Abstract
Despite the political, media and social upheaval following the definitive annulment of the “Parot” doctrine by the ECtHR of 21 October of 2013, this decision was based on an impeccable legal argument and logically deducible from the posture maintained earlier by the ECtHR, in consolidated case-law, on the requirements for foreseeability and non-retroactivity of unfavourable criminal law as unrenounceable guarantees of the right to legality in criminal law contained in article 7 ECtHR, of the broad concept of “law”, of the flexible concept of “penalty” and of the important role that is attributed to legal interpretation.
Former Law Clerk at the Spanish Constitutional Court (1991–1997; 2002–2006). Former Jurist-Reviewer to the European Parliament (1988–1991). Former Jurist-Linguist to the Court of Justice of the European Union (1986–1988). Former Professor of Criminal Law, Universidad Complutense de Madrid. The present article was originally published in the Revista Jurídica de Catalunya 113 (2014):11–37. The notes of the author to the last version of her article “El contenido debilitado del principio de legalidad penal (Art. 7 CEDH y art. 4 P7)” have been updated.
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Notes
- 1.
Hence the title of the article published by Díaz Crego (2013), “Cuando Parot llegó a Estrasburgo”, although it was not Parot who would get there but the doctrine that had emerged as a result of the presentation on his behalf of an appeal for cassation before the Supreme Court.
- 2.
Vid., among others, Díaz Crego (2013), Alcácer Guirao (2012), Cuerda Arnau (2013), Landa Gorostiza (2012). It has to be noted that unlike the present work, all of the above works refer exclusively to the ECtHR Judgement of 17 July 2012, the first of those delivered by the ECtHR, nonetheless they have not lost relevance today as the criteria upheld in the first instance and on appeal coincide.
- 3.
Cfr., in the same sense: Rodríguez Montañés (2013).
- 4.
- 5.
Which is clearly confirmed in view of STC 39/2012 of 29 March 2012, FJ 3, in which it is affirmed that “[…] neither selective voluntarism may be appreciated, nor unreasoned distancing from the criterion that has been applied, consolidated and maintained up until this point by the court, the decisions of which are challenged, which constitutes the essence of the application of inequality according to our case-law”.
- 6.
Vid. SSTC delivered on 29 March 2012, under the following references: 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 59, 61, 64, 65, 66, 67, 68 and 69; vid. likewise, SSTC 108/2012 of 21 May, and 114/2012 of 24 June.
- 7.
Vid. SSTC 39/2012 and 57/2012 of 29 March; 113/2012 of 24 June.
- 8.
Specifically, those that gave rise to SSTC 39/2012 and 57/2012 and 62/2012, of 29 March and 113/2012, of 24 June.
- 9.
The reasoning that was upheld in this regard in STC 39/2012, FJ 8 is as follows: “[…] in application of the existing legal framework at the time of committing the criminal act and calculating the remission of the sentence for work in accordance with the firm and intangible doctrine established by the court responsible for its enforcement, the applicant has already served the sentence that had been imposed upon him. Therefore, and although the applicant was legitimately deprived of his liberty, having served the sentence in the terms previously set out, we are confronted a case of deprivation of liberty beyond those cases envisaged in the law, because the law that legitimized it is now repealed. Therefore, the excess time spent in prison constitutes a privation of liberty lacking any legal basis and in breach of the fundamental right to freedom enshrined in art. 17.1 SC (STC 322/2005, of 12 December, Pts. of Law 2 and 3; and ECtHR of 10 July 2003, Grava v. Italy §§ 44–45). Under the Rule of Law, the deprivation of liberty of a person who has already served the conviction imposed upon him in its day cannot be prolonged, hence the ordinary courts have to adopt, as swiftly as possible, the relevant decisions, so that the violation of the fundamental right to liberty is ended and steps are immediately taken to release the applicant”.
- 10.
I must add that Del Río Prada was definitively released on 22 October, 2013, by Order of the Criminal Chamber of the Audiencia Nacional [Spanish High Court], delivered in application of the Judgement pronounced by the ECtHR the previous day, which meant she had effectively served a prison sentence of approximately 26 years. A term that might appear short to some—of course, it appeared so to certain associations of victims of terrorism and, what is criticizable from all sides, to some governmental bodies that forgot the fundamental role that the ECtHR plays in our legal system in accordance with the Treaties to which the Kingdom of Spain has subscribed and our own Constitution–, but from strictly penological points of view it greatly exceeds what is generally established as a limit so that the principle of resocialization—in its purest meaning of the reintegration of the ex-criminal so that he can develop a life in freedom in a more or less normal way—can be of some efficacy. In this sense, although the pain of the victims, who would have preferred them to stay in prison for as long as possible, appears understandable to me from all points of view, I consider some of the comments that appeared in the communications media, in which it was maintained that the terrorists had “got away with it”, quite unacceptable.
- 11.
For a more detailed description of this conformation of the principle of legality by the ECtHR, vid. Huerta Tocildo (2014), passim.
- 12.
Vid. par. 78 and section D.1.b.
- 13.
Vid., for example, ECtHR Judgement of 22 October 1996, c. Cantoni v. France.
- 14.
Vid. the above-mentioned Cantoni judgement and also the ECtHR Judgement of 25 November 1997, c. Grigoriades v. Greece, and ECtHR Judgement of 8 July 1999, c. Erdogdu and Ince v. Turkey.
- 15.
ECtHR Judgement of 22 June 2000, c. Coeme and others v. Belgium. Vid., on the same point, among others, ECtHR Judgement of 15 November 1996, c. Cantoni v. France; ECtHR Judgement of 10 October 2006, c. Pessino v. France.
- 16.
Vid. a more careful analysis of the role that the ECtHR attributes to case-law in the context of art. 7 ECtHR in Huerta Tocildo (2014), pp. 530–533.
- 17.
Vid., among many others: the ECtHR Judgements of 24 May 1988, c. Müller and others v. Switzerland; ECtHR Judgements of 25 May 1993, c. Kokkinakis v. Greece; ECtHR Judgements of 15 November 1996, c. Cantoni v. France.
- 18.
Vid. the Decision of the Commission of Human Rights of 6 March 1978, delivered in the Case of X v. Germany, in which the claim of the applicant that article 7 had been violated was declared inadmissible for not having applied a law subsequent to the time of committing the acts in which the conduct for which the applicant had been convicted was decriminalized. On that occasion, the Commission expressly concluded that the provision referred to in the Convention did not include the right to the retroactivity of the more favourable criminal law. Vid., in the same sense, ECtHR Judgement of 5 December 2000, c. Le Petit v. United Kingdom; ECtHR Judgement 6 March 2003, c. Zaprianov v. Bulgaria.
- 19.
Criteria previously proclaimed in the ECtHR Judgement of 9 February 1995, c. Welch v. the United Kingdom. In the same sense, ECtHR Judgement of 12 February 2008, c. Kafkaris v. Cyprus; ECtHR Judgement of 17 September 2009, c. Scoppola v. Italy.
- 20.
Vid. Huerta Tocildo (2014), pp. 533–536.
- 21.
For a critical view of this ECtHR Judgement, vid. Cuerda Arnau (2013), pp. 65–66.
- 22.
Thus, it is expressly affirmed in the dissenting opinion of Judge Borrego that accompanies this Judgement, in the following terms: “[…] the majority find a violation of Article 7 but at the same time observe that “there is no element of retrospective imposition of a heavier penalty involved in the present case”. In other words, there is a breach of the principle “no punishment without law” and yet no heavier penalty was retrospectively imposed. What a superb contradiction!”. Moreover, in their understanding, the same distinction “between a penalty breaching the Convention and its implementation being in conformity with the Convention is quite magnificent”.
- 23.
Cfr. Landa Gorostiza (2012), p. 14.
- 24.
For a more careful development of this difference, vid. Alcácer Guirao (2012), pp. 940 and ff.
- 25.
Confirmation that was necessary given that, as Alcácer Guirao affirmed, in the “[…] use of flexible standards that characterize the Court at Strasbourg, the application of the canon of non-retroactivity does not adopt a rigid chronological criteria, but makes the affectation of article 7 ECHR depend on the core guarantee of foreseeability”, in such a way that “[…] only when the change introduced in case-law subsequent to the acts might be unforeseeable for the citizen will the right be violated” (2012, p. 942).
- 26.
What is demonstrated in view of the Joint Partially Dissenting Opinions presented by Judges Mahoney and Vehabovic, in which, although they did not share the opinion of the majority with regard to the violation of art.7 ECHR, they made clear however their agreement with regard to the breach of art.5.1 ECHR.
- 27.
- 28.
Vid. a defence of the application of this principle to the case-law in Alcácer Guirao (2012), p. 945. In the opinion of that author, which I share fully, as I have had reason to make clear in earlier works (vid. Huerta Tocildo (2014), pp. 415–417), there are reasons that “[…] endorse the correction of proscribing the unfavourable retroactivity of case-law […] On the one hand, the Constitutional Court has been giving case-law enormous protagonism in the proper enforcement of the guarantee of certainty expected in the criminal norms […] If that is so […] it is nothing but coherent to conclude that the definition of criminal law by case-law should be subjected to the same requirement of foreseeability and non-retroactivity in peius as criminal law itself”.
References
Alcácer Guirao R (2012) La Doctrina Parot ante Estrasburgo: Del Río Prada c. España (STEDH 10.7.2012, N° 42750/09). Consideraciones sobre la aplicación retroactiva de la Jurisprudencia y la ejecución de las Sentencias del TEDH. Revista de Derecho Comunitario Europeo 43:929–952
Cuerda Arnau ML (2013) Cambios jurisprudenciales y retroactividad desfavorable (a propósito de la STEDH Del Río Prada c. España). Revista Penal 31:52–69
Cuerda Riezu A (2006) El concurso real y la acumulación de penas en la Sentencia del Tribunal Supremo 197/2006, de 28 de febrero, relativa al caso Henri Parot. Observaciones legales y constitucionales. Cuadernos de Derecho Judicial 7:215–296
Díaz Crego M (2013) Cuando Parot llegó a Estrasburgo. Teoría y Realidad Constitucional 31:579–611
García-Pablos de Molina A (2006) Relevancia de los cambios de criterio de la doctrina jurisprudencial y los plenos no jurisdiccionales del Tribunal Supremo. Cuadernos de Derecho Judicial 7:181–214
Huerta Tocildo S (2014) El contenido debilitado del principio europeo de legalidad penal. In: García J, Santolaya P (eds) La Europa de los derechos, 3rd edn. Centro de Estudios Políticos y Constitucionales, Madrid, pp 399–427
Landa Gorostiza JM (2012) Ejecución de penas y principio de legalidad ante el TEDH. InDret 4:1–25
Llobet Anglí M (2011) Caso Parot. In: Sánchez-Ostiz Gutiérrez P (coord) Casos que hicieron doctrina en Derecho Penal. La Ley, Madrid, pp 895-910
Muñoz Clares J (2006) La “Doctrina Parot”: comentario a la Sentencia del Tribunal Supremo (Sala 2.ª) 197/2006, de 20 de febrero. Revista General de Derecho Penal 5:1–10
Rodríguez Montañés T (2013) Doctrina Parot: ¿podemos pasar página?, eldiario.es, October 27
Vives Antón T (2006) Una sentencia discutible. El País, March 11
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Huerta Tocildo, S. (2018). The Annulment of the Parot Doctrine by the European Court of Human Rights. ECtHR Judgement of 21 October 2013: Much Ado Over a Legally Awaited Judgement. In: Pérez Manzano, M., Lascuraín Sánchez, J., Mínguez Rosique, M. (eds) Multilevel Protection of the Principle of Legality in Criminal Law. Springer, Cham. https://doi.org/10.1007/978-3-319-63865-2_8
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