Information Note on the Court’s case-law No. 167
October 2013
Varvara v. Italy - 17475/09
Judgment 29.10.2013 [Section II]
Article 7
Article 7-1
Nulla poena sine lege
Imposition of penalty in the form of confiscation order despite termination of criminal proceedings: violation
Facts – Criminal proceedings were instituted against the applicant for unlawful land development. Many years later, in 2006, a court of appeal discontinued the proceedings on the grounds that prosecution of the offence had become time-barred in 2002, but ordered the confiscation of the land and buildings concerned.
Law – Article 7: In the Sud Fondi case the Court had found that the enforcement of a confiscation order despite the applicant companies’ acquittal had been arbitrary, devoid of any legal basis and in breach of Article 7 of the Convention. In the present case the proceedings against the applicant had been discontinued on the grounds that prosecution of the offence of unlawful land development had become time-barred; however, a criminal penalty had been imposed on him, namely the confiscation of the structures and land concerned by the unlawful development plan. It was unclear to the Court how the punishment of an accused person whose trial had not led to a conviction could be reconciled with Article 7 of the Convention, which set forth the principle of legality in criminal law. It was inconceivable for a system to allow the punishment of a person who had been found innocent, or in any case had not been found criminally liable in a verdict as to his guilt. The prohibition on imposing a penalty without a finding of liability was thus a further consequence of the principle of legality in criminal law, and likewise flowed from Article 7. This principle had already been established by the Court in relation to Article 6 § 2 of the Convention*. The Court had held that such a situation could not be compatible with the presumption of innocence and had found a violation of Article 6 § 2. A comparison of Article 5 § 1 (a) with Article 6 § 2 and Article 7 § 1 showed that for Convention purposes there could not be a “conviction” unless it had been established in accordance with the law that there had been an offence – either criminal or, as appropriate, disciplinary. The logic of the terms “penalty” and “punishment”, and the concept of “guilty” (in the English version) and the corresponding notion of “personne coupable” (in the French version), supported an interpretation of Article 7 requiring a punishment to follow from a finding of liability by the domestic courts, on the basis of which the perpetrator of the offence could be identified and punished. In the absence of such a finding, the punishment would be devoid of purpose. It would be inconsistent to require an accessible and foreseeable legal basis, while at the same time allowing a punishment to be imposed, as in this instance, on a person who had not been convicted. In the present case the criminal penalty imposed on the applicant, despite the fact that prosecution of the offence in question had become time-barred and his liability had not been established in a verdict as to his guilt, was irreconcilable with the principle that only the law could define a crime and prescribe a penalty, an integral part of the principle of legality as enshrined in Article 7 of the Convention. Accordingly, the penalty in issue was not provided for by law for the purposes of Article 7 and was arbitrary.
Conclusion: violation (six votes to one).
The Court also held, unanimously, that there had been a violation of Article 1 of Protocol No. 1.
Article 41: EUR 10,000 in respect of non-pecuniary damage; question reserved in respect of pecuniary damage.
(See Sud Fondi srl and Others v. Italy, 75909/01, 20 January 2009, Information Note 115)
* Geerings v. the Netherlands, 30810/03, 1 March 2007, Information Note 95.
© 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