Remainder inadmissible;No violation of Art. 5-1

Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant was born in 1959 and is currently detained in Aachen Prison.

Between 1974 and 1990 the applicant was convicted of sexual offences including attempted rape, sexual abuse of children, sexual assault, attempted sexual assault and dangerous assault in six judgments and spent some eleven years in prison.

On 14 February 1990 the Cologne Regional Court convicted the applicant of two counts of sexual assault. It sentenced him to five years and six months’ imprisonment and ordered his (first) preventive detention under Article 66 § 1 of the Criminal Code (see paragraphs 20-21 below). It found that in June and July 1989 the applicant, acting with full criminal responsibility, had sexually assaulted two hitchhikers whom he had taken with him in his car. Having consulted a neurological expert, it further found that owing to his criminal tendencies, it was very likely that the applicant would commit further serious sexual offences comparable to those he was found guilty of on release and was dangerous to the public. Therefore, his preventive detention was necessary.

The applicant served his prison sentence until 17 January 1995 and was then held in preventive detention until 29 March 1995, when the preventive detention order was suspended on probation and the applicant released.

On 11 November 1996 the Cologne Regional Court convicted the applicant of attempted sexual assault and falsification of a driving licence. It sentenced him to four years and nine months’ imprisonment and ordered his (second) preventive detention under Article 66 § 1 of the Criminal Code. The Regional Court found that in August 1995 the applicant, acting with full criminal responsibility, had again attempted to sexually assault a hitchhiker. He had threatened her with a gas pistol, but she had succeeded in wresting the pistol from him and making good her escape. Having regard to the facts that the applicant had begun to reoffend almost immediately after spending some seventeen years in detention and that, according to the convincing view expressed by an expert, it would take many years to rehabilitate the applicant, if ever, the court further considered its second order of preventive detention to be proportionate.

On 20 June 1997 the Bonn Regional Court revoked the suspension on probation of the applicant’s first preventive detention, ordered in the Cologne Regional Court’s judgment of 14 February 1990, as the applicant had reoffended and had not diligently continued his therapy.

The applicant served his full prison sentence imposed in the judgment of 11 November 1996 until 25 May 2000. Since 26 May 2000 the applicant has been in preventive detention in Aachen Prison as ordered both in the judgment of the Cologne Regional Court of 14 February 1990 and in the judgment of that same court of 11 November 1996.

On 5 June 2002 the Aachen Regional Court, reviewing the applicant’s preventive detention, refused to suspend his preventive detention on probation.

On 11 June 2003 the applicant requested the Aachen Regional Court to order his release from preventive detention, arguing that preventive detention violated Article 5 § 1 of the Convention.

On 23 July 2003 the Aachen Regional Court, examining the applicant’s request under Article 458 § 1 of the Code of Criminal Procedure (see paragraph 24 below), decided that his objections against the admissibility of the execution of his preventive detention were ill-founded. The applicant’s preventive detention, ordered by the Cologne Regional Court in 1996 under Article 66 of the Criminal Code, constituted lawful detention after conviction by a competent court within the meaning of Article 5 § 1 (a) of the Convention.

On 10 September 2003 the Cologne Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. It added that preventive detention under Article 66 of the Criminal Code, which was to be qualified as a measure of correction and prevention and not as a penalty, neither violated the Convention nor the Basic Law. Moreover, Article 67d § 3 of the Criminal Code, in its version in force since 31 January 1998 (see paragraph 23 below), was constitutional.

On 15 March 2004 the Federal Constitutional Court, referring to its leading judgment of 5 February 2004 in the case of M. (file no. 2 BvR 2029/01; application no. 19359/04 to this Court), declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1838/03), in which he had complained that his preventive detention of an indefinite duration had violated Article 5 and Article 7 of the Convention.

On 19 July 2004, 19 July 2006 and 2 July 2008 the Aachen Regional Court, reviewing the applicant’s detention, refused to suspend the applicant’s preventive detention on probation. It considered that it could not be expected that the applicant, who refused to make a therapy with an external psychologist offered to him, would not reoffend on release.

The applicant was in his first preventive detention as ordered in the judgment of the Cologne Regional Court of 14 February 1990 until 15 March 2010. From 16 March 2010 onwards, the applicant’s preventive detention as ordered for the second time in the judgment of the Cologne Regional Court of 11 November 1996 is executed.

A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions referred to in the present case provide as follows:

The sentencing court may, at the time of the offender’s conviction, order his preventive detention, a socalled measure of correction and prevention, under certain circumstances in addition to his prison sentence, a penalty, if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code).

In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time).

Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first placement in preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3).

Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provided that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the conduct of the offender. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a § 3 of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis.

Article 458 § 1 of the Code of Criminal Procedure provides that a court decision must be obtained if objections are raised to the execution of a sentence.

On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period (compare the provisions in paragraphs 22-23 above) and about the retrospective order of the complainants’ preventive detention respectively (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). The Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.

The Federal Constitutional Court further held that all provisions of the Criminal Code on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention because those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003.

The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the most. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively, the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law. If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.

In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law (völkerrechtsfreundliche Auslegung). In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above).


Violation of Art. 10;No separate issue under Art. 6-2

By a decree of 17 March 1982, a “Mission for coordination, information and action against terrorism” was set up. This “anti-terrorist unit” at the Elysée Palace operated from 1983 to March 1986 within the office of the French President, engaging in telephone tapping and recording.

In November 1992 a weekly magazine published a handwritten note dated 28 March 1983, under the letterhead of the President's Office, containing indications that telephone lines, in particular those of certain journalists and lawyers, had been tapped.

In the same year a list of the people who had been placed under surveillance was published in the press.

The case aroused considerable media interest and a judicial investigation was opened in February 1993.

In the course of the proceedings G.M., deputy director of the French President's private office at the time of the surveillance, was placed under formal investigation on a charge of invading the privacy of others.

On 25 January 1996, a few days after President Mitterrand's death, the publishers Arthème Fayard published a book entitled Les Oreilles du Président (“The President's Ears”), which had been written by the first two applicants, both journalists, on the subject of the monitoring operations at the Elysée Palace.

On 1 February 1996 G.M. lodged a criminal complaint, with an application to join the proceedings as a civil party, against Mr Pontaut and Mr Dupuis, accusing them of handling documents obtained through a breach of professional confidence, of knowingly deriving an advantage from such a breach and of handling stolen property. In his complaint G.M. noted that appendix 1 of the book consisted of six “facsimile telephone-tap transcripts” which were identical to documents in the case file and that the other three appendices (list of individuals under surveillance) were also based on information from the file. He further cited thirty-six passages from the work which reproduced officially-recorded statements made to the investigating judge by the individuals under investigation or witnesses.

In the ensuing judicial investigation the applicants denied having obtained their information illegally. They refused to reveal their sources and claimed that many of the people examined by the judge had since publicly disclosed the content of their statements. As regards the facsimile telephone-tap transcripts and the content of the official records, the applicants argued that they had been circulating among journalists well before the opening of the judicial investigation.

In a judgment of 10 September 1998 the Paris tribunal de grande instance found that both the facsimiles and the record extracts came from the judicial investigation file, which was only accessible to persons bound by the secrecy of the judicial investigation or by a duty of professional confidence. The court considered that, regardless of how the documents in question had been transmitted, they could not have fallen into the applicants' hands without an offence being committed. In the court's opinion, experienced journalists could not have been unaware of that fact. Observing that all the elements of the offence of handling illegally-obtained items (recel) were sufficiently established, the court found Mr Pontaut and Mr Dupuis guilty of the offence of handling information obtained through a breach of the secrecy of the investigation or through a breach of professional confidence, under Articles 226-13, 226-31, 321-1 and 321-9 to 321-12 of the Criminal Code, and ordered each of them to pay a fine of 5,000 francs (equivalent to 762.25 euros (EUR)). The court further ordered them, jointly and severally, to pay 50,000 francs (EUR 7,622.50) in damages and found the company Librairie Arthème Fayard civilly liable. The applicants' book continued to be published and no copies were seized.

The applicants appealed. They claimed, among other things, that Article 6 § 2 and Article 10 of the Convention had been breached and argued that the judgment against them could not be regarded as necessary in the light of the Convention.

On 16 June 1999 the Paris Court of Appeal upheld the judgment, for the following reasons in particular:

“ ... The quantity, diversity and accuracy of the sources used by the defendants show that they were actually in possession of reproductions of documents from the judicial investigation file, as mere transcriptions or oral accounts would not have enabled them to make such systematic use of the material in that file ... The defendants could only therefore have obtained the documents through the intermediary of persons involved in the proceedings, who can be divided into two groups. The first group is bound by the secrecy of the investigation (judges and prosecutors, clerks, police officers, etc.), any breach of which will constitute a criminal offence. The second group consists of persons who are entitled to obtain copies of documents but who are not bound by the secrecy of the investigation, namely lawyers and the parties themselves ... These clear and coherent provisions show that compliance with certain conditions ensuring the secrecy of the investigation forms an integral part of the duty of professional confidence. To be sure, the rights of the defence must not be impaired by that duty. ... Thus the documents used by the defendants were necessarily obtained illegally and the precise classification of the offence has no bearing on the unlawfulness of their origin, which is the necessary and sufficient basis of the statutory characterisation of the offence of handling (recel), as is confirmed by the case-law of the Court of Cassation. ...”

As regards Article 10 of the Convention, the Court of Appeal held as follows:

“Even though the actual object of the handling specifically consists of elements of the judicial investigation, it should first be observed that the offence of handling provided for under Article 321-1 of the Code of Criminal Procedure corresponds to a commonly used characterisation. ... Accordingly, whilst proceedings in their current form may not be very numerous, they are based on clear and established provisions, which have been implemented in foreseeable conditions.

Under paragraph 2 of the above-mentioned Article 10, the exercise of freedom of expression may be subject to restrictions, in particular for the protection of the reputation or rights of others or for maintaining 'the authority and impartiality of the judiciary'.

It has been established that, by obtaining a number of the confidential documents from proceedings in which [G.M.] had been placed under judicial investigation, the defendants interfered with his private life and with his defence rights as an individual under judicial investigation. That action further demonstrated a wilful disregard for the rules governing the functioning of the judicial authority. In addition, the act of publication, which was the avowed objective of Mr Pontaut and Mr Dupuis, was bound to prejudice the presumption of innocence, a right which must be guaranteed for every person against whom criminal proceedings are brought.

... An obligation to comply with the basic rules governing the functioning of courts and the practices of persons involved in the administration of justice contributes to maintaining the democratic features of society. Accordingly, the rules concerning respect for the secrecy of the judicial investigation, like those concerning the duty of professional confidence, have the effect of protecting the judicial authority from excessive pressure, as well as protecting essential interests of those involved in the proceedings.

The restrictions to which freedom of expression is subject are therefore necessary, particularly because it has not been established that the constraints imposed in the present case really had an adverse effect on the informing of public opinion, having regard to the articles published on the subject, any more than it has been established that there was a breakdown in the administration of justice of which public opinion had to be informed.”

The applicants appealed on points of law.

In a judgment of 19 June 2001 the Criminal Division of the Court of Cassation dismissed their appeal.

The Court of Cassation rejected the ground of appeal in which the applicants alleged, among other things, that there had been a violation of Article 6 § 2 of the Convention, finding as follows:

“In finding guilty the defendants, who had denied having obtained the information unlawfully, but had refused to reveal their sources, the Court of Appeal notes that the book contained facsimile telephone-tap transcripts which are exact copies of pages from the investigating judge's case file, and of official records of statements drawn up by the judge. The court adds that, absent any evidence to support the hypothesis of accidental disclosure, the source could only have been a professional bound by a duty of confidence, whether one of the persons required to respect the secrecy of the judicial investigation or a lawyer bound by a duty of professional confidence under Article 160 of the decree of 27 November 1991 on the organisation of the legal profession. The court infers from the foregoing that, regardless of how the documents in question were transmitted, they could not have fallen into the hands of the defendants without an offence being committed. It adds that experienced journalists could not have been unaware of this fact.

The Court of Cassation, reasoning as follows, also dismissed the applicants' ground of appeal, based on a violation of Article 10 of the Convention, in which they submitted that the simple fact that the telephone tapping described in the book was the subject of a judicial investigation was not sufficient to justify the interference with their freedom of expression and that the judgment against them did not fulfil any necessity:

“In dismissing the complaint that there had been a violation of Article 10 of the European Convention on Human Rights, the Court of Appeal, by reasoning of its own and espousing that of the court below, notes that the essential subject matter of the offending work consists of the actual case file from the judicial investigation in progress; that the book reproduces, among other things, numerous passages from interviews with individuals examined by the investigating judge; and that this information was used in some detail in the authors' observations on the functioning of the monitoring system set up within the French President's Office. The court explains that the defendants found themselves in possession of confidential information on [G.M.] to which they had no right of access, thus interfering with a legitimate interest of the latter. The court adds that the limits to which freedom of expression is subject are necessary, particularly because it has not been established that the constraints applied in the present case caused any real prejudice to the informing of public opinion or that there was any breakdown in the administration of justice of which public opinion had to be informed.

Having regard to the foregoing findings, from which it transpires that the defendants were prosecuted for disclosing the content, that remained confidential, of material from a judicial investigation in progress, and that such a measure was justified by the necessity of protecting the rights of others, one such right being the presumption of innocence, and by the need to prevent disclosure of confidential information and to maintain the authority and impartiality of the judiciary, the Court of Appeal duly substantiated its decision for the purposes of Article 10 of the European Convention on Human Rights.

In awarding damages to the civil party, on the ground that the publication by the defendants of confidential information concerning that party had directly contributed to the damage he had sustained, the Court of Appeal substantiated its decision for the purposes of Article 2 of the Code of Criminal Procedure.”

In a judgment of the Paris Criminal Court dated 9 November 2005, G.M. was given a suspended six-month prison sentence and fined EUR 5,000.

“The disclosure of confidential information by persons who are entrusted with it either on account of their position or profession or on account of a temporary function or assignment shall be punished by one year's imprisonment and a fine of 15,000 euros.”

“The offence of handling (recel) is constituted by the concealment, possession or transmission of a thing, or by the fact of acting as an intermediary with a view to its transmission, in the knowledge that the said object was obtained by means of a serious crime (crime) or other major offence (délit).

The offence of handling is also constituted by the fact of knowingly deriving an advantage, by any means, from the product of a serious crime or other major offence. Handling shall be punished by five years' imprisonment and a fine of 375,000 euros.”

Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe to member States, on the provision of information through the media in relation to criminal proceedings, reads as follows:

Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so;

Recalling that the rights to presumption of innocence, to a fair trial and to respect for private and family life under Articles 6 and 8 of the Convention constitute fundamental requirements which must be respected in any democratic society;

Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system;

Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention;

Desirous to enhance an informed debate on the protection of the rights and interests at stake in the context of media reporting relating to criminal proceedings, and to foster good practice throughout Europe while ensuring access of the media to criminal proceedings;

Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states:

take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions,

disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and

bring them in particular to the attention of judicial authorities and police services as well as to make them available to representative organisations of lawyers and media professionals.

Appendix to Recommendation Rec(2003)13 - Principles concerning the provision of information through the media in relation to criminal proceedings

Principle 1 - Information of the public via the media

The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles.

Principle 2 - Presumption of innocence

Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused.

Principle 6 - Regular information during criminal proceedings

In the context of criminal proceedings of public interest or other criminal proceedings which have gained the particular attention of the public, judicial authorities and police services should inform the media about their essential acts, so long as this does not prejudice the secrecy of investigations and police inquiries or delay or impede the outcome of the proceedings. In cases of criminal proceedings which continue for a long period, this information should be provided regularly.


The applicant was born in 1942 and lives in Shipston Stour, Warwickshire.

Under current United Kingdom law, the state pension age is 65 for men and 60 for women. Until these ages, men and women who work are required to pay national insurance contributions (“NICs”) if their earnings are above a threshold amount, currently 385 pounds sterling (GBP) per month.

The applicant is over 60 years old and works as an administrator. Since he has not reached the state pension age for men of 65, he is required to pay NICs on his earnings. At the time of introduction of the application, his monthly salary was GBP 2,970 and he paid 10% of his earnings (between the primary threshold of GBP 385 and the upper earnings limit of GBP 2,535) in NICs (Class 1), amounting to GBP 215 per month and GBP 2,580 per annum. From April 2003, NICs increased to 11% of the amount up to the upper earnings limit, plus an additional 1% on all earnings above the limit. The applicant’s NICs increased to GBP 241.34 per month.

The applicant will be required to pay national insurance contributions from his earnings until he reaches the age of 65.

A woman of 60 years or more who continued to work would not be required to pay any NICs on her earnings.

The applicant wrote to his Member of Parliament and the Paymaster General complaining about the difference in treatment for men and women. Both replied stating that since liability to pay national insurance contributions is linked to the state pension age, the treatment of men and women would equalise in 2020 when the state pension age will equalise.

The National Insurance Act 1946, which first established the basis for the national social security scheme in the United Kingdom, set out a system of funding under which all employers and the majority of the working population, whether employed or self-employed, are liable to pay compulsory NICs contributions. This legislation has since been replaced, most recently, by the consolidating provisions of the Social Security Contributions and Benefits Act 1992 (“SSCBA 1992”) and the Social Security Administration Act 1992.

Section 1(2) of the SSCBA 1992 sets out the various classes of NIC. Of these, the largest category is Class 1 contributions which consist of earnings-related contributions paid by employers and employees. Such contributions are levied as a percentage of earnings which varies according to the employee’s earnings band. The NIC scheme is financed on a “pay as you go” basis, that is, current NICs fund current benefits: thus an individual’s contributions fund not his or her own benefits but those of others (R. (Carson) v. Secretary of State for Work and Pensions [2002] 3 All ER paragraphs 25-26).

A substantial contribution has been made to the National Health Service from NICs for many years. Following the National Insurance Act 2002, which imposed an additional deduction of 1% of earnings above the upper earnings limits, the element of calculation of the NHS allocation was also increased from 1.05% of earnings paid in the tax year to 2.05%.

Section 6(2) of the Act provides that only those under the state pension age are liable to pay NICs from their earnings. The state pension ages are currently set as 65 for men and 60 for women according to section 122.

Section 126 of the Pensions Act 1995 provides for the equalisation of state pension ages for men and women to the age of 65. The state pension age for women will increase gradually from 2010 and the equalisation will be complete in 2020. At the same time, the age until which women are liable to pay NICs will gradually increase in line with the increase in the state pension age.

Council Directive 79/7/EEC of 19 December 1978 provides for the progressive implementation of the principle of equal treatment for men and women in matters of social security. However, in Article 7(1)(a) the Directive provides for derogation in the matter of “the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences therefore for other benefits”.

In the Case C-9/91 The Queen v. Secretary of State for Social Security, ex parte Equal Opportunities Commission [1992] ECR1-4297 (“the EOC case” concerning reference for a preliminary ruling from the High Court), the European Court of Justice found that:

Article 7(1)a had to be interpreted as authorising the determination of a statutory pensionable age which differs according to sex for the purposes of granting old-age and retirement pensions and also forms of discrimination which are necessarily linked to that difference;

Inequality between men and women with respect to the length of contribution periods required to obtain a pension constitutes such discrimination where, having regard to the financial equilibrium of the national pension system in the context in which it appears, it cannot be dissociated from a difference in pensionable age;

In view of the advantages allowed to women by national pension systems, in particular as regards statutory pensionable age and length of contribution periods, and the disruption that would necessarily be caused to the equilibrium of those systems if the principle of equality between the sexes were to be applied from one day to the next in respect of those periods, the Community legislature intended to authorise the progressive implementation of that principle by the member States and that progressive nature could not be ensured if the scope of the derogation authorised by Article 7(1)a were to be interpreted restrictively. (Summary of judgment)


Violation of Art. 6-1;Violation of Art. 13+6-1

Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in 1953 and lives in Sofia.

On 7 March 1994 the applicant was charged with aiding and abetting large scale embezzlement. The charges were brought within the framework of criminal proceedings for abuse of power and embezzlement against several persons.

On 8 March 1994 the applicant was questioned in connection to the above charges and a search of his business premises was carried out.

On 11, 15, 23 and 24 March 1994 the applicant, some of the other persons charged and witnesses were questioned.

On 28 March 1994 the applicant was also charged with documentary fraud, was questioned in that connection and bail was fixed for him.

Between April and November 1994 at least fifteen questioning sessions and a search were carried out and several other persons were charged with abuse of power and embezzlement.

As the applicant did not pay the bail and could not be found for questioning, on an unspecified date in 1994 the Bulgarian authorities, with the assistance of Interpol, initiated a national and an international search for him.

On 5 December 1994 the applicant was found in Switzerland and on 26 January 1996 he was extradited to Bulgaria.

Meanwhile, the criminal proceedings against him were still pending and between 9 November 1994 and 8 January 1996 at least fourteen questioning sessions were carried out and two expert opinions were commissioned.

On 26 January 1996 the applicant was questioned and the findings of the investigation were presented to him.

Between January and October 1996 a number of questioning sessions and several other investigative actions took place and the charges against the applicant were separated from these against the other persons involved.

On 5 July 1997 a prosecutor from the Sofia city public prosecutor’s office dropped some of the charges against the applicant and prepared an indictment. Thus, the applicant remained charged only with aggravated documentary fraud, as a result of which he unlawfully received a large amount of money.

On 5 September 1997 the indictment was sent to the Sofia City Court.

During the first hearing of 5 March 1998 it became clear that the applicant had returned the allegedly embezzled amount to the victim company.

For the period between 5 March 1998 and 12 January 1999 the Sofia City Court held at least fourteen hearings.

By a judgment of 12 January 1999 the Sofia City Court acquitted the applicant.

The prosecutor appealed.

The Sofia Court of Appeal held at least three hearings. By a judgment of 13 March 2000 it upheld the acquittal.

The prosecutor appealed further. On 22 May 2000 the Supreme Court of Cassation held a hearing.

By a judgment of 3 October 2001 the Supreme Court of Cassation quashed the Sofia Court of Appeal judgment because of procedural breaches and remitted the case for fresh examination.

After the remittal the Sofia Court of Appeal held hearings on 20 May and 23 September 2002.

In a judgment of 21 November 2003 the Court of Appeal upheld the Sofia City Court judgment of 12 January 1999.

So did the Supreme Court of Cassation in a final judgment of 24 June 2004.

Apparently, no civil claim was brought against the applicant throughout the proceedings.

During the search of the applicant’s business premises, carried out on 8 March 1994, a metal safe was seized. On 11 May 1994 an investigator from the Sofia National Investigation Service opened the safe and seized the amount of 986,444 old Bulgarian levs (BGL) (the equivalent of 41,874 German marks at the time or 21,410 euros (EUR)). In the seizure record of 11 May 1994 it was stated that the amount had been seized pursuant to Article 156 of the Code of Criminal Procedure of 1974 (CCP). The amount was deposited in a special bank account under which no interest was due.

After the end of the criminal proceedings against the applicant, he requested the return of the seized amount.

In a decision of 2 September 2004 the Sofia City Court ordered the amount to be returned to the applicant. It found that no civil claim had been lodged within the framework of the criminal proceedings and no attachments had been imposed. The applicant received 986.40 new Bulgarian levs (BGN), approximately EUR 504, which was the equivalent of the seized amount after the denomination of 1999.

The domestic law provisions concerning remedies in respect of length of criminal proceedings have been summarized in paragraphs 34-42 of the Court’s judgment in the case of Atanasov and Ovcharov v. Bulgaria, no. 61596/00, 17 January 2008.

Article 156 of the CCP, as in force between 1974 and 1999, provided for attachment measures to guarantee the satisfaction of civil claims against the perpetrator, the payment of fines or the execution of confiscation orders. The provisions of the Civil Procedure Code of 1952 (CPC), including as regards appeals to higher courts, applied in respect of the attachment procedure.

In case no civil action had been lodged within the prescribed time-limit, the interested party could request from the court to lift the imposed measure (Article 322 of the CPC).

Article 181 of the CCP provided that the orders of the investigator were subject to appeal before the prosecutor and the orders of the prosecutor could be appealed before the prosecutor with a higher rank.

Articles 133-137 provided for the seizure of documents and other objects that could be of importance for the criminal proceedings. Pursuant to Article 106 of the CCP chattels and other objects could be collected as physical evidence and had to be held by the authorities until the termination of the criminal proceedings. They could be returned to their owners before that only as long as this would not hinder the establishment of the facts in the case (Article 108 § 2). As of 1 January 2000 Article 108 of the CCP was amended, thus clarifying that it was within the powers of the prosecutor’s office to rule on requests for the return of such objects and introducing the right to appeal before the court in case of refusal.


Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nulla poena sine lege;Retroactivity);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant was born in 1958. She is serving a prison sentence in the region of Murcia (Spain).

In eight sets of criminal proceedings before the Audiencia Nacional, the applicant was sentenced as follows:

- In judgment 77/1988 of 18 December 1988: for being a member of a terrorist organisation, to eight years’ imprisonment; for illegal possession of weapons, to seven years’ imprisonment; for possession of explosives, to eight years’ imprisonment; for forgery, to four years’ imprisonment; for using forged identity documents, to six months’ imprisonment.

- In judgment 8/1989 of 27 January 1989: for damage to property, in conjunction with six counts of grievous bodily harm, one of causing bodily harm and nine of causing minor injuries, to sixteen years’ imprisonment.

- In judgment 43/1989 of 22 April 1989: as a key accomplice in a fatal attack and for murder, to twenty-nine years’ imprisonment.

- In judgment 54/1989 of 7 November 1989, as a key accomplice in a fatal attack, to thirty years’ imprisonment; for eleven murders, to twenty-nine years for each murder; for seventy-eight attempted murders, to twenty-four years on each count; for damage to property, to eleven years’ imprisonment. The court ordered that in application of Article 70 § 2 of the Criminal Code of 1973 the maximum duration of the sentence to be served (condena) should be thirty years.

- In judgment 58/1989 of 25 November 1989: as a key accomplice in a fatal attack and in two murders, to twenty-nine years’ imprisonment in respect of each charge. In keeping with Article 70 § 2 of the Criminal Code of 1973, the court ordered that the maximum duration of the sentence to be served (condena) should be thirty years.

- In judgment 75/1990 of 10 December 1990: for a fatal attack, to thirty years’ imprisonment; for four murders, to thirty years’ imprisonment on each count; for eleven attempted murders, to twenty years’ imprisonment on each count; on the charge of terrorism, to eight years’ imprisonment. The judgment indicated that in respect of the custodial sentences the maximum sentence provided for in Article 70 § 2 of the Criminal Code of 1973 should be taken into account.

- In judgment 29/1995 of 18 April 1995: for a fatal attack, to twenty-nine years’ imprisonment; for murder, to twenty-nine years’ imprisonment. The court again referred to the maximum term of imprisonment provided for in Article 70 of the Criminal Code.

- In judgment 24/2000 of 8 May 2000: for an attack combined with attempted murder, to thirty years’ imprisonment; for murder, to twenty-nine years’ imprisonment; for seventeen attempted murders, to twenty-four years’ imprisonment on each count; and for damage to property, to eleven years’ imprisonment. The judgment noted that the sentence served should not exceed the maximum term provided for in Article 70 § 2 of the Criminal Code of 1973. In order to determine which criminal law was applicable (the Criminal Code of 1973, which was applicable at the material time, or the later Criminal Code of 1995), the Audiencia Nacional considered that the more lenient law was the 1973 Criminal Code, because of the maximum term of sentence provided for in its Article 70 § 2, in conjunction with its Article 100 (reduction of sentence for work done).

In all, the terms of imprisonment to which the applicant was sentenced amounted to over 3,000 years.

The applicant was held in preventive detention from 6 July 1987 to 13 February 1989. On 14 February 1989 she began to serve her sentence after conviction.

By a decision of 30 November 2000 the Audiencia Nacional notified the applicant that the legal and chronological links between the crimes of which she had been convicted made it possible to group them together as provided for in Article 988 of the Code of Criminal Procedure in conjunction with Article 70 § 2 of the 1973 Criminal Code, which had been in force when the offences were committed. The Audiencia Nacional combined all the applicant’s prison sentences together and fixed the total term of imprisonment to be served at 30 years.

By a decision of 15 February 2001, the Audiencia Nacional fixed the date on which the applicant would have fully discharged her sentence (liquidación de condena) at 27 June 2017.

On 24 April 2008 the authorities at the prison where the applicant was serving her sentence decided that, taking into account the 3282 days’ remission to which she was entitled for the work she had done since 1987, she should be released on 2 July 2008.

On 19 May 2008 the Audiencia Nacional asked the prison authorities to review the date of the applicant’s release in the light of new precedent set by the Supreme Court in its judgment 197/06 of 28 February 2006, of which the Audiencia Nacional cited the relevant parts (see Relevant domestic law and practice, below), which stated, inter alia:

“Thus, the execution of the total sentence to be served [condena] shall proceed as follows: it shall begin with the heaviest sentences pronounced. The relevant benefits and remissions shall be applied to each of the sentences being served. When the first sentence has been served, the second sentence shall begin and so on, until the limits provided for in Article 70 § 2 of the Criminal Code of 1973 have been reached. At such time, all of the sentences comprised in the total sentence to be served [condena] shall have been extinguished.”

The Audiencia Nacional explained that this new case-law applied only to those people convicted under the Criminal Code of 1973 to whom Article 70 § 2 had been applied. As that was the applicant’s case, the date of her release would be changed accordingly.

The applicant lodged an appeal (súplica). She argued, inter alia, that the application of the Supreme Court’s judgment was in breach of the principle of non-retroactivity of criminal law provisions less favourable to the accused. In her case the reduction of sentence for work done would now be calculated for each individual sentence and not for the total sentence to be served – and up to the maximum limit of 30 years. This new method of calculation would in effect increase the term of imprisonment actually served by the applicant by almost nine years.

By an order of 23 June 2008 the Audiencia Nacional set the date for the applicant’s release at 27 June 2017.

The applicant appealed against that decision.

By a decision of 10 July 2008 the Audiencia Nacional rejected the appeal and noted that it was not a matter of limits on prison sentences, but rather of how to apply reductions of sentence in order to determine the date of the prisoner’s release. Such reductions were to be calculated in relation to each sentence individually. Concerning the principle of non-retroactivity, the Audiencia Nacional considered that it had not been breached because the criminal law applied in this case had been in force at the time of its application.

Relying on Articles 14 (prohibition of discrimination), 17 (right to liberty), 24 (right to effective legal protection) and 25 (principle of legality) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. By a decision of 17 February 2009, the Constitutional Court declared the appeal inadmissible on the grounds that the applicant had not demonstrated the constitutional relevance of her complaints.

The relevant provisions of the Constitution read as follows:

“All Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.”

“1. Every person has the right to liberty and security. No one may be deprived of his or her freedom except in accordance with the provisions of this Article and in the cases and in the manner prescribed by law.

“1. All persons have the right to obtain the effective protection of the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defence.

Likewise, all persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; not to make self-incriminating statements; not to declare themselves guilty; and to be presumed innocent. ...”

“1. No one may be convicted or sentenced for any act or omission which at the time it was committed did not constitute a criminal offence, misdemeanour or administrative offence under the law in force at that time.

The relevant provisions of the Criminal Code of 1973, as in force at the material time, read as follows:

“When all or some of the sentences imposed ... cannot be served simultaneously by a convict, the following rules shall apply:

In imposing the term to be served, the order followed shall be that of the severity of the respective sentences, which the convict shall serve consecutively if possible, going on to the next sentence when the previous one has been served or extinguished by pardon ...

Notwithstanding the previous rule, the maximum term to be served (condena) by a convict shall not exceed triple the time imposed for the most serious of the penalties incurred, the others being declared extinguished once those already imposed cover that maximum, which may not exceed thirty years.

The above limitation shall be applied even where the penalties have been imposed in different proceedings, if the facts, because they are connected, could have been tried as a single case.”

“Once his judgment or conviction has become final, any person serving a custodial or prison sentence may be granted a remission of sentence in exchange for work done. In serving the sentence imposed ... the detainee is entitled to one day’s remission for every two days worked, and the time thus deducted is taken into account when granting release on licence.

The following persons shall not be entitled to remission for work done:

Detainees who escape or attempt to escape, even if they do not succeed.

Detainees who repeatedly misbehave while serving their sentence.

The relevant provision of the Code of Criminal Procedure in force at the material time reads a follows:

“... When a person found guilty of several criminal offences is convicted, in different sets of proceedings, of offences that could have been tried in a single case, in accordance with Article 17 of the Code, the judge or court which pronounced the last judgment of conviction shall, of its own motion or at the request of the public prosecutor or the convicted person, fix the maximum term to be served in respect of the sentences pronounced, in keeping with Article 70 § 2 of the Criminal Code ...”

The relevant section of the 1981 Prison Rules (no. 1201/1981) explained as follows how to calculate the term of imprisonment (three quarters of the sentence pronounced) to be served in order for the detainee to be eligible for release on licence:

“In calculating three quarters of the sentence, the following rules shall apply:

(a) The part of the sentence to be served (condena) which is subject to pardon for the purposes of release on licence shall be deducted from the total penalty pronounced, as if that penalty has been replaced by a lesser one.

(b) The same rule shall apply to prison benefits entailing a reduction of the sentence to be served (condena).

(c) When a person is sentenced to two or more custodial sentences, the sum of those sentences, for the purposes of release on licence, shall be considered as a single sentence to be served (condena). ...”

The new Criminal Code of 1995 did away with the reduction of sentences in consideration of the work done in prison. However, those prisoners whose conviction was pronounced on the basis of the Criminal Code of 1973 – even after the entry into force of the new Code – continued to be eligible for reductions of sentence for work done. As to the maximum length of prison sentences and the application of reductions to the time served, the Criminal Code of 1995 was amended by institutional law 7/2003 on measures for the full and effective execution of sentences. The relevant parts of the Criminal Code thus amended read as follows:

“When some or all of the penalties for the different offences cannot be served concurrently, they shall be served consecutively, in descending order of severity, as far as possible.”

“1. Notwithstanding what is set forth in the preceding Article, the maximum duration of the sentence to be served (condena) by a convict shall not exceed triple the time imposed for the most serious of the penalties incurred, the others being declared extinguished once those already imposed cover that maximum, which may not exceed twenty years. Exceptionally, the maximum limit shall be:

(a) Twenty-five years when an individual has been found guilty of two or more crimes and one of them is punishable by law with a prison sentence of up to twenty years;

(b) Thirty years when a convict has been found guilty of two or more crimes and one of them is punishable by law with a prison sentence exceeding twenty years;

(c) Forty years when a convict has been found guilty of two or more crimes and at least two of them are punishable by law with a prison sentence exceeding twenty years;

(d) Forty years when a convict has been found guilty of two or more crimes ... of terrorism ... and any of them is punishable by law with a prison sentence exceeding twenty years.

The above limitation shall be applied even where the penalties have been imposed in different proceedings, if the facts, because they are connected or because of when they were committed, could have been tried as a single case.”

“1. If, as a result of the limitations established in section 1 of Article 76, the sentence to be served is less than half the aggregate of all the sentences imposed, the sentencing judge or court may order that prison benefits, day-release permits, pre-release classification and the calculation of the time remaining to be served prior to release on licence be determined with reference to all of the sentences pronounced.

Such a decision shall be mandatory in the cases referred to in paragraphs (a), (b), (c) and (d) of section 1 of Article 76 of this Code, provided that the sentence to be served is less than half the aggregate of all the sentences imposed. ...”

In an order of 25 May 1990, the Supreme Court considered that the combining of sentences in application of Article 70 § 2 of the Criminal Code of 1973 and Article 988 of the Code of Criminal Procedure concerned not the “execution” but the fixing of the sentence, and that its application was accordingly a matter for the convicting judge, not the judge responsible for the execution of sentences (Juzgados de Vigilancia Penitenciaria).

In a judgment of 8 March 1994 (529/1994) the Supreme Court affirmed that the maximum term of imprisonment (thirty years) provided for in Article 70 § 2 of the Criminal Code of 1973 was just like a new sentence – resulting from but independent of the others – to which prison benefits provided for by law, such as release on licence and remission of sentence, applied” (point 5 of the reasoning). The Supreme Court referred to Article 59 of the Prison Rules of 1981, according to which the combining of two custodial sentences into one was considered as a new sentence for the purposes of the application of release on licence.

That approach continued to be adopted after the entry into force of the Criminal Code of 1995 as regards the legal maximum term to be served under Article 76 thereof (see paragraph 23 above). In its judgment 1003/2005, of 15 September 2005, the Supreme Court affirmed that “this limit is just like a new sentence – resulting from but independent of the others – to which prison benefits provided by law, such as release on licence, day release and pre-release classification apply” (point 6 of the reasoning). A similar approach was followed in the judgment of 14 October 2005 (1223/2005), in which the Supreme Court, in the same terms, reiterated that the maximum term of imprisonment to be served “is just like a new sentence – resulting from but independent of the others – to which prison benefits provided for by law, such as release on licence must be applied, subject to the exceptions provided for in Article 78 of the Criminal Code of 1995” (point 1 of the reasoning).

The Supreme Court departed from this case-law, however, in judgment 197/2006, of 28 February 2006, in which it established what is known as the “Parot doctrine”. The Supreme Court held that reductions of prisoners’ sentences should be applied to each sentence individually, not to the maximum sentence of thirty years’ imprisonment provided for in Article 70 § 2 of the Criminal Code of 1973. The relevant parts of the Supreme Court’s reasoning read as follows:

“... a joint interpretation of rules one and two of Article 70 of the Criminal Code of 1973 leads us to consider that the thirty-year maximum term does not become a new sentence, distinct from those successively imposed on the convict, or another sentence resulting from all the previous ones, but is the maximum term of imprisonment a prisoner should serve. The reasons that lead us to this interpretation are: (a) first, from a purely literal point of view, the Criminal Code by no means considers the maximum term of thirty years as a new sentence to which any reductions to which the prisoner is entitled should apply, quite simply because it says no such thing; (b) on the contrary, the penalty (pena) and the resulting term of imprisonment to be served (condena) are two different things; the wording used in the Criminal Code refers to the resulting limit as the “maximum term to be served” (condena), establishing the different lengths of that “maximum term to be served” (condena) in relation to each of the respective “sentences” imposed, and calculated in two different ways, by taking the different sentences in order of gravity, in accordance with the first rule, until one of the two maximum limits provided for is attained (three times the length of the heaviest sentence pronounced or, in any event, no more than thirty years); (c) this interpretation is also suggested by the wording of the Code, since after completing the successive sentences as mentioned, the prisoner will stop ‘discharging [that is, serving] the remaining ones [in the prescribed order] as soon as the sentences already served reach the requisite maximum length, which may on no account exceed thirty years’ ... (e) and from a teleological point of view, it would not be logical, simply because of the aggregation of sentences, for a copious criminal record to be reduced to a single new sentence of thirty years, with the effect that an individual who has committed a single offence is treated, without justification, in the same way as someone convicted of multiple offences, as is the case here. Indeed, there is no logic in applying this rule in such a way that committing one murder is punished in the same way as committing two hundred murders; (f) were application for a pardon to be made, it could not apply to the resulting total term to be served (condena), but rather to one, several or all of the different sentences imposed; in such a case it is for the court that pronounced the sentence to decide, and not the judicial body responsible for applying the limit (the last one), which shows that the sentences are different; and in any event, the first rule of Article 70 of the Criminal Code of 1973 states how, in such a case, to verify the successive completion of the sentences “when the previous ones have been extinguished by pardon”; (g) and to conclude this reasoning, from a procedural point of view Article 988 of the Code of Criminal Procedure clearly states that it is a matter of fixing the maximum limit of the sentences pronounced (in the plural, in keeping with the wording of the law), “in order to determine the maximum length of these sentences” (the wording is very clear).

Which is why the term “aggregate of the sentences to be served [condenas]” is very misleading and inappropriate. The sentences are not merged into one, but the serving of multiple sentences is limited by law to a certain maximum term. Consequently, the prisoner serves the different sentences, with their respective specificities and with all the benefits to which he is entitled. That being so, for the extinction of the sentences successively served, the reduction of sentences for work done may be applied in conformity with Article 100 of the Criminal Code of 1973.

Thus, the method for the discharge of the total term to be served [condena] is as follows: it begins with the heaviest sentences imposed. The relevant benefits and remissions are applied to each of the sentences the prisoner is serving. When the first [sentence] has been served, the prisoner begins to serve the next one and so on, until the limits provided for in Article 70 § 2 of the Criminal Code of 1973 have been reached. At this stage, all of the sentences comprised in the total term to be served [condena] will have been extinguished.

For example, in the case of an individual given three prison sentences, 30 years, 15 years and 10 years. The second rule of Article 70 of the Criminal Code of 1973 ... limits the actual term to be served to three times the most serious sentence or a maximum of 30 years’ imprisonment. In this case, it would be the maximum term of thirty years. The successive serving of the sentences (the total term to be served) begins with the first sentence, which is the longest one (30 years in this case). If [the prisoner] were granted a ten-year remission for whatever reason, he would have served that sentence after 20 years’ imprisonment, and the sentence would be extinguished; next, [the prisoner] would start to serve the next longest sentence (15 years), and with a remission of 5 years that sentence will have been served after 10 years. 20 + 10 = 30. [The prisoner] would not have to serve any other sentence, any remaining sentences being extinguished, as provided for in the applicable Criminal Code, once those already imposed cover that maximum, which may not exceed thirty years.”

In that judgment the Supreme Court considered that there was no well-established case-law on the specific question of the interpretation of Article 100 of the Criminal Code of 1973 in relation to Article 70 § 2. It referred to a single precedent, its judgment of 8 March 1994 in which it considered that the maximum duration provided for in Article 70 § 2 of the Criminal Code of 1973 was “just like a new, independent sentence” (see paragraph 25 above). However, the Supreme Court departed from that interpretation, pointing out that that decision, which it considered an isolated one, could not be relied on as a precedent in so far as it had never been applied in a constant manner as required under Article 1 § 6 of the Civil Code. Even assuming that that decision could have been considered as a precedent, the court reiterated that the principle of equality before the law (Article 14 of the Constitution) did not preclude departures from the case-law, provided that sufficient reasons were given. Furthermore, the principle that the law should not be applied retroactively (Article 25 § 1 of the Constitution) was not meant to apply to case-law.

A dissenting opinion was appended to judgment 197/2006 by three judges. They considered that the sentences imposed successively were transformed or combined into another sentence of the same kind, but different in so far as it combined the various sentences into one. They called it “the sentence to be served”, that is to say the one resulting from the application of the limit fixed in Article 70 § 2 of the Criminal Code of 1973, which effectively extinguished the sentences that went beyond that limit. This new “unit of punishment” was the term the prisoner had to serve, to which remission for work done should be applied. Remissions should therefore be applied to the sentences imposed, but only once they had been processed in conformity with the rules on the consecutive serving of sentences. The dissenting judges also pointed out that for the purposes of determining the most lenient criminal law following the entry into force of the Criminal Code of 1995, all Spanish courts, including the Supreme Court (agreements adopted at the Plenary sessions on 18 July 1996 and 12 February 1999), had agreed to the principle that reductions of sentence should be applied to the sentence resulting from the application of Article 70 § 2 of the Criminal Code of 1973 (the thirty-year limit). In application of that criterion no fewer than sixteen people convicted of terrorism had recently had their sentences reduced for work done although they had each been given prison sentences of over a hundred years.

The dissenting judges considered that the method applied by the majority was not provided for in the Criminal Code of 1973 and therefore amounted to retroactive implicit application of the new Article 78 of the Criminal Code of 1995, as modified by institutional law 7/2003 on measures for the full and effective execution of sentences (see paragraph 23 above). This new interpretation was also contra reo, constituted a policy of full execution of sentences alien to the Criminal Code of 1973, could be a source of inequalities and was contrary to the case-law of the Supreme Court (judgments of 8 March 1994, 15 September 2005 and 14 October 2005, see paragraphs 25-26 above). Lastly, the dissenting judges considered that criminal policy reasons could on no account justify such a departure from the principle of legality, even in the case of an unrepentant terrorist murderer.

In a series of judgments of 29 March 2012 the Constitutional Court ruled on several amparo appeals lodged by convicts to whom the “Parot doctrine” had been applied. In two cases (4893-2006, 4793-2009) it allowed the appeals for violation of the right to effective judicial protection (Article 24 § 1 of the Constitution) and the right to liberty (Article 17 § 1 of the Constitution). The Constitutional Court considered that the new method of calculating remission following the Supreme Court’s departure in 2006 from its earlier case-law was in contradiction with the earlier final judicial decisions in the appellants’ cases. In those earlier firm and final decisions, in order to determine which was the most lenient criminal law applicable (the Criminal Code of 1973 or that of 1995), the courts had based themselves on the principle that the reductions of sentence for work done provided for in the Criminal Code of 1973 should be applied to the thirty-year maximum sentence, not to each sentence individually. In so doing they had reached the conclusion that the regime of the Criminal Code of 1973, with its reductions of sentence for work done, was more favourable to the appellants than the new Criminal Code of 1995. In a third case (appeal no. 10651-2009), the Constitutional Court found in the appellant’s favour for violation of the right to effective judicial protection (Article 24 of the Constitution), considering that the Audiencia Nacional had changed the date of the prisoner’s final release, thereby disregarding its own firm and final judicial decision given a few days earlier. In these three cases the Constitutional Court pointed out that the right to effective judicial protection included the right not to have final judicial decisions overruled (the “intangibility” of final judicial decisions).

In twenty-five other cases the Constitutional Court dismissed the amparo appeals on the merits, finding that the decisions by which the ordinary courts had set the appellants’ final dates of release in application of the departure from precedent in 2006 had not contravened any final judicial decision concerning them.

Both in the judgments in the appellants’ favour (paragraph 31) and in those against them (paragraph 32) the Constitutional Court dismissed the complaints under Article 25 of the Constitution (principle of legality), considering that the question of the calculation of remission for work done concerned the execution of the sentence and on no account the application of a harsher sentence than that provided for in the applicable criminal law, or a sentence exceeding the limit allowed by law. It cited the case-law of the European Court of Human Rights according to which a distinction was to be made, for the purposes of Article 7 of the Convention, between measures constituting a “penalty” and measures relating to the “execution” of a penalty (Grava v. Italy, no. 43522/98, § 51, 10 July 2003, and Gurguchiani v. Spain, no. 16012/06, § 31, 15 December 2009).

Several judges appended separate concurring or dissenting opinions to the judgments of the Constitutional Court.


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicant, Mr Claude Louis Duboc, is a national of the United States of America and France, who was born in 1942. He is currently detained in a prison in the United States of America. He is represented before the Court by Dr. J. Hock, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. The Government of France were given notice of the application, and they informed the Court on 11 June 2008 that they would not exercise their right to intervene in the present case.

The facts of the case, as submitted by the parties, may be summarised as follows.

In November 1988 the applicant opened a bank account with an Austrian bank, bank G. The account was registered under his name and all movements on the account were able to be followed. By 1998 the applicant’s account had a positive balance of approximately 17 million euros (EUR).

In 1994 the applicant was indicted in the United States on various drug and money laundering charges relating to drug trafficking on a particularly large scale, which he was involved in from 1982 until his arrest in 1994. The applicant entered into a Plea and Cooperation Agreement with the prosecution on 17 May 1994. Under that agreement, the applicant voluntarily forfeited to the United States approximately 50 million United States dollars (USD) in assets. He was also obliged to identify all his assets. However, the applicant did not disclose his account with bank G.

While in prison the applicant was induced by one of the other fellow inmates, who was cooperating with the FBI, to bribe a judge. The inmate also arranged a meeting between the applicant and W., an undercover lawenforcement officer, who presented himself as being able to assist the applicant. Subsequently, W. arranged several money transfers for the applicant from bank G. in Austria.

Thereupon, on 7 May 1998, the United States Department of Justice requested the Austrian authorities under letters rogatory to freeze the applicant’s assets as a preliminary step to forfeiture under US law, subject to the operation of Austrian law. It stated that the applicant’s funds deposited with bank G. were the proceeds of money laundering and drug offences to which the applicant had pleaded guilty in 1994. It further held that these funds had also been used in additional money laundering offences for which the applicant would be indicted later.

This request was based on the treaty regulating judicial assistance between Austria and the United States, namely the Treaty of Mutual Legal Assistance (“the MLAT”), which entered into force on 1 August 1998.

On 23 September 1999 the District Court for the Northern District of Florida issued a Final Order of Forfeiture including the applicant’s assets at bank G. (“the first forfeiture order”). Apparently, the applicant’s appeal against this decision was to no avail.

In a second set of criminal proceedings in the United States, the applicant was indicted for conspiracy to bribe a federal judge, conspiracy to tamper with a witness, conspiracy to money laundering and for money laundering.

On 1 February 2000 the District Court for the Northern District of Florida acquitted the applicant of bribery, but convicted him of all other charges. The court also ordered the forfeiture of his assets (“the second forfeiture order”).

On 26 August 2004 the United States Court of Appeals for the Eleventh Circuit partly granted the applicant’s appeal against the decision of 1 February 2000 and acquitted him with respect to money laundering. His conviction for conspiracy to tamper with a witness was affirmed. The court also reversed the second forfeiture order.

Based on the United States’ letters rogatory of 7 May 1998, the Vienna Regional Criminal Court (Landesgericht für Strafsachen) issued an interim measure on 23 June 1998 enjoining the applicant from disposing of all assets deposited with bank G. It also held that the interim measure would be suspended on deposit of USD 325,000. The applicant did not pay that deposit and did not appeal against the court’s decision. This interim measure was twice altered to reflect the increased value of the assets subject to it.

Additional criminal proceedings were instituted against the applicant on suspicion of money laundering on 19 June 1998.

On 23 April 1999 the Austrian Federal Ministry of the Interior (Bundesministerium für Inneres) issued a report listing all credits and debits on the applicant’s account that had been carried out via bank transfer or by means of crossed cheques (Verrechnungsschecks).

On 14 April 2000 the Regional Criminal Court dismissed the applicant’s request for the suspension of the criminal proceedings and for the lifting of the interim measure. It held that only the Public Prosecutor’s Office could suspend the proceedings at this stage and that the interim measure was still justified.

On 17 August 2000 the Vienna Court of Appeal (Oberlandesgericht) rejected the applicant’s request that it hold a hearing and dismissed his complaint against the Regional Criminal Court’s decision of 14 April 2000. It held that according to the findings of the United States authorities the applicant could reasonably be suspected of having committed the crime of receiving stolen property (Hehlerei) and, after the entry into force of the relevant amendment to the Austrian Criminal Code, the crime of money laundering.

Subsequently, the applicant applied to have the interim measure lifted three additional times between 27 June 2001 and 18 August 2003. All of his requests were to no avail.

Following the judgment of the United States Court of Appeals for the Eleventh Circuit of 26 August 2004 and the applicant’s acquittal of the charges of money laundering, the applicant applied again to have the interim measure lifted.

On 22 March 2005 the Vienna Regional Criminal Court dismissed this request and upheld the interim measure. It held that a distinction had to be made between the two different proceedings in the United States. The first forfeiture order was still in force and consequently the interim measure in Austria could not be quashed. Even if the second forfeiture order had been lifted, the corresponding judgment of the United States Court of Appeals for the Eleventh Circuit had stated that at least some of the money in the applicant’s account with bank G. had “doubtlessly derived from drug related money”. The interim measure was therefore still justified.

This decision was upheld by the Court of Appeal on 22 September 2005 and served on the applicant’s counsel on 10 October 2005.

On 18 May 2005 the Vienna Public Prosecutor’s Office asked the Regional Criminal Court to enforce the first forfeiture order. Furthermore, it discontinued the criminal proceedings against the applicant on the same date. It renewed the request on 26 February 2006.

Upon the request of the Vienna Regional Court of 16 March 2006, the U.S. Department of Justice submitted a certified written version of the judgment issued against the applicant. However, it did not do so until 6 March 2007.

On 25 April 2006 the Vienna Regional Court dismissed the Public Prosecutor’s request for the execution of the first forfeiture order for formal reasons.

On 19 June 2007 the Vienna Court of Appeal allowed the Public Prosecutor’s appeal and remitted the case back to the Regional Court.

On 1 February 2008 the Vienna Regional Court asked the U.S. authorities to inform the applicant of the request of the U.S. Department of Justice for enforcement of the first forfeiture order and to give him the opportunity to comment on it.

On 23 April 2008 the applicant and his former wife, both represented by counsel, requested in their comments that the first forfeiture order not be executed in Austria.

On 4 June 2008 the Vienna Regional Criminal Court, without holding a hearing, decided to take over the enforcement of the first forfeiture order and ordered the forfeiture of the applicant’s Austrian assets. The applicant appealed against this decision on 24 June 2008.

On 30 December 2008 the Vienna Court of Appeal dismissed the applicant’s subsequent appeal. That decision was served on the applicant’s counsel on 27 January 2009.

Section 1 of the Extradition and Legal Assistance Act (Federal Law Gazette no. 529/1979) stipulates that the Act applies where international or bilateral agreements do not provide otherwise.

Section 3 carries the heading “reciprocity” and, so far as relevant, provides as follows:

“(1) Foreign requests may be granted only if it is ensured that the requesting State would also grant an equivalent Austrian request.

(3) If there are doubts regarding compliance with reciprocity, information shall be obtained from the Federal Minister of Justice.”

“(1) Enforcement or further enforcement of a decision by a foreign court which was pronounced with final and legal effect, in the form of a money fine or prison sentence, a preventive measure or a pecuniary measure (vermögensrechtliche Anordnung), is admissible at the request of another State if:

the decision of the foreign court was taken in the course of proceedings in compliance with the principles of Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (the Convention) (Federal Law Gazette No. 210/1958);

the decision was taken for an act that is sanctioned by a court sentence under Austrian law;

the decision was not taken for one of the offences listed in § 14 and § 15;

no time lapse has occurred under Austrian law regarding enforceability;

the person concerned by the decision of the foreign court – regarding this offence – is not prosecuted in Austria, was finally and effectively convicted or adjudicated in this matter or otherwise released from prosecution.

(4) Enforcement of a decision by a foreign court which results in pecuniary measures is admissible only to the extent that the requirements under Austrian law for a money fine, a withdrawal of enrichment or forfeiture apply, and that no corresponding Austrian measure has yet been taken.

(7) Fines, forfeited assets or enrichment withdrawn shall fall to the Republic of Austria.”

The Treaty was signed on 23 February 1995 and, following ratification, entered into force on 1 August 1998 (Federal Law Gazette Part III, no. 107/1998).

“(1) The Contracting Parties shall provide mutual assistance, in accordance with the provisions of this Treaty, in connection with the investigation and prosecution of offences, the punishment of which at the time of the request for assistance would fall within the jurisdiction of the judicial authorities of the Requesting State, and in related forfeiture proceedings.

(2) Assistance shall include:

(h) assisting in proceedings related to forfeiture and restitution; ...”

“(1) If the Central Authority of one Contracting Party becomes aware of fruits or instrumentalities of offences which are located in the territory of the other Party and may be forfeitable of otherwise subject to seizure under the laws of that Party, it may so inform the Central Authority of the other Party. If the other Party has jurisdiction in this regard, it may present this information to its authorities for a determination as to whether any action is appropriate. These authorities shall issue their decision and shall, through their Central Authority, report to the other Party on the action taken.

(2) The Contracting Parties shall assist each other to the extent permitted by their respective laws in proceedings relating to the forfeiture of the fruits and instrumentalities of offences, restitution to the victims of crime, and the collection of fines imposed as sentences in criminal prosecutions.

(3) A Requested State in control of forfeited proceeds or instrumentalities shall dispose of them in accordance with its law. To the extent permitted by its laws and upon such terms as it deems appropriate, either Party may transfer forfeited assets or the proceeds of their sale to the other Party.”

“(3) This Treaty shall apply to requests whether or not the relevant offences occurred prior to the entry into force of this Treaty.”