Request for the replacement of the sentence in the context of the transfer of detainees from Morocco to France. The principle “no punishment without law” does not apply to the enforcement of the sentence.

JUDGMENT

Robert v. France 26/09/2019 (no. 1652/16)

see here

SUMMARY

Execution of sentence and principle of “nulla poena sine lege”. Replacement of the sentence issued by the Moroccan courts for a French prisoner in the course of his transfer to France in order to serve his sentence. The Court held in particular that Articles 6 (right to a fair trial) and 7 (no penalty without a law) are not applicable in the execution of the sentence and that the application should therefore be declared inadmissible.

PRINCIPAL FACTS

The applicant, Richard Robert, is a French national who was born in 1972 and is incarcerated in
Yzeure (France). Mr Robert was prosecuted by the Moroccan authorities for acts relating to a
terrorist network, and was accused, in particular, of having directed the network and incited the
perpetration of terrorist acts. On 18 September 2003 the Criminal Division of the Rabat (Morocco)
Court of Appeal sentenced him to life imprisonment.

On 15 May 2012, pursuant to the 10 August 1981 Franco-Moroccan Convention on assistance to
detained persons and the transfer of convicted persons, Mr Robert was transferred to France in
order to continue to serve his sentence. In that framework, he applied to a French court to change
the sentence handed down by the Moroccan court.

By judgment of 31 May 2013 the Paris Criminal Court ruled that the applicable sentence should be
appraised by comparing the Moroccan and French legislation in force at the time of the applicant’s
transfer to France, rather than the laws in force at the time of the impugned acts. Furthermore, the
Paris Criminal Court pointed out that the aim was not to retry the applicant but merely to replace
the sentence handed down in Morocco with the sentence which was most similar in French law, or
reducing that sentence to the legal maximum term applicable in France. Accordingly, the life
sentence was replaced with a 30-year prison sentence as laid down in Articles 421-2-1 and 421-6 of
the Penal Code resulting from the 23 January 2006 Act. Mr Robert appealed.

The Paris Court of Appeal upheld the judgment, with the proviso that time served in Morocco should
be deducted. Mr Robert appealed on points of law. On 24 June 2015 the Court of Cassation
dismissed the appeal on points of law and upheld the judgment of the Court of Appeal.

THE DECISION OF THE COURT…

Articles 6 and 7

The Court noted from the outset that the French courts had, as requested by the applicant himself,
only adjudicated on the adjustment of the sentence which he still had to serve in France following
his transfer. The Court had already ruled on several occasions that Article 7 did not apply to the
execution of a sentence, particularly, as in the present case, in the framework of a procedure for
transferring a convicted person to another country.

The Court also pointed out that issues relating to sentence enforcement did not come under Article
6 either inasmuch as a domestic court is not called upon to determine the «merits» of a criminal
charge within the meaning of Article 6 of the Convention.

The Court declared therefore that the complaints submitted under Articles 6 and 7 of the
Convention were incompatible with the provisions of the Convention.

Article 3

Having regard to the evidence before it, the Court discerned no appearance of a violation of the
rights and freedoms guaranteed by the Convention.

The Court declared the application inadmissible.


ECHRCaseLaw

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