Information Note on the Court’s case-law No. 85
April 2006
Achour v. France [GC] - 67335/01
Judgment 29.3.2006 [GC]
Article 7
Article 7-1
Nullum crimen sine lege
Sentence subject to rules on recidivism as a result of the application of a new law: no violation
Facts: On 16 October 1984 the Lyons Criminal Court sentenced the applicant to three years’ imprisonment for drug trafficking. He finished serving his sentence on 12 July 1986. On 1 March 1994 the provisions of Article 132-9 of the new Criminal Code came into force, amending the laws on recidivism so that where a person who had already been convicted with final effect of a serious crime or other major offence punishable under the law by ten years’ imprisonment committed, within ten years of the expiry of the previous sentence or of the time allowed for its enforcement, a further offence carrying a similar sentence, the maximum sentence and fine that could be imposed was to be doubled. On 7 December 1995 the applicant was arrested in the course of a judicial investigation into drug trafficking, and a search led to the discovery at his home address of several kilograms of cannabis. On 11 December 1995 he was placed under formal investigation and detained pending trial. On 14 April 1997 the Lyons Criminal Court found him guilty of a drug offence and sentenced him to eight years’ imprisonment, also ordering his exclusion from French territory for ten years. On 25 November 1997, applying Article 132-9 of the Criminal Code, the Lyons Court of Appeal held that the applicant was subject to the rules on recidivism and increased his sentence to twelve years. The applicant appealed on points of law, complaining, among other things, that the harsher provisions of the new legislation on recidivism had been applied retrospectively whereas the applicable period in his case had expired on 12 July 1991. The Court of Cassation dismissed his appeal on the ground that where a law introduced new rules on recidivism, for them to apply immediately it was sufficient for the offence constituting the second component of recidivism to have been committed after the law’s entry into force.
Law: Article 7 – Although the Court clearly had to examine the rules on recidivism and the way in which they had been applied in the circumstances of the case, it considered that matters relating to the existence of such rules, the manner of their implementation and the reasoning behind them fell within the power of the High Contracting Parties to determine their own criminal policy, which was not in principle a matter for it to comment on. In the present case it had to ascertain, in particular, whether the relevant statutory provision on recidivism, read in the light of the accompanying interpretative case-law, had satisfied the requirements of accessibility and foreseeability at the material time. In that connection, Article 132-9 of the new Criminal Code provided that the maximum sentence and fine that could be imposed were to be doubled in the event of recidivism and that the applicable period was no longer five years, as prescribed by the former legislation, but ten years from the expiry of the previous sentence or of the time allowed for its enforcement. As the new statutory rules had come into force on 1 March 1994, they had been applicable when the applicant had committed fresh offences in 1995, so that he had been a recidivist in legal terms as a result of those offences. In reply to the applicant’s argument that it had been impossible for him to have been treated as a recidivist between 13 July 1991 and 1 March 1994 and that the relevant period had consequently expired with final effect, the Court noted that his 1984 conviction had not been expunged and remained in his criminal record and that the expiry of the relevant period had not afforded him any right to have his first offence disregarded. Furthermore, the Court of Cassation had taken a clear and consistent position for more than a century to the effect that where a law introduced new rules on recidivism, for them to apply immediately it was sufficient for the offence constituting the second component of recidivism to have been committed after the law’s entry into force. Accordingly, there was no doubt that the applicant could have foreseen that by committing a further offence before the expiry of the statutory ten-year period on 13 July 1996, he had run the risk of being convicted as a recidivist and of receiving a prison sentence and/or a fine that was liable to be doubled. He had thus been able to foresee the legal consequences of his actions and to adapt his conduct. The applicant’s complaint did not raise any issues in terms of the retrospective application of the law since the case merely concerned successive statutes designed to apply solely with effect from their entry into force. Admittedly, the French courts had subsequently taken the applicant’s initial conviction from 1984 into consideration, but such an approach, made possible by the fact that that conviction remained in his criminal record, was not in breach of the Convention, seeing that the offence for which he had been prosecuted and punished had taken place after the entry into force of Article 132-9 of the new Criminal Code. The practice of taking past events into consideration was to be distinguished from the notion of retrospective application of the law stricto sensu. Accordingly, the sentence imposed on the applicant, who had been found guilty and deemed to be a recidivist in the proceedings in issue, had been applicable at the time when the second offence was committed, pursuant to a “law” which had been accessible and foreseeable as to its effect.
Conclusion: no violation (sixteen votes to one).
© 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
Full & Egal Universal Law Academy