European Court of Human Rights

Information Note on the Court’s case-law No. 181

January 2015

Rohlena v. the Czech Republic - 59552/08

Judgment 27.1.2015 [GC] See: [2015] ECHR 75

Article 7

Article 7-1

Heavier penalty

Nullum crimen sine lege

Conviction for “continuing” offence comprising acts committed before it was introduced in the Criminal Code: no violation

Facts - The applicant was charged with repeatedly physically and mentally abusing his wife between 2000 and February 2006. In 2007 the trial court found him guilty of the continuing offence of abusing a person living under the same roof as defined in Article 215a of the Criminal Code as worded since 1 June 2004. It considered that that definition extended to acts perpetrated prior to that date to the extent that at the time they had amounted to another offence, which was the case here. The conviction was upheld by the appeal court and the Supreme Court.

Referring to its case-law, the Supreme Court observed that where the offence was a continuing one that was regarded as a single act, the criminal nature of that act had to be assessed under the law in force at the time of the last act constituting the offence. That law also applied to the preceding acts on condition that these would have been criminal acts under the preceding law. In the present case the applicant’s acts prior to the amendment of the Criminal Code of 1 June 2004 had amounted to violence against an individual or group of individuals within the meaning of Article 197a of the Criminal Code and assault within the meaning of Article 221 of that Code.

In 2008 the Constitutional Court dismissed as manifestly ill-founded a constitutional appeal lodged by the applicant, considering that the courts’ decisions in his case had not been of a retrospective effect prohibited by the Constitution.

In a judgment of 18 April 2013 (see Information Note 162), a Chamber of the European Court held unanimously that the domestic courts’ decision had not violated Article 7 of the Convention.

Law - Article 7: The applicant had been convicted of a criminal offence under Article 215a of the Criminal Code which had been introduced by virtue of 2004 amendments to that Code also in respect of acts committed before that date. The domestic courts found that a continuous criminal offence was to be considered a single act whose legal classification had to be assessed under the law in force at the time of the completion of the last occurrence of the offence, provided that the acts committed under any previous law would also have been punishable under that law. Thus, Article 215a also applied to the assaults committed by the applicant before 2004 as they had amounted to criminal conduct under the previous law. In interpreting the domestic law, the domestic courts had referred to the concept of a continuing criminal offence, which consisted of individual acts driven by the same purpose, constituting the same offence and linked by virtue of being carried out in an identical or similar manner, which occurred close together in time and pursued the same object. The applicant’s conduct before 1 June 2004 had amounted to punishable criminal offences under domestic law in force at that time and had thus comprised the constituent elements of the Article 215a offence. Thus, holding the applicant liable under that provision also in respect of acts committed before that date had not constituted retroactive application of more detrimental criminal law as prohibited by the Convention.

In these circumstances, and considering also the clarity with which the relevant domestic provisions were formulated and interpreted by the national courts, the applicant had been in a position to foresee that he could be held criminally liable for a continuous offence also as regards the period before 2004, and to regulate his conduct accordingly. Therefore, the offence of which the applicant had been convicted had a basis in the relevant “national ... law at the time when it was committed”, which in turn had defined the offence sufficiently clearly to meet the quality requirement of foreseeability under Article 7 of the Convention.

Finally, the Court rejected the applicant’s argument that the imposition of a penalty under the 2004 had resulted in a more severe penalty than would have otherwise been the case. In fact, nothing indicated that the domestic courts’ approach had had the adverse effect of increasing the severity of the applicant’s punishment. On the contrary, had the acts perpetrated by him prior to 1 June 2004 been assessed separately from those he committed afterwards, the applicant could have received at least the same sentence as the one actually imposed, or even a harsher one.

Conclusion: no violation (unanimously).

(See also Del Río Prada v. Spain [GC], 42750/09, 21 October 2013, Information Note 167; and Maktouf and Damjanović v. Bosnia and Herzegovina [GC], 2312/08 and 34179/08, 18 July 2013, Information Note 165)

 

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