Conviction for an offense that was statute-barred. Violation of the principle nullum crimen, nulla poena sine lege

JUDGMENT

Antia and Khupenia v. Georgia 18.06.2020 (app. no. 7523/10)

see here 

SUMMARY

Statute of limitations, conviction and principle nullum crimen, nulla poena sine lege.

The applicants were charged with breach of duty and convicted two years after the offense was committed, when the offense was now statute-barred. The Supreme Court upheld their conviction regarding the commission of the criminal act, however, it accepted the statute of limitations and deleted the sentence from their criminal record. The action for damages before the civil courts was dismissed due to their conviction. They filed a complaint for violation of the principle nullum crimen, nulla poena sine lege (Article 7 of the ECHR).

Strasbourg reiterated that Article 7 provides effective safeguards against arbitrary prosecution, conviction and punishment.

The ECtHR in the present case held that the applicants had been convicted even though the offense was statute-barred. It also found that the Supreme Court did not consider the applicants’ request to leave the proceedings and although they were acquitted, they were treated by the civil courts as if they had been convicted. It therefore found a violation of Article 7 of the ECHR.

PROVISION

Article 7

PRINCIPAL FACTS 

The applicants, Marina Antia and Nana Khupenia, are Georgian nationals who were born in 1964 and
1960 respectively and live in Zugdidi (Georgia).

The case concerned the applicants’ complaint about their conviction for neglect of official duties.
In October 2006 the applicants were charged with neglect of official duties during their employment
as inspectors at the Unified State Social Insurance Fund (“the Fund”), between 1995 and 2004, which
had allegedly resulted in employed people unlawfully receiving pensions from the Fund. They were
convicted in 2008 and fined.

On appeal, they argued, among other things, that their conviction had not been foreseeable as Fund
staff members had only fallen within the personal scope of the offence of neglect of official duties
since 2006 amendments to Article 342 § 1 of the Criminal Code. Furthermore, neglect of official
duties was a minor offence with a two-year statute of limitations, which had expired in October
2006 as the charges had concerned offences allegedly committed before January 2004. In November
2008 the Kutaisi Court of Appeal dismissed the applicants’ arguments and upheld the lower court’s
judgment in full.

The Supreme Court in May 2009 ultimately upheld the applicants’ conviction, finding that they had
been covered by the offence of official misconduct as they had worked for a public-law legal entity.
However, it agreed that the two-year statute of limitations had expired, quashing their fines and
expunging their criminal record.

The applicants sought damages from the Social Services Agency, the Fund’s legal successor, for the
termination of their contracts in 2006. However, the courts, including the Supreme Court, dismissed
their claims, noting their convictions and finding that the termination had had a valid legal basis.

Relying on Article 7 (no punishment without law) of the European Convention on Human Rights, the
applicants complained that their conviction for neglect of official duties had been time-barred, and
that it had not been foreseeable in view of the limited personal scope of the domestic criminal
provision on the basis of which they had been prosecuted.

THE DECISION OF THE COURT…

The guarantee enshrined in Article 7, which is an essential element of the rule of law provide effective safeguards against arbitrary prosecution, conviction and punishment.

The Court points out that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. Its role is thus confined to ascertaining whether the effects of such an interpretation are compatible with the Convention. However, the Court’s powers of review must be greater when the Convention right itself, Article 7 in the present case, requires that there was a legal basis for a conviction and sentence. Article 7 § 1 requires the Court to examine whether there was a contemporaneous legal basis for the applicant’s conviction and, in particular, it must satisfy itself that the result reached by the relevant domestic courts was compatible with Article 7 of the Convention.

The Court observes at the outset that the applicants’ complaint before it concerns two issues: their conviction despite the fact that the prosecution was time-barred, and the foreseeability of criminal law in relation to the personal scope of Article 342 § 1 of the Criminal Code.

In this context, the expiry of the statute of limitations in the applicants’ case was explicitly established by the Supreme Court and is not in dispute in the proceedings before the Court. As to the legal impact of such a finding, the Court observes that the relevant domestic law – namely Article 28 § 1 (e) of the Code of Criminal Procedure – provided that criminal proceedings were to be terminated if the statute of limitations in respect of the relevant offence had expired. However, if the accused was “against such a termination”, the criminal proceedings would continue under the ordinary procedure, and be terminated with the accused being either acquitted or convicted and exempted from serving the sentence . The Court will therefore assess whether the applicants had made an explicit request not to have the proceedings terminated to justify the domestic courts’ decision to proceed with the conviction in respect of the relevant time-barred offence.

In this connection, the Court does not lose sight of the fact that the applicants had made various submissions before the domestic courts. Among other arguments, they had referred to Article 28 §§ 1 (e) and 6 of the Code of Criminal Procedure , and had requested, in what appears to have been an alternative submission, that the appellate court and the Supreme Court “release them from serving the sentence” . However, it is not for the Court to speculate on the reasons why the applicants formulated the relevant applications in such a manner, save for noting that these submissions can hardly be taken as an explicit waiver of the important domestic law safeguard against being convicted of a time-barred offence.

Furthermore, the Court notes that the Supreme Court proceeded with the applicants’ conviction without addressing at all the question of a waiver, if indeed there had been one. Given the Supreme Court’s silence on the matter and the importance of the right at stake, the Court will not speculate as to whether the domestic courts treated the applicants’ above-mentioned submissions as an implicit waiver of their right – guaranteed under the domestic law – not to be convicted of a time-barred offence. It is therefore apparent that the applicants were convicted for acts which were no longer punishable owing to the lapse of the statute of limitations under the relevant domestic law , and the domestic courts offered no explanation for taking such an approach to their caseFurthermore, the Court notes that despite the fact that the applicants were exempted by the Supreme Court from serving the sentence with the further effect of no criminal record existing in respect of the relevant offence, in the subsequent proceedings against the Social Services Agency for the award of the damages, the domestic courts, up to and including the Supreme Court, treated the applicants as having been convicted in the previous proceedings.

The foregoing considerations are sufficient for the Court to proceed with finding a violation of Article 7 without addressing the second limb of the applicants’ complaint concerning the personal scope of Article 342 § 1 of the Criminal Code at the material time.

There has therefore been a violation of Article 7 of the Convention in the particular circumstances of the present case.


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