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(1 of 1) CASE OF ROHLENA v. THE CZECH REPUBLIC


59552/08 | Judgment (Merits and Just Satisfaction) | Court (Fifth Section) |
18/04/2013
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FIFTH SECTION

CASE OF ROHLENA v. THE CZECH REPUBLIC

(Application no. 59552/08)

JUDGMENT

STRASBOURG

18 April 2013

Referral to the Grand Chamber

09/09/2013

This judgment will become final in the circumstances set out in Article 44 2 of
the Convention. It may be subject to editorial revision.

In the case of Rohlena v. the Czech Republic,


The European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mark Villiger, President,
Angelika Nuberger,
Ganna Yudkivska,
Andr Potocki,
Paul Lemmens,
Helena Jderblom,
Ale Pejchal, judges,

and Claudia Westerdiek, Section Registrar,


Having deliberated in private on 5 March 2013 and on 26 March 2013,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE

1. The case originated in an application (no. 59552/08) against the Czech


Republic lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (the Convention) by a
Czech national, Mr Petr Rohlena (the applicant), on 4 December 2008.
2. The applicant was represented by Mr J. Kruik, of the Czech Bar. The Czech
Government (the Government) were represented by their Agent, Mr V.A.
Schorm.
3. The applicant complained in particular of the retrospective application of the
criminal law, to his detriment.
4. On 14 November 2011 the Government were given notice of the application.
THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1966 and lives in Brno.


6. On 29 May 2006 the applicant was formally charged by the Brno municipal
prosecutor with having, at least between 2000 and 8 February 2006, repeatedly
physically and mentally abused his wife while drunk. He was alleged to have
subjected her to verbal abuse, hit her on the head with his hand and fist, slapped
her, held her by the throat, tried to strangle her, thrown her against the furniture
or onto the ground, pushed her down stairs and kicked her. He had also hit the
children, gambled away the households money on gaming machines and
smashed the crockery. As a result, his wife had sustained haematomas, bruising
and a fractured nose and had been obliged to seek medical assistance on that
account on 26 June 2000, 18 July 2003 and 8 February 2006. The applicant had
allegedly sought to undermine his wife psychologically in order to control her.
According to the prosecutor, the applicant had thus committed the continuing
offence of abusing a person living under the same roof within the meaning of
Article 215a 1 and 2(b) of the Criminal Code, given that his conduct prior to
the introduction of that offence on 1 June 2004 had amounted to the offence of
violence against an individual or group of individuals under Article 197a of the
Criminal Code and assault occasioning bodily harm under Article 221 of the Code.

7. On 18 April 2007 the Brno Municipal Court found the applicant guilty of the
offence of abusing a person living under the same roof, committed at least
between 2000 and 8 February 2006 and described in the same manner as in the
bill of indictment. It sentenced him to a suspended term of two and a half years
imprisonment and placed him on probation for five years. He was also placed
under supervision and ordered to undergo treatment for alcohol dependency. The
court based its decision on the statements given by the applicant, the victim (his
wife) and several witnesses and on documentary evidence and expert reports. It
adopted the classification of the offence as abuse of a person living under the
same roof within the meaning of Article 215a 1 and 2(b) of the Criminal Code
as in force from 1 June 2004 onwards, taking the view that this classification also
extended to the acts committed by the applicant prior to that date since they had
been punishable at the material time, amounting at least to the offence of
violence against an individual or group of individuals under Article 197a of the
Criminal Code. Lastly, the court considered that, owing to the duration of the
conduct in question, the offence committed in the present case presented a
relatively high degree of danger which justified a sentence ranging from two to
eight years imprisonment under paragraph 2 of Article 215a of the Criminal
Code. Taking into consideration the extenuating circumstances (in particular the
fact that the applicant had confessed and that he had no previous convictions), it
imposed a suspended sentence situated at the lower end of the range.
8. On 6 September 2007 the Brno Regional Court dismissed an appeal by the
applicant in which he contested the facts as established by the Municipal Court
and the unilateral assessment of the evidence. The Regional Court found no
defects in the previous proceedings and considered that the classification of the
applicants conduct was in conformity with the provisions of the Criminal Code.
9. On 21 February 2008 the Supreme Court dismissed as manifestly ill-founded
an appeal on points of law lodged by the applicant in which he alleged that the
trial court had applied Article 215a of the Criminal Code even to his conduct prior
to 1 June 2004, when the offence of abuse had not yet existed in domestic law.
On this point the Supreme Court noted, referring to its ruling Tzn 12/93 of 8
December 1993, that where, as in the case at hand, the offence was a continuing
one which was considered to constitute a single act, its classification in criminal
law had to be assessed under the law in force on completion of the last
occurrence of the offence. That law therefore also applied to the earlier assaults,
provided that these would have amounted to criminal conduct under the previous
law. In the instant case the Supreme Court considered that the applicants
conduct prior to the amendment of the Criminal Code on 1 June 2004 had
amounted at least to an offence punishable under Article 197a or Article 221 1
of the Criminal Code.
10. On 10 June 2008 the Constitutional Court dismissed as manifestly ill-founded
a constitutional appeal lodged by the applicant in which he complained that the
proceedings had been unfair and that the Criminal Code had been applied
retrospectively, to his detriment. Referring to the ruling of the Supreme Court and
to its relevant case-law, the Constitutional Court held that the decisions given by

the courts in the present case had been logical and coherent and had not had
any retrospective effect prohibited by the Constitution.
11. As the applicant committed another offence while on probation and did not
undergo treatment for his alcohol dependency, he was required to serve the
prison sentence imposed by the judgment of 18 April 2007. He has been in prison
since 3 January 2011.
II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Criminal Code (Law no. 140/1961) as in force until 31 December 2009

12. Under Article 89 3, a continuing offence comprised different acts driven by


the same intent which constituted the same offence and were linked by virtue of
being carried out in an identical or similar manner, occurring close together in
time and pursuing the same aim.
13. Article 197a 1 dealt with the offence of violence against an individual in the
form of a threat to kill the person concerned or cause him or her bodily harm or
other serious harm. The offence was punishable by a term of imprisonment of up
to one year or by a fine. Paragraph 2 provided that any person committing the
offence in question against witnesses, experts or interpreters in connection with
the performance of their duties was liable to a sentence of up to two years
imprisonment.
14. Article 215a, which came into force on 1 June 2004, introduced into the
Criminal Code the offence of abusing a person living under the same roof. Under
paragraph 1, the offence carried a sentence of up to three years imprisonment.
According to paragraph 2, the perpetrator of such an offence faced between two
and eight years imprisonment if (a) he or she acted in a particularly brutal
manner or committed the offence against several persons or (b) he or she
continued the conduct in question over a lengthy period.
15. Article 221 1 made the offence of assault with intent to cause bodily harm
punishable by a prison term of up to two years. Paragraph 2 provided for a prison
term ranging from one to five years where, among other factors, the perpetrator
caused serious bodily harm to the victim; under paragraph 3, where the
perpetrators conduct resulted in death, he or she was liable to a prison sentence
of between three and eight years.
B. Legal literature and case-law of the Supreme Court

16. The Government noted that, according to the legal literature, a continuing
offence was considered to constitute a single act; when one of the elements
referred to in Article 89 3 of the Criminal Code was absent, the offence in

question was characterised as cumulative. According to the legal literature and


the settled case-law of the Supreme Court (decisions published in the Reports of
Judicial Decisions and Opinions under the numbers 103/1953, 44/1970 and
7/1994; decisions nos. 3 Tz 155/2000, 3 Tdo 1115/2003, 5 Tdo 593/2005, 11 Tdo
272/2007 and 3 Tdo 1431/2006), a continuing offence came to an end on
completion of the last occurrence of the offence. Accordingly, a continuing
offence was considered to be caught by the new legislation provided that at least
some of the punishable acts had been committed after the entry into force of the
new law and that the previous acts had constituted an offence at the time they
were committed, even if that offence carried a lighter sentence.
THE LAW

I. ALLEGED VIOLATION OF ARTICLE 7 1 OF THE CONVENTION

17. The applicant complained of the retrospective application of the Criminal


Code in his case, pointing out that he had been convicted of a continuing offence
of abusing a person living under the same roof which, according to the courts,
encompassed his conduct even before that offence had been introduced into the
law. He also noted that the courts had not examined the offences punishable
before that date under Articles 197a and 221 1 of the Criminal Code. He relied
in that regard on Article 7 1 of the Convention, which provides:
No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence under national or
international law at the time when it was committed. Nor shall a heavier penalty
be imposed than the one that was applicable at the time the criminal offence was
committed.

18. The Government contested that argument.


A. Admissibility

19. The Court notes that this complaint is not manifestly ill-founded within the
meaning of Article 35 3 (a) of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits

1. The parties submissions

20. The applicant emphasised that, for different occurrences of an offence to be


considered as a continuing offence within the meaning of Article 89 3 of the
Criminal Code, they had to be linked from a subjective and an objective
viewpoint; in the absence of such a link, the offence was considered as
cumulative. In his view, the domestic authorities should not have characterised
his conduct as a continuing offence, as the assaults had not been premeditated
or driven by the same intent, nor had they occurred close together in time; they
should therefore have been treated as repetitions of the offence. Furthermore,
the ingredients of the offences defined in Articles 197a and 221 of the Criminal
Code had at no point been made out by the courts.
21. While conceding that the courts had based their decisions in the instant case
on the interpretation given to the concept of a continuing offence in the domestic
case-law and legal literature, the applicant contested the effects of that
interpretation, which led to actual retrospective application of the law. In his view,
it was illogical to argue that an offence could begin and continue before it had
even been constituted (that is, in the present case, before it was introduced into
the Criminal Code on 1 June 2004). Accordingly, acts committed before the entry
into force of the new law and which had not previously amounted to an offence
could not form part of the constituent elements of an offence defined by that new
law.
22. The applicant also objected to the comparison of sentences by the
Government. In his view, the fact that his sentence had been suspended was
irrelevant and it was untrue that, if the courts had not applied the concept of a
continuing offence, the sentence he received would have been just as harsh if not
more so. In such circumstances he could not have been considered to have
committed several offences, as the Government assumed, and the courts would
have had to take account of the same extenuating circumstances. Furthermore,
his conduct prior to 1 June 2004 would not have comprised the constituent
elements of the offences defined by Articles 197a and 221 and would have had to
be classified simply as a regulatory offence. Taken separately, his actions
committed between 1 June 2004 and 8 February 2006 would not then have
fulfilled the conditions, in terms of their intensity or their duration, required to
justify the application of paragraph 2 of Article 215a of the Criminal Code;
instead, paragraph 1, which provided for a maximum three-year sentence, would
have been applied.
23. The Government contested the applicants argument and pointed out that
the Court was not called upon to review the findings of the domestic courts as to
whether the applicant had committed an offence and whether it had been a
continuing offence. In the Governments view, the applicant was simply
contesting the courts interpretation of the Criminal Code, although that
interpretation had been based on settled case-law. In that connection the
Government pointed out that the courts case-law formed part of the concept of
law referred to in Article 7, which embodied the principle that only the law
could define a crime and prescribe a penalty (the Government cited Achour v.
France [GC], no. 67335/01, 41-42, ECHR 2006-IV). They also noted that Article

7 did not prohibit the application of a subsequent law to the acts at issue,
provided that those acts had also amounted to an offence under the law in force
at the time they were committed and that the law in question had been
foreseeable and accessible (the Government cited G. v. France, 27 September
1995, 25-26, Series A no. 325-B). The Government also referred to the Courts
view according to which the principle of legal certainty required that, where a
person was accused of a continuing offence, both the bill of indictment and the
judicial decision should make clear that the ingredients of a continuing offence
were present (they cited Ecer and Zeyrek v. Turkey, nos. 29295/95 and 29363/95,
33, ECHR 2001-II).
24. With regard to the present case the Government submitted that the domestic
authorities, acting in accordance with the provisions of the law, the settled caselaw of the Supreme Court and the legal literature, had consistently held that the
applicants conduct between 2000 and February 2006 comprised all the
ingredients of a continuing offence under Article 89 3 of the Criminal Code, that
is, it constituted a single act which had been perpetrated when the last assault
had ended, namely in February 2006. Accordingly, the authorities had applied the
Criminal Code as in force on that date, complete with Article 215a, which had
been introduced on 1 June 2004. From the standpoint of domestic law, therefore,
there had been no retrospective application of the criminal law. The Government
observed in that regard that it had been possible to apply the new provision only
because the applicants actions had also constituted offences prior to June 2004
under Articles 197a and 221 of the Criminal Code, as noted by the prosecutor and
the courts (they cited, by contrast, Veeber v. Estonia (no. 2), no. 45771/99, 3738, ECHR 2003-I).
25. As to the severity of the sentence, the Government noted that, while it was
not possible to speculate on the sentence that might have been imposed on the
applicant under a different statutory provision, it was possible to compare, on the
one hand, the sentence actually imposed on him and the maximum sentence he
would have faced under the old version of the Criminal Code, or rather under the
old and new versions combined. Whereas under Article 215 1 and 2(b) he had
risked a sentence of between two and eight years imprisonment, he had actually
been sentenced to a suspended term of two and a half years imprisonment. In
that connection the Government conceded that, under Articles 197a and 221 1
of the Criminal Code as in force prior to 1 June 2004, the applicant would have
faced a slightly less severe sentence, namely a maximum of two years
imprisonment. Firstly, however, the applicants sentence had been suspended
and, secondly, it was necessary to take into consideration the fact that he had
continued his conduct after June 2004. Accordingly, if the courts had not applied
the concept of a continuing offence in the present case they would have had to
examine the applicants conduct prior to 1 June 2004 on the basis of Articles
197a or 221 1 of the Criminal Code and his conduct after that date on the basis
of 215a 2 of the Code. His actions would then have been treated as cumulative
offences attracting an aggregate sentence under the provision of the Criminal
Code relating to the offence which carried the heaviest sentence, namely Article
215a. Accordingly, even in that hypothetical situation the sentence imposed on

the applicant would have been just as severe as that imposed in the present
case, if not more so.
26. Lastly, the Government observed that both before and after June 2004 the
applicant could and should have been aware of the criminal nature of his conduct
and the fact that it constituted a continuing offence, given that the relevant
statutory provisions and case-law had been sufficiently comprehensible and
accessible. Hence, he could have foreseen that he ran the risk of the penalty laid
down in Article 215a of the Criminal Code.
2. The Courts assessment

27. The Court reiterates that Article 7 of the Convention is not confined to
prohibiting the retrospective application of the criminal law to an accuseds
disadvantage: it also embodies, more generally, the principle that only the law
can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege)
and the principle that the criminal law must not be extensively construed to an
accuseds detriment. From these principles it follows that an offence must be
clearly defined in the law. This requirement is satisfied where the individual can
know from the wording of the relevant provision and, if need be, with the
assistance of the courts interpretation of it, what acts and omissions will make
him criminally liable (see Veeber v. Estonia (no. 2), no. 45771/99, 31, ECHR
2003-I).
28. Hence, it is not the Courts task to rule on the applicants individual criminal
responsibility, that being primarily a matter for the assessment of the domestic
courts, but to verify that at the time when an accused person performed the act
which led to his being prosecuted and convicted there was in force a legal
provision which made that act punishable, and that the punishment imposed did
not exceed the limits fixed by that provision (see Streletz, Kessler and Krenz v.
Germany [GC], nos. 34044/96, 35532/97 and 44801/98, 51, ECHR 2001-II, and
Achour v. France [GC], no. 67335/01, 43, ECHR 2006-IV).
29. When speaking of law Article 7 alludes to the very same concept as that to
which the Convention refers elsewhere when using that term, a concept which
comprises statutory law as well as case-law and implies qualitative requirements,
notably those of accessibility and foreseeability (see Kokkinakis v. Greece, 25 May
1993, 40-41, Series A no. 260-A, and Cantoni v. France, 15 November 1996,
29, Reports of Judgments and Decisions 1996-V). Indeed, in the Convention
States, the progressive development of the criminal law through judicial lawmaking is a well-entrenched and necessary part of legal tradition (see Kruslin v.
France, 24 April 1990, 29, Series A no. 176-A). Accordingly, Article 7 of the
Convention cannot be read as outlawing the gradual clarification of the rules of
criminal liability through judicial interpretation from case to case, provided that
the resultant development is consistent with the essence of the offence and could
reasonably be foreseen (see Streletz, Kessler and Krenz, cited above, 50).

30. With regard to the facts of the present case, the Court notes that the
applicant was convicted under Article 215a 2 of the Criminal Code, as in force
since 1 June 2004, of acts committed between 2000 and 2006 which, in the
authorities view, constituted a continuing offence. The applicant complains that
the criminal law was construed extensively, to his detriment, alleging not only
that his acts prior to 1 June 2004 did not constitute the offence punishable under
Article 215a of the Criminal Code at the time they were committed, but also that
they would not have been punishable under the version of the Criminal Code in
force before that date.
31. The Court observes that the application of the version of the Criminal Code in
force after 1 June 2004 to acts committed after that date is not at issue in the
instant case. The question to be determined is whether the extension of the law
to acts committed prior to that date infringed the guarantee set forth in Article 7
of the Convention.
32. In this context the Court reiterates that, by definition, a continuing offence
is a type of crime committed over a period of time. When an accused is charged
with a continuing offence, the principle of legal certainty requires that the acts
which go to make up that offence, and which entail his criminal liability, be
clearly set out in the bill of indictment. Furthermore, the decision rendered by the
domestic court must also make it clear that the accuseds conviction and
sentence result from a finding that the ingredients of a continuing offence have
been made out by the prosecution (see Ecer and Zeyrek v. Turkey, nos. 29295/95
and 29363/95, 33, ECHR 2001-II).
33. In the instant case the Court notes that, according to the Government, the
offence of which the applicant was accused was to be regarded as a continuing
offence under Article 89 3 of the Criminal Code. In that connection it notes that,
in the bill of indictment of 29 May 2006, the prosecutor referred to acts
committed by the applicant at least between 2000 and 8 February 2006 and
indicated the dates on which the applicants wife had had to seek medical
assistance following the assaults by the applicant. Classifying those acts as a
continuing offence of abusing a person living under the same roof within the
meaning of Article 215a 1 and 2(b) of the Criminal Code, the prosecutor noted
that the applicants conduct prior to the introduction of that offence on 1 June
2004 could be considered to amount to the offences defined by Articles 197a and
221 of the Code. The domestic courts agreed with this assessment, finding the
applicant guilty of the acts committed between 2000 and 8 February 2006.
Referring to its case-law, the Supreme Court observed in particular that in the
case of a continuing offence considered to constitute a single act, the criminal
nature of that act had to be assessed under the law in force on completion of the
last occurrence of the offence, and that the law in question applied to the earlier
occurrences provided that they would have been classified as criminal acts under
the previous law. In the instant case the Supreme Court therefore considered that
the Criminal Code as in force at 8 February 2006 should be applied to all the
applicants actions and that the classification provided for in Article 215a, which
had entered into force on 1 June 2004, should be adopted, given that the

applicants actions prior to that amendment of the Criminal Code had been
punishable under Articles 197a or 221 1 of the Code. On the last point, the
Court observes that it is not its task to take the place of the domestic courts in
making such an assessment.
34. The Court further notes that, in any system of law, it is for the domestic
courts to interpret the provisions of substantive criminal law in order to
determine, by reference to the structure of each offence, the date on which, all
the ingredients of the offence being present, a punishable act was committed.
The Convention may not act as a bar to this kind of judicial interpretation,
provided that the conclusions reached by the domestic courts are reasonably
foreseeable within the meaning of the Courts case-law (see Previti v. Italy (dec.),
no. 45291/06, 8 December 2009, 283).
35. In the present case, having concluded that the ingredients of a continuing
offence within the meaning of Article 89 3 of the Criminal Code had been made
out and that the offence in question was therefore deemed to have been
committed when the last of the applicants assaults on his wife took place, that
is, on 8 February 2006, the courts examined the case on the basis of the law
which was applicable on that date and which had been in force since 1 June 2004.
The Court which is not competent to substitute its own assessment for that of
the domestic courts as to whether the applicants conduct was to be
characterised as a continuing offence under domestic law therefore accepts
that, from the standpoint of Czech law, this did not constitute retrospective
application of the criminal law. It further notes that this interpretation of the
concept of a continuing offence as defined by Article 89 3 of the Criminal Code
was based on the clear and settled case-law of the Supreme Court and the views
expressed in the legal literature. In so far as the applicant complained of the
effects of that interpretation, which in his view resulted in the law actually being
applied retrospectively, the Court must determine whether, in the present case,
those effects were in keeping with the substance of the offence and were
reasonably foreseeable (see, mutatis mutandis, Dragotoniu and Militaru-Pidhorni
v. Romania, nos. 77193/01 and 77196/01, 37, 24 May 2007).
36. In the Courts view, the interpretation adopted by the courts in the instant
case was not per se unreasonable, given that a continuing offence by definition
extends over a certain period and that it was not arbitrary to consider that the
offence in question ceased at the time when the last assault was carried out. The
Court notes in that connection that the domestic courts were careful to specify
that they were applying the law in force at the time of commission of the offence;
it further notes the Constitutional Courts finding to the effect that the courts
could not be said to have applied the criminal law retrospectively.
37. The Court also observes that the courts did not punish isolated acts
committed by the applicant but his conduct extending continuously over the
period in question; on 26 June 2000, 18 July 2003 and 8 February 2006 this
conduct led to particularly serious consequences, with the applicants wife being
obliged to seek medical assistance for her injuries. Moreover, the Czech
authorities observed that the applicants actions had at all times been punishable

as criminal offences and not merely as regulatory offences as he claimed. Hence,


according to the prosecutor, the applicants conduct prior to 1 June 2004 had
amounted to the offence of violence against an individual or group of individuals
within the meaning of Article 197a of the Criminal Code and that of assault
occasioning bodily harm within the meaning of Article 221 of the Criminal Code;
the Supreme Court took the view that it had amounted at the material time at
least to an offence under Article 197a or Article 221 1 of the Code.
38. Lastly, it should be observed that the applicant has not alleged that the
courts interpretation in this case was contrary to established case-law or that it
could not have been foreseen, if necessary with the appropriate legal advice
(see, mutatis mutandis, Previti, cited above, 285). In these circumstances the
Court considers that the relevant statutory provisions, accompanied by the
interpretative case-law, were such as to enable the applicant to regulate his
conduct. It points out in that connection that the case-law in question was
developed prior to the date on which the applicant committed the first assault on
his wife (see, conversely, Veeber, cited above, 37). The applicant could have
presumed that by persisting with his conduct after 1 June 2004, the date on
which the offence of abusing a person living under the same roof was introduced
into the Criminal Code, he ran the risk of being convicted of a continuing offence
and thus receiving the sentence provided for by the law in force at the time he
committed the last assault. He was thus in a position to foresee the legal
consequences of his actions and to adapt his conduct accordingly.
39. There has therefore been no violation of Article 7 of the Convention.
II. OTHER ALLEGED VIOLATIONS

40. Relying on Articles 6 1 and 13 of the Convention, the applicant alleged that
the criminal proceedings against him had been unfair and that no effective
remedy had been available to him.
41. The Court observes that the applicant exercised all the remedies available
under domestic law and that his case was examined at three levels of jurisdiction
and by the Constitutional Court. The courts, before which the applicant was able
to present all the arguments he considered relevant to his defence, replied to his
objections by means of decisions which were duly reasoned and were not
arbitrary.
42. Having regard to all the evidence in its possession, and in so far as it has
jurisdiction to examine the allegations, the Court therefore finds no appearance
of a breach of the rights and freedoms guaranteed by the Convention or its
Protocols.
43. It follows that this part of the application is manifestly ill-founded and must
be rejected pursuant to Article 35 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning Article 7 1 of the Convention admissible


and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 7 1 of the Convention.

Done in French, and notified in writing on 18 April 2013, pursuant to Rule 77 2


and 3 of the Rules of Court.
Claudia Westerdiek
Registrar

Mark Villiger

President

In accordance with Article 45 2 of the Convention and Rule 74 2 of the Rules of


Court, the separate opinion of Judge Lemmens is annexed to this judgment.
M.V.
C.W.

CONCURRNG OPINION OF JUDGE LEMMENS

(Translation)

1. Like my colleagues, I concluded that there had been no violation of Article 7


1 of the Convention in the present case. However, I arrived at that conclusion by
means of slightly different reasoning.
2. I think it is worth reiterating briefly the key facts of the case. The applicant was
convicted of a series of acts committed between 2000 and 8 February 2006 (see
paragraph 6). Those acts could have been classified as violence against an
individual or group of individuals under Article 197a of the Criminal Code and
assault occasioning bodily harm under Article 221 of the same Code (these
provisions were applicable throughout the whole of the period in question), but
also as abusing a person living under the same roof within the meaning of Article
215a of the Code. The last of these provisions, which entered into force on 1 June
2004, was applicable only for part of the period in issue.
The domestic courts took the view that the acts in question amounted to a
continuing offence within the meaning of Article 89 3 of the Criminal Code.
They considered that the offence came within the ambit of the law in force when
the last criminal act was committed. Accordingly, the Brno Municipal Court,

followed by the Brno Regional Court, found the applicant guilty of abusing a
person living under the same roof within the meaning of Article 215a of the
Criminal Code and imposed the sentence provided for by Article 215a 2(b). That
sentence was more severe than those provided for by Articles 197a and 221 of
the Criminal Code.
It should be observed that the Supreme Court explicitly found that the new law,
that is to say, Article 215a 1 and 2(b) of the Criminal Code, applied to all the
acts making up the continuing offence, including those committed before 1 June
2004, since the latter had been punishable under the old provisions, namely
Articles 197a and 221 of the Criminal Code (see paragraph 9).
3. My colleagues examined the applicants complaint chiefly from the standpoint
of the general principle that only the law can define a crime and prescribe a
penalty. They sought to ascertain whether the manner in which the courts
concerned had interpreted Article 89 3 of the Criminal Code in the instant case
had been reasonably foreseeable.
In my humble opinion, that is not the problematic issue. The applicant
complained of what he saw as the retrospective application of Article 215a of the
Criminal Code (see paragraph 17). Hence, in my view, the main focus of the
Courts examination should have been the prohibition of retrospective application
of the criminal law to the detriment of the accused, which is one specific aspect
of the general principle outlined above. The fact that the domestic courts had
found the above-mentioned statutory provision to be applicable on the basis of a
particular interpretation of Article 89 3 of the Criminal Code was only a
secondary aspect of the case.
4. In principle, the retrospective application of a new criminal law which is
harsher than the previous law is prohibited by Article 7 1 of the Convention.
This rule does not preclude the application of the new law to a genuine
continuing offence, that is to say, an offence characterised by the existence of
an ongoing situation in breach of the law. If the continuing offence came within
the ambit of the old law when it began, and continued under the new law, it is
the latter which applies, even if it is harsher than the previous law. It is even
debatable whether such a case really constitutes retrospective application of the
new law.
However, the offence at issue in the present case cannot be characterised as a
continuing offence in the sense referred to above. In reality, it was what one
might describe as a continued offence, in that it comprised the repetition of a
number of instantaneous offences linked by their identical nature and purpose
and committed within a relatively short space of time (see Article 89 3 of the
Criminal Code). Applying the new law to all the acts constituting a continuing
offence in this second sense amounts to partly retrospective application of the
law in question since, at the time the first criminal acts were committed, the new
law had not yet entered into force.

It seems to me that my colleagues judged the application of the new law to be


permissible for the sole reason that the applicant could have foreseen that by
continuing his conduct after 1 June 2004 he ran the risk of being convicted of a
continuing offence and of receiving the sentence provided for by the law in force
when the last criminal act was committed (see paragraph 38).
This reason does not appear to me to be sufficient. Besides, the domestic courts
took a stricter approach, since they examined whether the acts committed before
1 June 2004 fell within the ambit of the criminal law in force at the time they were
committed (in this case Articles 197a and 221 of the Criminal Code). While it is
true that my colleagues referred to the national authorities finding in that regard
(see paragraph 37), they do not appear to have made it a condition of their
acceptance of the retrospective application of the new law.
For my part, I believe that the test to be applied is even stricter than that applied
by the domestic courts. In my view, it was not sufficient for the acts committed
before 1 June 2004 to have been punishable under any law in force at the time (a
necessary condition according to the judgment in Veeber v. Estonia (no. 2), no.
45771/99, 38, ECHR 2003-I). To my mind those acts also had to constitute
offences under the new law, even though it had not yet been in force at the time
they were committed. In concrete terms, for the application of Article 215a 1
and 2(b) of the Criminal Code to the acts committed before 1 June 2004 to be
compatible with Article 7 1 of the Convention, it was not enough for the acts in
question to be punishable under Articles 197a and 221 of the Criminal Code; they
also had to qualify as abusing a person living under the same roof within the
meaning of Article 215a 1 and 2(b) of the Criminal Code.
It seems to me that neither the domestic courts nor the Court expressly sought to
determine whether this last condition had been met. We can nevertheless
conclude, in view of the description of the various acts of violence in issue in the
present case, that they were all capable of being classified as abusing a person
living under the same roof within the meaning of Article 215a 1 and 2(b) of the
Criminal Code.
It is for that reason that I subscribed to my colleagues conclusion that Article 7
1 of the Convention had not been breached in this case.