DOMESTIC PROCEEDINGS GIVING RISE TO THE REQUEST FOR AN OPINION 13.     Mr Robert Kocharyan was the President of Armenia between 1998 and 2008. A presidential election was held in Armenia on 19   February   2008. The main contenders were the then Prime Minister, Mr   Serzh   Sargsyan, belonging to the same party as President Kocharyan, and the main opposition candidate, Mr Levon Ter-Petrosyan, who had also served as President of Armenia between 1991 and 1998. On 24 February the Central Election Commission announced that Prime Minister Serzh   Sargsyan had won the election with around 52% of all votes cast, while Mr Levon Ter-Petrosyan had received around 21% of votes. 14.     From 20 February 2008 onwards daily nationwide protests were held in Armenia by Mr Ter-Petrosyan’s supporters and thousands of other concerned citizens who believed that the presidential election had not been free and fair. Their main meeting point in Yerevan was Freedom Square, where some of the protesters even stayed around the clock, having set up a camp. In the early morning of 1 March 2008, around 6.30 a.m., a major police operation involving at least 800 police officers and special forces was carried out at Freedom Square, resulting in the violent dispersal of protesters camping or otherwise present in the square. This led later in the day to a major escalation and standoff between, on the one hand, the protesters and thousands of other disgruntled citizens who had poured into the streets of Yerevan in response to the morning’s events and, on the other hand, the law-enforcement authorities. It appears that numerous clashes took place and at some point even the army was brought in to quell the protest. The standoff continued until the early morning of 2 March 2008 and resulted in ten deaths (eight civilians and two law-enforcement officers) and a declaration of a state of emergency by Mr Kocharyan, which put a restriction on the enjoyment of a number of rights for a period of twenty   days, including the right to freedom of assembly. 15.     In April 2018 events known as the “Velvet Revolution” led to the resignation of Mr Serzh Sargsyan, who was at that time again Prime   Minister, after two terms as President of Armenia. Subsequently, the leader of the protest movement, Nikol Pashinyan, was elected Prime   Minister. 16 .     On 27 July 2018 Mr Kocharyan, and later a number of other individuals, were charged with overthrowing the constitutional order of Armenia under Article 300.1 § 1 of the 2009 Criminal Code (“the 2009 CC”) in connection with the above-mentioned events and placed in pre-trial detention. Mr Kocharyan was in substance accused of:   (a)     unlawfully involving the Armed Forces, as well as unlawfully armed civilians, in the post-election political situation and thereby de facto eliminating the relevant provisions of the constitutional order by usurping power;   (b)     as Commander-in-Chief, instructing the use of the armed forces in political matters against civilians participating in peaceful protests, which had led to an unconstitutional engagement of army units by creating a new unlawful structure of military command and by withdrawing those units, during the night of 24   February 2008, from the locations of their deployment, including the national frontier, and moving them to military bases located in Yerevan and nearby;   (c)     having full knowledge of the police operation of 1 March 2008 forcing hundreds of peaceful protesters present in the Freedom Square to disperse with the unlawful use of force and then continuing using such force against protesters in central parts of Yerevan in order to prevent possible demonstrations; and   (d)     in the absence of a direct threat to the constitutional order, declaring a state of emergency on 1 March 2008 for a period of twenty days in violation of the Constitution and in the absence of a law regulating the legal framework of a state of emergency, and enabling measures and temporary restrictions as envisaged by the Martial Law Act. The restrictions under the state of emergency included prohibitions on freedom of assembly and demonstration, freedom of association, freedom of movement, freedom to disseminate information on public affairs via non-public media outlets, dissemination of leaflets and other forms of political propaganda, suspension of the activities of political parties and non-governmental organisations obstructing the elimination of the circumstances giving rise to the state of emergency, and expulsion of non-residents violating the state of emergency. According to the indictment, the acts in question were aimed at overthrowing the constitutional order of Armenia prescribed by Articles 1, 2, 3 and 5 and Article 6   §   1 of the 2005 Constitution. 17.     Following an investigation, on 29 April 2019 the criminal case was referred for trial to the First-Instance Court of General Jurisdiction of Yerevan. On 9 May 2019 the First-Instance Court declared the case admissible and on 20 May 2019, without entering into the judicial examination stage (see paragraph 20 below), it decided to suspend the criminal proceedings and to apply to the Constitutional Court – under Article 169 § 4 of the Constitution – with a request to determine, inter alia , the compatibility of Article 300.1 of the 2009 CC with Articles 72, 73 and 79 of the Constitution of 2015. The First-Instance Court expressed doubts as to whether Article 300.1 of the 2009 CC, which was to be applied in the case before it, met the requirement of legal certainty and whether, having come into force on 24 March 2009, it had worsened the legal situation of a person in comparison to Article 300 of the CC, which had been in force at the time when the alleged offence had been committed. 18.     On 30 May and 4 June 2019 Mr Kocharyan also lodged two   applications with the Constitutional Court – under Article 169 § 1 (8) of the Constitution – seeking to determine the compatibility of Article 300.1 of the 2009 CC with Articles 72, 73, 78 and 79 of the Constitution of 2015. Referring to the judicial decisions ordering his detention, he argued that (a) Article 300.1 of the 2009 CC, which had been applied in his case, had not existed at the material time; (b) former Article 300 of the CC and new Article 300.1 of the CC essentially differed from each other and consequently the application of Article 300.1 of the CC in his case violated his rights guaranteed by Articles 72 and 73 of the Constitution of 2015; and (c) Article 300.1 of the 2009 CC failed to meet the requirement of legal certainty guaranteed by Article 79 of the Constitution of 2015, in particular because the wording “terminating the validity of [a constitutional] norm in the legal system” was not specific and foreseeable in its application. Relying on, inter alia , Articles 5 and 7 of the Convention, he argued that, since he had been charged and detained on the basis of Article 300.1 of the 2009 CC, his applications contesting the constitutionality of that provision met the admissibility requirements set out in Article 169 § 1 (8) of the Constitution. He also argued that no case-law had been developed since 2009 clarifying the meaning of Article 300.1 of the CC. 19.     On 21 June 2019 the Constitutional Court, by two rulings, decided to declare admissible and examine jointly the two applications submitted by Mr Kocharyan. No reasons were provided for these rulings. A similar ruling declaring admissible the request submitted by the First-Instance Court was given on 8   July 2019. 20 .     In the meantime, on 25 June 2019, upon an appeal by the prosecutor, the Criminal Court of Appeal (hereinafter “the Court of Appeal”) quashed the First-Instance Court’s decision of 20 May 2019 and remitted the criminal case to the latter for it to resume the criminal proceedings. It found that the First-Instance Court had not yet entered into the stage of judicial examination and had not carried out a sufficient examination of the factual background related to the disputed questions. It could not therefore, at this stage of the proceedings, reach a conclusion as to the existence or absence of well-founded doubts regarding the constitutionality of the legal provision to be applied in the case. 21.     It appears that the decision of the Court of Appeal was contested before the Court of Cassation and that those proceedings are currently pending. No information or documents have been provided concerning the proceedings before the Court of Cassation. Nor has information been provided regarding the continuation of the proceedings before the First ‑ Instance Court following the remittal. 22.     According to the information available to the Court, Mr Kocharyan is still in pre-trial detention. RELEVANT DOMESTIC LAW 23.     The relevant provisions of the Armenian Criminal Code and the Armenian Constitution read as follows. The criminal Code Version of the Criminal Code in force at the time of the alleged commission of the offences 24 .     Articles 12 and 13 of the Criminal Code, dealing with the operation of the criminal law in time and the retroactive effect of criminal law, read as follows. They were not changed by the 2009 amendment of the Criminal Code. Article 12 – Operation of the criminal law in time “1.     The criminality and punishability of an act shall be determined by the criminal law in force at the time of the commission of the offence. 2.     The time of the commission of an offence is the time when a socially dangerous act (or omission) was committed, regardless of when the consequences started to take effect.” Article 13 – Retroactive effect of criminal law “1.     A law eliminating the criminality of an act, mitigating the punishment or improving the status of the offender in any way shall have retroactive effect, that is, it shall apply to the persons who committed the act in question before the law had taken effect, including those persons who are serving the punishment, or have served the punishment but still have a criminal record. 2.     A law establishing the criminality of an act, making the punishment more severe or worsening the status of the offender in any other way shall have no retroactive effect. 3.     A law partially mitigating the punishment and, at the same time, partially making the punishment more severe shall have retroactive effect only in so far as it mitigates the punishment.” 25 .   In the Criminal Code in force at the material time, overthrowing the constitutional order was punishable under Article 300, entitled “Usurpation of power”. That Article read as follows: Article 300 – Usurpation of power “1.     Usurpation of State power, that is, actions aimed at the violent seizure of State power or its violent retention in violation of the Constitution, as well as the violent overthrow of the constitutional order of Armenia or a violent breach of the territorial integrity of Armenia, shall be punishable by imprisonment for a period of between ten and fifteen years.” Version of the Criminal Code in force since 24 March 2009 (“the 2009 CC”) 26 .     The 2009 CC modified the definition of the offences of “usurpation of power” (Article 300) and “overthrowing the constitutional order” (Article   300.1). The amended Articles, in so far as relevant, read as follows: Article 300 – Usurpation of State power “1.     Seizure of power through violence or the threat of violence, or seizure of the powers of the President, the National Assembly, the Government or the Constitutional Court through other means not prescribed by the Constitution, shall be punishable by imprisonment for a period of between ten and fifteen years. 2.     Retention of power, that is, continuing to perform the powers of the President, a member of parliament, the Prime Minister or a minister after the end of the corresponding term of office, shall be punishable by imprisonment for a period of between ten and fifteen years.” Article 300.1 – Overthrowing the constitutional order “1.     Overthrowing the constitutional order, that is, the de facto elimination of any of the norms prescribed by Articles 1 to 5 and paragraph 1 of Article 6 of the Constitution, by terminating the validity of that norm in the legal system, shall be punishable by imprisonment for a period of between ten and fifteen years.” The Constitution The Constitution as in force at the material time 27.     At the time of the events, that is, in February and March 2008, the 2005 Constitution was in force. The Articles of the Constitution of relevance in the context of the present advisory-opinion request read as follows: Article 1 “The Republic of Armenia is a sovereign, democratic and social State governed by the rule of law.” Article 2 “In the Republic of Armenia, the power belongs to the people. The people shall exercise their power through free elections and referenda, as well as through State and local self-government authorities and officials as provided for by the Constitution. Usurpation of power by any organisation or individual shall be a crime.” Article 3 “The human being, his or her dignity and fundamental rights and freedoms are the highest values. The State shall ensure the protection of fundamental human and citizen’s rights and freedoms, in conformity with the principles and norms of international law. The State shall be bound by fundamental human and citizen’s rights and freedoms as directly applicable law.” Article 4 “Elections of the President, the National Assembly and local self-government authorities, as well as referenda, shall be held on the basis of universal, equal and direct suffrage, by secret ballot.” Article 5 “State power shall be exercised in conformity with the Constitution and laws on the basis of the separation and balance of the legislative, executive and judicial powers. State and local self-government authorities and officials shall be entitled to perform only such actions for which they are authorised under the Constitution or laws.” Article 6 “1.     The Constitution has supreme legal force and shall be directly applicable.” The 2015 Constitution 28 .     In 2015 a new Constitution came into force, the relevant Articles of which provide as follows: Article 1 “The Republic of Armenia is a sovereign, democratic and social State governed by the rule of law.” Article 2 “In the Republic of Armenia, the power belongs to the people. The people shall exercise their power through free elections and referenda, as well as through State and local self-government bodies and officials as provided for by the Constitution. Usurpation of power by any organisation or individual shall be a crime.” Article 3 “The human being, his or her dignity, fundamental rights and freedoms 1.     The human being shall be the highest value in the Republic of Armenia. The inalienable dignity of the human being shall constitute the integral basis of his or her rights and freedoms. 2.     The respect for and protection of fundamental human and citizen’s rights and freedoms shall be the duty of the public authorities. 3.     The public authorities shall be bound by fundamental human and citizen’s rights and freedoms as directly applicable law.” Article 4 “The principle of separation and balance of powers State power shall be exercised in conformity with the Constitution and the laws, on the basis of separation and balance of the legislative, executive and judicial powers.” Article 5 “The hierarchy of legal norms 1.     The Constitution shall have supreme legal force. 2.     Laws must comply with constitutional law, whereas secondary regulatory instruments must comply with constitutional and statute law. 3.     In the event of conflict between the norms of international treaties ratified by the Republic of Armenia and of laws, the norms of international treaties shall apply.” Article 6 “The principle of lawfulness 1.     State and local self-government bodies and officials shall be entitled to perform only such actions for which they are authorised under the Constitution or laws. ...” Article 72 “No one may be convicted for any act or omission which did not constitute an offence at the time when it was committed. Nor may a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. A law decriminalising an act or mitigating a penalty shall have retroactive force.” Article 73 “Laws and other legal instruments worsening the legal situation of a person shall have no retroactive force. Laws and other legal instruments improving the legal situation of a person shall have retroactive force if so provided by such instruments.” Article 78 “Any means chosen for restricting fundamental rights and freedoms must be suitable and necessary for the achievement of the objective prescribed by the Constitution. The means chosen for such restriction must be proportionate to the significance of the fundamental right or freedom being restricted.” Article 79 “When restricting fundamental rights and freedoms, laws must define the grounds and scope of such restrictions, and be sufficiently certain to enable persons exercising such rights and freedoms and being affected by them to regulate their conduct appropriately.” COMPARATIVE LAW MATERIAL 29.     The Court undertook a comparative-law survey covering forty-one States Parties to the Convention not including Armenia: Andorra, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Republic of Moldova, Montenegro, the Netherlands, North Macedonia, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Switzerland, Turkey, Ukraine and the United Kingdom. 30.     The survey addressed two issues. The first issue concerns the use of the “blanket reference” or “legislation by reference” technique for setting out the constituent elements of criminal offences in general and offences against the constitutional order of a country in particular. The second issue concerns the principle of non-retroactivity of (less favourable) criminal law and the principle of retrospective application of more favourable criminal law. The use of the “blanket reference” or “legislation by reference” technique 31 .     Regarding the first issue the Court will use the terminology “blanket reference” or “legislation by reference” technique to denote the legislative technique where substantive provisions of criminal law, when setting out the constituent elements of criminal offences, refer to legal provisions outside criminal law. Moreover, the term “referencing provision” will be used to denote the (criminal law) provision referring to a legal provision outside criminal law. The latter will be termed the “referenced provision” or “provision referred to”. 32 .     The survey shows that a large majority of the forty-one member States covered by the survey, namely all except two (Malta and the Netherlands), make use of the “blanket reference” or “legislation by reference technique” in their criminal law in general. Twenty-one member States (Andorra, Azerbaijan, Bosnia and Herzegovina, Bulgaria, the Czech   Republic, Finland, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, North Macedonia, Norway, Poland, Romania, Russia, Serbia, Spain, Switzerland, Turkey and Ukraine) also have recourse to this technique in respect of criminal offences against the constitutional order of their country. 33 .     Among those member States making use of the “blanket reference” or “legislation by reference” technique in the definition of offences against the constitutional order, eleven member States (Azerbaijan, Bulgaria, the Czech Republic, Finland, Iceland, Italy, Norway, Poland, Russia, Switzerland and Ukraine) do so by referring either to general principles or to notions of constitutional law and three (Ireland, Latvia and Spain) by making reference to specific rules of constitutional law. The combined use of both is to be found in one member State (Turkey). References to other provisions, outside constitutional law, can be found in ten member States (Andorra, Bosnia and Herzegovina, Bulgaria, Hungary, Latvia, Lithuania, North Macedonia, Romania, Russia and Serbia). 34 .     In twenty-six out of the forty-one legal systems surveyed (Andorra, Austria, Belgium, Bosnia and Herzegovina, Croatia, Cyprus, the Czech   Republic, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Montenegro, North Macedonia, Romania, Russia, Slovakia, Slovenia, Switzerland, Turkey and the United Kingdom), when use is being made of the “blanket reference” or “legislation by reference” technique, the relevant requirements concerning the principle of legality – including the level of precision of the criminal-law provisions in general (accessibility, clarity, certainty, foreseeability) – apply to the level of precision of the criminal-law provisions containing references to legal provisions outside criminal law, which accordingly extends the requisite level of precision to the legal provisions referred to. 35 .     In some legal systems, when use is made of the “blanket reference” or “legislation by reference technique”, the domestic law (including domestic case-law and legislative practices) imposes some further requirements in this regard. These requirements relate to the precision and foreseeability of the law and pertain either to the referencing provision or to the referenced provision or to both provisions taken together. For instance, some legal systems require that references be explicit, or require that it must be foreseeable to which norm(s) the referencing provision refers. In some legal systems the referencing provision must set out the penalty and the essential elements of the offence. The referenced provision has only interpretative relevance in the sense that it may not extend the scope of criminalisation as set out in the referencing provision and, most importantly, both provisions taken together must enable the individual concerned to understand the constituent elements of the offence and to foresee what acts or omissions will make him or her criminally liable (various examples can be found in the case-law of the Austrian, Portuguese, Slovenian and Spanish Constitutional Courts). There seems to be no consensus among member States regarding the question whether the referenced norms must be or may be of a certain nature or hierarchical level. The principle of non-retroactivity of (less favourable) criminal law and the principle of retrospective application of more favourable criminal law 36 .     Almost all of the forty-one legal systems surveyed recognise the principle of non-retroactivity of (less favourable) criminal law and the principle of retrospective application of more favourable criminal law. In some legal systems (Cyprus, Iceland, Ireland, Malta, the Netherlands, Norway and the United Kingdom) the application of the principle of non ‑ retroactivity of criminal law has certain specific characteristics. In some of these systems (Iceland, the Netherlands and Norway) the principle of retrospective application of more favourable criminal law applies as regards the substantive criminal-law provisions only under certain conditions relating to the necessity to establish the intention of the legislature with regard to the decriminalisation of an act. In some others the principle is, or appears to be, limited to the retrospective application of more lenient penalties: in Cyprus the principle of retrospective application of the more lenient criminal law is limited only to penalties unless something contrary is specifically stated in the new law. In Malta the application of that principle appears to be limited only to the application of penalties. In Ireland and the United Kingdom the principle applies to penalties, but it is not clear whether it could also apply as regards the substantive provisions of criminal law. 37 .     In the legal systems surveyed there are different criteria for assessing whether or not – for the purpose of the principle of (non-)retroactivity of criminal law – a law passed after an offence has been committed is more or less favourable to the accused than the law that was in force at the time of the commission of the offence. Despite certain differences, there are two   criteria that commonly apply: (1) the principle of “concretisation” and, (2) the principle of prohibition of the combination of multiple potentially applicable criminal laws. 38 .     According to the principle of “concretisation”, which applies in twenty-two legal systems surveyed (Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Estonia, Finland, France, Germany, Greece, Italy, Lithuania, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Switzerland and Turkey), it is necessary to determine in concreto which law is more favourable to the accused and then to apply that law. In one of the legal systems covered by the survey (the Netherlands), the question of more favourable criminal law must be decided on the basis of an assessment in abstracto instead of the possibility of an assessment in concreto of a more lenient penalty. No information is available in respect of the other legal systems surveyed. 39 .     The principle of prohibition of the combination of multiple potentially applicable criminal laws applies in twelve legal systems surveyed (Belgium, Croatia, Finland, Greece, Hungary, Luxembourg, Poland, Romania, Serbia, Slovenia, Spain and Turkey). In respect of the other legal systems surveyed, no information is available. According to that principle, it is not possible to combine some provisions of one criminal law with some provisions of another, but it is necessary to determine which criminal law – all provisions taken together – is more favourable to the accused and then to apply only that law. 40 .     There are, however, some exceptions to that principle. For instance, in Croatia, if the new law reduces the minimum sentence but increases the maximum sentence, the new law is considered to be more lenient but the sentence imposed cannot be higher than the maximum period imposed under the older law. In Finland, although generally it is not possible to pick and choose the most lenient elements among the old law and the new law, nevertheless if both the general principles of the criminal law and a particular provision on punishment have changed, it is possible for both laws to be applied. There are also specific considerations of relevance for the assessment of the more/less favourable criminal law as regards the applicable sanctions and/or the substantive provisions of criminal law. THE COURT’S OPINION Preliminary considerations 41.     The present advisory-opinion request presents two specific features. Firstly, the questions submitted by the Constitutional Court are, at least in part, broad and very general. Secondly, the Constitutional Court itself is seized in the context of proceedings for the review of the constitutionality of Article 300.1 of the 2009 Criminal Code (“the 2009 CC”), while the underlying criminal proceedings against Mr Kocharyan are pending at an early stage before the criminal court of first instance. The Court therefore deems it useful to have regard to a number of preliminary considerations. 42.     Under Article 1 § 1 of Protocol No. 16, designated highest courts or tribunals may request the Court to give advisory opinions on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the Protocols thereto”. Pursuant to Article 1 § 2 of Protocol No. 16, a highest court or tribunal may do so “only in the context of a case pending before it”. Article 1 § 3 of Protocol No. 16 requires the requesting court to give reasons for its request and to provide the relevant legal and factual background for the pending case. 43.     The Court reiterates that, as stated in the Preamble to Protocol No.   16, the aim of the advisory-opinion procedure is to further enhance the interaction between the Court and national authorities and thereby reinforce the implementation of the Convention, in accordance with the principle of subsidiarity. The aim of the procedure is not to transfer the dispute to the Court, but rather to give the requesting court guidance on Convention issues when determining the case before it (see Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother [GC], request no. P16-2018-001, French Court of Cassation, § 25, 10 April 2019 (“ Advisory opinion P16-2018-001 ”)). 44 .     Turning to the first feature addressed above, namely the broad and general nature of at least some of the questions submitted, the Court reiterates that it has inferred from Article 1 §§ 1 and 2 of Protocol No. 16 that the opinions it delivers under this Protocol “must be confined to points that are directly connected to the proceedings pending at domestic level” (ibid., § 26). 45 .     It follows from the latter consideration that the Court has the power to reformulate questions asked by the requesting court, having regard to the specific factual and legal circumstances in issue in the domestic proceedings Indeed it did so in the first advisory opinion (ibid., §§ 27-33). The Court considers that, similarly, it may also combine certain questions asked by the requesting court. 46.     A related but separate issue is whether, once a request for an advisory opinion has been brought before it, the Grand Chamber may decide not to answer one or more questions. Article 2 § 1 of Protocol No. 16 specifies that “[the] panel ... shall decide whether to accept a request for an advisory opinion, having regard to Article 1”. Article 2 § 2 of Protocol No. 16 provides that “[i]f the panel accepts the request, the Grand Chamber shall deliver the advisory opinion”. However, while the panel accepts the request for an advisory opinion as a whole if it considers at that stage, and without the benefit of written and oral observations, that the request appears to fulfil the requirements of Article 1 of Protocol No. 16, this does not mean that all the questions that make up the request will necessarily fulfil these requirements. 47.     While the decision to accept the request for an advisory opinion lies with the panel, this cannot deprive the Grand Chamber of the possibility of employing the full range of powers conferred on the Court, including its power in relation to the Court’s jurisdiction (Articles 19 and 32 of the Convention and, by analogy, Article 48). Nor can the panel’s decision preclude the Grand Chamber from assessing whether each of the questions composing the request fulfils the requirements of Article 1 of Protocol No.   16, in particular: whether each question concerns “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the Protocols thereto” (paragraph 1); whether the opinion has been sought “in the context of a case pending before” the requesting court (paragraph 2); and whether the requesting court has “give[n] reasons for its request and” has “provid[ed] the relevant legal and factual background of the pending case” (paragraph 3). Also, as already stated above, it follows from paragraphs 1 and 2 of Article 1 of Protocol No.   16 that the Grand Chamber’s opinion must be confined to the points that are directly connected to the proceedings pending at domestic level. It thus remains open to the Grand Chamber to verify whether the questions that are the subject of a request fulfil the requirements set out in Article 1 of Protocol No. 16 on the basis of the original request, the observations received and all other material before it (see, mutatis mutandis , in the context of the Grand Chamber’s role in proceedings following a request for referral under Article 43 of the Convention, Pisano v. Italy (striking out) [GC], no. 36732/97, §§ 26-28, 24 October 2002). Should it come to the conclusion, taking due account of the factual and legal context of the case, that certain questions do not fulfil these requirements, it will not examine these questions and will make a statement to this effect in its advisory opinion. 48.     Turning to the second feature, the Court observes that the Constitutional Court has availed itself of the advisory-opinion procedure, which is by its nature preliminary, in the context of proceedings for the review of constitutionality of Article 300.1 of the 2009 CC. By their nature these proceedings are also preliminary, in that they are intended to determine a question of domestic law that is relevant for the main proceedings that gave rise to them, namely the criminal proceedings against Mr Kocharyan, pending before the First-Instance Court. 49 .     While this double referral does not constitute an obstacle to dealing with the present advisory-opinion request, it nevertheless frames the Court’s approach in giving its advisory opinion, in particular where, as in the present case, the main proceedings are pending at a very early stage and the relevant facts have not yet been the subject of any judicial determination (compare and contrast with Advisory opinion P16-2018-001 , cited above, §§   27-33, in which information as to the precise factual circumstances underlying the legal questions raised in the advisory-opinion request was available to the Court). The Court’s advisory opinion will proceed on the basis of the facts as provided by the Constitutional Court, although those facts may be subject to subsequent review by the First-Instance Court. It should enable the Constitutional Court to resolve the issues before it, that is, to assess the constitutionality of Article 300.1 of the 2009 CC in the light of the requirements flowing from Article 7 of the Convention. In turn, it will be for the First-Instance Court to apply the answer given by the Constitutional Court to the concrete facts of the case against Mr Kocharyan. In the Court’s view, such an approach is in line with the principle of subsidiarity on which Protocol No. 16, like the Convention itself, is based. 50.     The Constitutional Court has been requested to review the constitutionality of Article 300.1 of the 2009 CC in the light of Articles 72, 73, 78 and 79 of the 2015 Constitution (see paragraph 28 above). These provisions of the Constitution contain in essence the principles of non ‑ retroactivity of criminal law (Article 72), the applicability of the more lenient law (Article 73), the proportionality of any interference with basic rights and freedoms (Article 78) and the lawfulness and foreseeability of any interference with such rights and freedoms (Article 79). This advisory opinion will inform the Constitutional Court’s own interpretation of the domestic provisions relevant for the case before it. It is thus the task of the Constitutional Court, not that of the Grand Chamber, to interpret Article   300.1 of the 2009 CC and Article 300 § 1 of the former Criminal Code and thereby determine the constitutional compatibility of the pending criminal proceedings. 51.     Finally, in formulating its opinion, the Court will take due account of the written observations and documents submitted by the participants in the proceedings (see paragraphs 6-8 above). Nevertheless, it stresses that its task is not to reply to all the grounds and arguments submitted to it or to set out in detail the basis for its reply; under Protocol No. 16, the Court’s role is not to rule in adversarial proceedings on contentious applications by means of a binding judgment but rather, within as short a time frame as possible, to provide the requesting court or tribunal with guidance enabling it to ensure respect for Convention rights when determining the case before it (see   Advisory opinion P16-2018-001 , cited above, § 34). The first and second questions 52.     The first and second questions asked by the Constitutional Court read as follows: “1.     Does the concept of ‘law’ under Article 7 of the Convention and referred to in other Articles of the Convention, for instance, in Articles 8-11, have the same degree of qualitative requirements (certainty, accessibility, foreseeability and stability)? 2.     If not, what are the standards of delineation?” 53.     The Court does not discern any direct link between the first and second questions and the pending domestic proceedings. 54.     As far as can be seen from the charges brought against Mr   Kocharyan (see paragraph 16 above), there is nothing in the factual context of the case that could be perceived as the exercise of his rights under Articles 8 to 11 of the Convention. 55.     As regards the legal context of the domestic proceedings, the Court finds it difficult to see which questions the Constitutional Court wishes to determine with the help of the Court’s opinion. The Court’s answer to the Constitutional Court’s first and second questions would be of an abstract and general nature, thus going beyond the scope of an advisory opinion as envisaged by Protocol No. 16. In particular, it does not appear possible to reformulate the questions so as to allow the Court to confine its advisory opinion to “points that are directly connected to the proceedings pending at domestic level” (see Advisory opinion P16-2018-001 , cited above, § 26, and paragraph 44 above). In so far as some of the reasons adduced by the Constitutional Court for asking the first and second questions may be understood as addressing questions of legal certainty and foreseeability, including the limits of judicial interpretation in the context of Article 7 of the Convention, these c