Information Note on the Court’s case-law No. 162
April 2013
Rohlena v. the Czech Republic - 59552/08
Judgment 18.4.2013 [Section V]
Article 7
Article 7-1
Nulla poena sine lege
Conviction for “continuing” offence comprising acts committed before it was introduced in the Criminal Code: no violation
[This case was referred to the Grand Chamber on 9 September 2013]
Facts – The applicant was formally charged with repeatedly physically and mentally abusing his wife while drunk between 2000 and February 2006. In 2007 the court found him guilty of the continuing offence of abusing a person living under the same roof and he was given a suspended sentence of two years and six months’ imprisonment and put on probation for five years. The court found that the offence defined in Article 215a of the Criminal Code as worded since 1 June 2004 had been made out, considering that that definition extended to acts perpetrated prior to that date to the extent that at the time they amounted to another offence, namely, at least that of violence perpetrated against an individual or group of individuals under Article 197a of the Criminal Code. That judgment 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 and that that law also applied to the preceding acts on condition that these would have been criminal acts according to 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.
Law – Article 7: The issue to be determined by the Court was whether the extension of application of the Criminal Code, as worded since 1 June 2004, to acts committed prior to that date had given rise to a violation of the guarantee enshrined in Article 7. The Court – whose task was not to take the place of the domestic courts in examining the question whether the applicant’s acts could be classified as a continuing offence under domestic law – accepted that, under Czech law, there had been no retrospective application of the criminal law. It also observed that the interpretation of the concept of continuing offence defined in Article 89 § 3 of the Criminal Code had been based on clear and established case-law of the Supreme Court and the opinion of academic commentators. In so far as the applicant disputed the effects of that interpretation, which in his view resulted in an actual retrospective effect, the Court had to determine whether, in the present case, those effects were in keeping with the substance of the offence and reasonably foreseeable. The interpretation adopted by the courts in the present case was not in itself unreasonable, given that a continuing offence extended, by definition, over a certain period of time and that it was not arbitrary to consider that it ceased at the time of perpetration of the last assault. The courts had not punished isolated acts by the applicant but his conduct extending continuously over the period in question. Moreover, the Czech authorities had observed that the applicant’s acts had at all times been punishable as criminal offences. Lastly, it should be observed that the applicant had not alleged that the courts’ interpretation in this case was contrary to established case-law or that it had not been foreseeable, having recourse if necessary to appropriate advice. In these circumstances the relevant legal provisions, together with interpretative case-law, were capable of enabling the applicant to regulate his conduct. The Court observed in that connection that the case-law had developed prior to the date on which the applicant had first assaulted his wife. He could have presumed that by continuing his actions after 1 June 2004, when the offence of ill-treating 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 being punished as provided for by the law in force at the time of the last assault. He had therefore been in a position to foresee the legal consequences of his acts and adapt his conduct accordingly.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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