CASE OF KOPRIVNIKAR v. SLOVENIA
Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nulla poena sine lege;Retroactivity);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
5. The applicant was born in 1979 and is detained in Dob pri Mirni. 6. On 23 April 1999 the 1999 Amendment to the 1994 Criminal Code entered into force (see paragraph 21 below). 7. On 17 September 2004 the applicant was convicted of robbery by the Ljubljana District Court and sentenced to four years in prison. He began serving his sentence on 7 December 2007 and completed it on 7 December 2011. 8. On 1 November 2008 the 2008 Criminal Code came into force (see paragraph 22 below). 9. On 16 June 2009 the applicant was convicted by the Ljubljana District Court of having paid with a bad cheque and of fraudulent use of a bank card in the period between 19 January and 19 August 2005. He was sentenced to five months’ imprisonment. The judgment became final on 7 October 2009. The applicant started to serve the sentence on 7 December 2011. 10. In the meantime, on 9 April 2009 the Ljubljana District Court found the applicant guilty of murder committed together with another person on 15 September 2002. He was sentenced to thirty years in prison, the maximum penalty provided for under the 1994 Criminal Code applicable at the time at which the offence was committed. The conviction was upheld on appeal by the Ljubljana Higher Court on 9 December 2009 and became final on the same day. 11. On 28 November 2011 the applicant applied to the Ljubljana District Court to have the three prison terms joined in an overall sentence. 12. On 13 January 2012 the Ljubljana District Court, by means of a judgment, joined the three above-mentioned prison sentences, including the one for robbery which the applicant had already completed, in an overall sentence. Applying the 2008 Criminal Code as applicable before the introduction of the 2011 Amendment (see paragraphs 22 and 23 below), the court noted that the applicant should have had an overall sentence imposed on him as the conditions under Article 53 of the 2008 Criminal Code (see paragraph 22 below) had been met but the provision had not been applied in his case. While acknowledging that Article 53 § 2 (2) of the 2008 Criminal Code applied to the case (see paragraph 22 below), the District Court sentenced the applicant to an overall term of thirty years’ imprisonment. In its reasoning, it noted that the principle of the rule of law required, inter alia, that criminal-law provisions be drafted in a clear and precise manner in order to avoid sentences being imposed arbitrarily. It went on to note that the legislation applicable to the present case was unclear, ambiguous and deficient for the following reasons. Although the maximum sentence applicable under the 2008 Criminal Code had been thirty years’ imprisonment and the rules on combining multiple sentences in an overall sentence, enshrined in Article 53 § 2 (2) of the 2008 Criminal Code, provided that the overall sentence must exceed each of the individual sentences, these same rules prescribed a maximum sentence of twenty years. The court took the view that the legislature had not intended to enact legislation enabling those offenders who had been sentenced to thirty years’ imprisonment for one of the offences for which they subsequently had had their sentences joined to benefit from an overall sentence that would have been ten years lower than the highest individual sentence to which the offender had been sentenced. In support of its view, the District Court pointed out that the 1994 Criminal Code (see paragraph 21 below) had provided that in cases where an offender had been due to serve thirty years’ imprisonment along with sentences for other offences, the overall sentence would have consisted only of that term. Therefore, the District Court considered that the legislature had made an obvious error in Article 53 § 2 (2) of the 2008 Criminal Code, which had, however, been rectified in the meantime by the 2011 Amendment. The court found that the latter made the rules on the determination of an overall sentence certain, clear and complete and that “[o]nly the so amended provisions therefore prevent[ed] arbitrary sanctioning of criminal offenders for multiple criminal offences as required by the principle of legality”. 13. The applicant appealed against the judgment, arguing that the District Court’s decision lacked a legal basis and was in breach of the principle of the rule of law and the principle nullum crimen et nulla poena sine lege. He also claimed that the primary method of interpreting legal texts should be semantic interpretation. It was only where that method proved unsatisfactory in determining how a certain rule should be applied that other methods of interpretation should be applied. Lastly, the applicant agreed with the District Court that the provision in question could be regarded as unclear, ambiguous and deficient, but pointed out that any possible ambiguities or deficiencies should not be interpreted to his detriment. 14. On 29 May 2012 the Ljubljana Higher Court rejected the appeal lodged by the applicant and upheld the first-instance judgment, reiterating the lower court’s reasoning. In the Higher Court’s opinion, the District Court had correctly assessed that the legislature had not intended to permit individuals convicted of several offences from benefiting from a lower maximum term of imprisonment than they would have had to serve if they had been convicted of only one of those offences. According to the Higher Court, such an interpretation would lead to a situation “defying the law as well as common sense”. 15. The applicant applied to the Supreme Court for the protection of legality (an extraordinary legal remedy), reiterating his arguments. He also argued that the rule of law was a principle which should not be applied at the courts’ discretion. 16. On 6 December 2012 the Supreme Court by its judgment I Ips 58203/2011 rejected the application for the protection of legality, disagreeing with the applicant that semantic interpretation should take precedence over all other methods of legal interpretation. The Supreme Court referred to the Higher Court’s judgment, pointing out that the latter court’s reasoning evidently showed that the historical interpretation of the rule on combining multiple sentences also had to be taken into account in assessing the aim of the legislature in enacting the provision at issue. That method of interpretation entailed the examination of not only the provision in its original form, as relied on by the applicant, but also the subsequent amendment, which showed the true aim of the provision. In addition, the Supreme Court relied on the systematic interpretation of the rule in question, emphasising that it could not be interpreted entirely separately from the provisions prescribing that individual prison sentences for various criminal offences must be combined to form an overall sentence. Since under the un-amended 2008 Criminal Code a prison sentence could be imposed for a term not shorter than fifteen days and not longer than thirty years, it was not logical that an overall sentence combining several prison terms, one of which was for thirty years, could be ten years lower than the highest individual prison sentence imposed. According to the Supreme Court, the rules on multiple offences were aimed not at reducing the general maximum prison sentence, but at ensuring that the overall length of several sentences did not exceed the general maximum prison sentence, which in the applicant’s case was thirty years. 17. The applicant lodged a constitutional complaint, reiterating that the imposition of an overall sentence of thirty years’ imprisonment contravened Article 53 § 2 (2) of the Criminal Code, which clearly provided that such a sentence could not exceed twenty years. In the applicant’s opinion, the purpose of the provision at issue could be drawn from interpreting it semantically and no additional means of interpretation were therefore required in order to understand the legislature’s intention. 18. On 24 April 2013 the Constitutional Court dismissed the applicant’s complaint, finding that it did not concern an important constitutional question or entail a violation of human rights with serious consequences for the applicant. 19. On 24 March 2015 the applicant was convicted of another murder committed on an undefined date between 30 June and 15 September 2002. For that murder he was sentenced to thirty years’ imprisonment, but a new overall sentence of thirty years was imposed. The latter overall sentence covered the previous overall sentence imposed by the judgment of 13 January 2012 (see paragraph 13 above), another sentence of four months imprisonment, which in the meantime had been imposed on him following a conviction for yet another criminal offence, and the thirty years’ imprisonment imposed by that last judgment of 24 March 2015. An appeal and an application for the protection of legality by the applicant were dismissed, the latter by the Supreme Court on 2 June 2016.