Information Note on the Court’s case-law No. 125
December 2009
Gurguchiani v. Spain - 16012/06
Judgment 15.12.2009 [Section III]
Article 7
Article 7-1
Heavier penalty
Replacement of a prison sentence on an alien with deportation and exclusion orders: violation
Facts – In 2002 the applicant was sentenced to eighteen months’ imprisonment for an attempted house burglary and was released on licence. The conviction was upheld on appeal. An amparo appeal lodged by the applicant was dismissed by the Constitutional Court in 2004. In the meantime, in 2003, the police administration requested the judge responsible for the enforcement of the judgment against the applicant to issue directions for the applicant’s removal from the country in accordance with the applicable enforcement procedure. The request was accompanied by a decision given in 2002 by a regional arm of central government ordering the administrative removal of the applicant, a Georgian citizen living illegally in Spain, under an Institutional Law of 2000 on the rights and freedoms of foreign nationals in Spain. However, the criminal court decided not to issue removal directions as it found that the enforcement of the sentence imposed by the judgment of 2002 would be more appropriate. An appeal by the public prosecutor was dismissed by the criminal court but upheld on appeal. The applicant’s deportation from Spain, together with a ten-year ban on re-entry, was ordered in 2004. An amparo appeal by the applicant was unsuccessful.
Law – Article 7: The applicant’s deportation and ten-year exclusion from Spain had been authorised by a decision of 2004 in accordance with a new version of an Article in the Criminal Code that had been in force since 2003. According to the new wording, where an illegal immigrant in Spain was given a prison sentence of up to six years, there was an obligation to replace that sentence by deportation, save in exceptional cases. Accordingly, through this legislative amendment, deportation had become the rule and unless there were exceptional circumstances the court’s assessment no longer counted.
The Court therefore had to ascertain what the applicant’s prison “sentence” in 2002 had entailed under domestic law at the material time. It had to determine, in particular, whether the legislation, together with its interpretation in case-law, had fulfilled the conditions of accessibility and foreseeability. In doing so it had to take into account the domestic law as a whole and the manner in which it had been applied at the time. It was noteworthy that according to the new Article of the Criminal Code the replacement of a sentence by deportation had to be stated in the judgment, but this had not been taken into account by the court in examining on appeal the enforcement of the sentence imposed in the judgment of October 2002. It was the relevant Article of the Criminal Code, as applicable in 2002, which had provided for the possibility – there being no obligation – for the court to decide on such a replacement sentence. Moreover, whereas the public prosecutor had sought the applicant’s deportation and exclusion for only four years, the appellate court had decided on a ten-year exclusion, as was provided for by the above-mentioned provision in its new wording under the Institutional Law of 2003. It had to be concluded, therefore, that the replacement of the applicant’s eighteen-month prison sentence by his deportation and ten-year exclusion from Spain, without allowing him to appear before the court and without taking into account any circumstances, but rather by a virtually automatic application of the new wording of Article 89 of the Criminal Code (in force since 2003), had to be regarded as a sentence in the same sense as that originally imposed. In the applicant’s submission it was impossible to say, having regard to the substantive provisions of the Criminal Code, that at the time the offence was committed the replacement of a prison sentence by deportation and a ten-year exclusion could be regarded as established. He had therefore alleged that a heavier penalty had been imposed on him retroactively. In that connection the Court also observed that the new wording of the Article in the Criminal Code had deprived the enforcement judge of the choice, depending on the circumstances of the case, between authorising the deportation of the convicted foreign national and maintaining the prison sentence imposed by the judgment. Moreover, the new provision had also prevented the applicant from being able to appear before the court on the same footing as the public prosecutor, in order to challenge his deportation if he so wished. Lastly, the provision at issue, in its 2003 version, required that the deported foreign national be prohibited from re-entering the country for a period of ten years, thus imposing a much harsher sentence than under the former provision of the Criminal Code, which had provided for deportation and exclusion of between three and ten years, as the court deemed appropriate.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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