European Court of Human Rights

Information Note on the Court’s case-law No. 176

July 2014

Ashlarba v. Georgia - 45554/08

Judgment 15.7.2014 [Section IV] See: [2014] ECHR 775

Article 7

Article 7-1

Nullum crimen sine lege

Use of undefined colloquial expression in definition of criminal offence: no violation

Facts - In 2005 the Georgian legislature created a series of new offences designed to assist in the fight against organised crime. As part of a wider legislative package Article 223(1) of the Criminal Code was amended to make it an offence to be a member of the “thieves’ underworld” or a “thief in law”. Although neither expression was defined in the Code, they were explained in other legislation that was introduced the same day (Law on Organised Crime and Racketeering). The expressions were also known within Georgian society as referring to the professional criminal underworld and ‘Godfather’ type figures among the criminal elite.

In 2007 the applicant was convicted of being a member of the “thieves’ underworld” under Article 223(1) of the Criminal Code and sentenced to seven years’ imprisonment. In his application to the European Court, he complained under Article 7 of the Convention that that provision was not sufficiently precise or foreseeable to enable him to determine what conduct constituted an offence.

Law - Article 7: The Court reiterated that Article 7 § 1 requires that an offence, and its penalties, must be clearly defined by law. Individuals must be able to know from the wording of the relevant provision what acts and omissions will make them criminally liable.

The applicant had been convicted under Article 223(1) of the Criminal Code of being a member of the “thieves’ underworld”, a term not defined in the Criminal Code itself. The Court noted, however, that the influence exerted in Georgian society by the “thieves’ underworld” was not only confined to the prison sector, but extended to the public at large and in particular vulnerable members of society such as young people. The rationale behind the decision to create specific laws concerning the milieu in question was to allow the State to more effectively combat these dangerous criminal syndicates which not only affected the criminal underworld, but also contaminated many aspects of ordinary public life. Indeed, studies and submissions supplied by the Government on the impact of the “thieves’ underworld” showed that this criminal phenomenon was deeply rooted in society, and that concepts such as “thieves’ underworld” and “thief-in-law” were common knowledge, and widely understood by the public.

Consequently, the offences introduced by Article 223(1) had merely criminalised concepts whose meaning was already well known to the general public. In the Court’s view, the Georgian legislature had opted to use colloquial terms in the legal definitions because it wished to ensure that the essence of the offences would be grasped more easily by the public at large. The Court did not accept that these concepts were entirely foreign to the applicant, especially as he had expressly suggested the contrary in his depositions during the domestic investigations.

Most importantly, Article 223(1) of the Criminal Code was part of a wider legislative package enacted on the same day which included the Law on Organised Crime and Racketeering. Section 3 of that Law comprehensively explained the definitions of terms such as “thieves’ underworld” and “thief-in-law”. When read in conjunction with that Law, Article 223(1) of the Criminal Code conveyed to the ordinary reader all the necessary constituent elements of the two criminal offences relating to the functioning of the “thieves’ underworld”. Accordingly, if not through common knowledge, then by reference to section 3 of the Law on Organised Crime and Racketeering and, if need be, with the assistance of appropriate legal advice, the applicant could easily have foreseen which of his actions would have attracted criminal responsibility under Article 223(1) of the Criminal Code.

Conclusion: no violation (unanimously).

 

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