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

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P16-2019-001 29.5.2020 [GC] Legal summary Article 7 Nullum crimen sine lege Retroactivity Advisory opinion concerning the use of the “blanket reference” or “legislation by reference” technique in the definition of an offence and standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law Background – In 2018 the former President of Armenia, Mr R. Kocharyan, was charged with overthrowing constitutional order essentially on account of having declared a state of emergency and used the armed forces to quell post-election protests in February-March 2008. At the material time, acts aimed at the violent overthrow of the constitutional order were punishable under Article   300 of the former version of the Criminal Code (CC) as part of the offence of “usurpation of power”. In 2009 the CC was amended and the definition of the offences of “usurpation of power” (Article   300) and “overthrowing the constitutional order” (Article   300.1) was modified, the penalty for both remaining the same. Mr Kocharyan was charged under Article   300.1 of the 2009 CC, which defined the offence as 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”. The previous version was broader in that any action aimed at overthrowing the constitutional order was punishable, whereas under the 2009 version, only the de facto elimination of specified fundamental principles of the Constitution was punishable. In other respects, Article   300 of the former CC was narrower, as it contained an element of violence which was missing from Article   300.1 of the 2009 CC. The first-instance court and Mr Kocharyan lodged applications with the Constitutional Court, which requested that the European Court give an advisory opinion on the questions concerning the relevant requirements of Article   7 of the Convention. Opinion – Preliminary considerations – First, the questions submitted were, at least in part, broad and very general. The Court, however, had the power to reformulate and combine them, having regard to the specific factual and legal circumstances in issue in the domestic proceedings. Moreover, even though the Panel had accepted the request for an advisory opinion as a whole, that could not deprive the Grand Chamber of the possibility of employing the full range of powers, including its power in relation to the Court’s jurisdiction. Nor could the Panel’s decision preclude it from assessing, on the basis of the original request, the observations received and all other material before it, whether each of the submitted questions fulfilled the requirements of Article   1 of Protocol No.   16. Secondly, the proceedings before the Constitutional Court were, by their nature, preliminary. While that did not constitute an obstacle to dealing with the present request, it nevertheless framed the Court’s approach, in particular where, as in the present case, the main proceedings were pending at a very early stage and the relevant facts had not yet been the subject of any judicial determination. In accordance with the principle of subsidiarity, the Court’s advisory opinion would proceed on the basis of the facts as provided by the Constitutional Court and would inform that Court’s own interpretation of the domestic provisions relevant for the case before it, in the light of the requirements flowing from Article   7 of the Convention. In turn, it would be for the first-instance court to apply the answer given by the Constitutional Court to the concrete facts of the case. The first and second questions – “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)? If not, what are the standards of delineation?” The Court did not discern any direct link between those questions and the pending domestic proceedings. The Court’s answer would be of an abstract and general nature, thus going beyond the scope of an advisory opinion as envisaged by Protocol No.   16. Those questions thus did not fulfil the requirements of Article   1 of Protocol No.   16 and could not be reformulated so as to enable the Court to discharge its advisory function effectively and in accordance with its purpose. It could therefore not answer those questions. The third question – “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?” This question referred to the fact that Mr Kocharyan had been accused of an offence, which was defined by the use of the technique of “blanket reference” or “legislation by reference” (i.e. the technique where substantive provisions of criminal law, when setting out the constituent elements of criminal offences, referred to legal provisions outside criminal law). In the case of Article   300.1 of the 2009 CC, that legislative technique had been used to refer to Articles 1 to 5 and 6 §   1 of the Armenian Constitution, which had supreme legal force and were formulated with a higher level of abstraction than the provisions of the Criminal Code. In substance, the Constitutional Court had been asking whether that was compatible with Article   7 of the Convention, and above all with the requirements of clarity and foreseeability. The Court had not yet explicitly ruled on the question of whether the use of the said technique as such was compatible with Article   7. However, as followed from the case-law examples ( Kuolelis and Others v.   Lithuania , Haarde v.   Iceland ), where the criminal law in issue contained references to other areas of law, including the Constitution, the Court had implicitly accepted the use of that technique and determined whether the criminal law referencing a provision of the Constitution and the referenced constitutional provision read together had been sufficiently clear and foreseeable in their application. Due to their high level of abstraction, constitutional provisions were often developed further through acts of lower hierarchical levels, through non-codified constitutional customs and through   jurisprudence. The Court saw no reason to depart from its finding in the Haarde judgment, to the effect that Article   7 of the Convention did not exclude that evidence of existing constitutional practice might form part of the national court’s overall analysis of foreseeability of an offence based on a provision of a constitutional nature. Furthermore, both of the above cases, where the Court had found no breach of Article   7, appeared to indicate that particular caution might be required from professional politicians or high office holders in assessing whether a specific conduct might entail criminal liability. The Court was therefore of the opinion that using the “blanket reference” or “legislation by reference” technique in criminalising acts or omissions was not in itself incompatible with the requirements of Article   7. However, in order to comply with that provision, a criminal law defining an offence by making use of that technique had to be sufficiently precise, accessible and foreseeable in its application. Given that the referenced provision became part of the definition of the offence, both norms (the referencing and the referenced provision) taken together had to enable the individual concerned to foresee, if need be with the help of appropriate legal advice, what conduct would make him or her criminally liable. That requirement applied equally to situations where the referenced provision had a higher hierarchical rank in the legal order concerned or a higher level of abstraction than the referencing provision. The most effective way of ensuring clarity and foreseeability was for the reference to be explicit, and for the referencing provision to set out the constituent elements of the offence. Moreover, the referenced provisions might not extend the scope of criminalisation as set out by the referencing provision. In any event, it was up to the court applying both the referencing provision and the referenced provision to assess whether criminal liability was foreseeable in the circumstances of the case. The fourth question – “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?” Having regard to the context in which the Constitutional Court had been asking its question (i.e. the 2009 amendment of the definition of the offence of overthrowing the constitutional order), the Court’s case ‑ law relating to the reclassification of charges in the event of a succession of criminal laws over the course of time was of particular interest ( G. v.   France , Ould Dah v.   France , Berardi and Mularoni v.   San Marino , Rohlena v.   the Czech Republic [GC]). In such situations, the Court primarily sought to determine, in essence, whether the acts in question had already been punishable under the provisions in force at the time of their commission. Furthermore, it had held that the punishment imposed could not exceed the limits fixed by the provision that had been in force at the time of the commission of the offence. The Court’s case-law did not offer a comprehensive set of criteria for comparing the criminal law in force at the time of commission of the offence and the amended criminal law. Nonetheless, it was possible to draw the conclusion that such comparison had to be carried out by the competent court, not by comparing the definitions or formal classifications of the offence in abstracto , but in concreto , having regard to the specific circumstances of the case. The case of Maktouf and Damjanović v.   Bosnia and Herzegovina [GC] was particularly instructive regarding the application of the method of comparison in concreto in respect of penalties. Even though the principle of concretisation had been developed in cases relating to an amendment of the relevant penalties, the Court considered it should also apply to cases involving a comparison between the definition of the offence at the time of its commission and a subsequent amendment. As pointed out by the Constitutional Court, the definition of the offence of overthrowing the constitutional order in Article   300.1 of the 2009 CC was broader in one respect while it was narrower in another compared to the provision which had been in force at the time of the alleged commission of the offence. Having regard to the considerations set out above, the Court was of the view that the question as to whether the application of the 2009 provision would violate the principle of non-retroactivity contained in Article   7 of the Convention, should not be answered in abstracto , but in concreto , on the basis of the specific circumstances of the case. It would be for the competent domestic courts to compare the legal effects of possible application of both provisions in question. Should they establish either that all constitutive elements of the offence and other conditions for criminality had not been fulfilled under the provision in force at the time of the impugned events, or that the application of the 2009 provision would attract more serious consequences for the accused than the preceding provision, the subsequent 2009 provision could not be considered as more lenient and, consequently, must not be applied in the case. In sum, in order to establish whether, for the purposes of Article   7, a law passed after an offence had allegedly been committed was more or less favourable to the accused than the law that had been in force at the time of the alleged commission of the offence, regard had to be had to the specific circumstances of the case (the principle of concretisation). If the subsequent law was more severe than the law that had been in force at the time of the alleged commission of the offence, it must not be applied.   © 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 To access legal summaries in English or French click   here . For non-official translations into other languages click   here .