PROCEDURE

1.  The case originated in an application (no 37193/07) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“The Convention”) by a Bulgarian national, Ms Paraskeva Dimitrova Todorova (“the applicant”), on 9 August 2007.

2.  The applicant, who has been admitted legal aid, was represented by Ms S. Stefanova and Mr Ekimdzhiev, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms Svetla Atanasova, of the Ministry of Justice.

3.  The applicant alleges, in particular, that the Bulgarian criminal courts which convicted her of fraud, put forward discriminatory grounds for refusing to stay the execution of her prison sentence and that her criminal case was not examined by an impartial tribunal.

4.  On 5 September 2007, the President of the Chamber in charge of examining the case accepted the applicant’s request to treat her case as a matter of priority (Rule 41). On 28 January 2008, the President decided to communicate the request to the Government. As permitted by Article 29 § 3 of the Convention, it was further decided that the Chamber would decide on admissibility and merits at the same time.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1952 and lives in Trud, in the Plovdiv region. She is a Bulgarian citizen and belongs to the Roma ethnocultural minority.

6.  In 2005, on an undisclosed date, the Plovdiv District Prosecutor’s Office opened criminal proceedings against the applicant for fraud; she was reproached in particular for the fraudulent appropriation of the sum of 2,600 Bulgarian levs (approximately 1,300 euros) and the jewels of a certain G.S. On 23 December 2005, she was sentenced to trial in the District Court of Plovdiv.

7.  During the proceedings, the District Court heard the prosecution and defence witnesses, gathering documentary evidence and the conclusions of experts. The concerned party claimed that on the day of the events in question, 12 July 2005, she was in Zlatitsa, a town about 100 kilometres from the victim’s village, and that she had consulted a doctor because she had felt ill. She submitted a doctor’s medical certificate and had her son’s companion interviewed. In her defence speech, her lawyer emphasised that the police had not found significant amounts of money or jewellery at the applicant’s home. She challenged the reliability of the identity parade carried out at the preliminary stages of investigation and drew the court’s attention to the contradictions in the evidence of the prosecution’s witnesses as to the age and the physical appearance of the applicant who had defrauded the victim. The lawyer insisted that the first of three prosecution witnesses, a neighbour, had seen a woman of Roma origin approaching and speaking with the victim, but that she was not in a position to recognize the individual. In addition, during the identity parades and in the courtroom, the second witness, another neighbour, had stated that she was not sure whether the applicant was the woman who had defrauded the victim. As for the third of these witnesses, the counsel for the applicant noted that she was the granddaughter of the victim and invited the court not to grant credit to her statements. The lawyer admitted that the applicant had previously been sentenced for theft. However, her last conviction was more than twenty years old.

8.  In her defence speech, the district prosecutor invited the court to recognize the applicant guilty of the alleged facts: she had been recognized by the victim and two witnesses against her. The testimony of a third witness corroborated the conclusion that the concerned party had fraudulently taken the money and jewels of the victim. She invited the court not to grant credit to the evidence of the defence’s witness, who was among those close to the applicant. In view of the preponderance of mitigating circumstances in the present case and of the applicant’s state of health, the prosecutor argued in favour of a suspended conviction and a sentence close to the minimum provided for by the Criminal Code.

9.  On 29 May 2006, the Plovdiv District Court, consisting of a professional judge and of two lay assessors (съдебни заседатели), pronounced its judgment in which it found the applicant guilty of defrauding G.S. and sentenced her to three years of imprisonment. The reasons for the judgment were issued to the applicant in June 2006 and bore the signature of the professional judge who had presided over the District Court’s trial. At the beginning of these reasons, among other personal information used to identify the applicant, such as her place and date of birth, her home address and her unique identification number, her Roma origin was also listed. In the fact-finding portion of the reasoning, the court found that the accused had entered the victim’s home fraudulently, suggesting to her that her family had been struck by black magic which she could dispel. Taking advantage of G.S.’s credulity, she took the money and jewellery that she then kept in her home. The court based these findings on the statements of the prosecution witnesses which it found to be consistent with the other evidence gathered. It did not retain the statements of the defence witness who had explained that the applicant had visited relatives in Zlatitsa in July 2005 and that she had consulted a doctor there. The court refused to take into account the medical certificate presented by the applicant: even if it was dated 12 July 2005, there was no date after its reference number, as is normally the case. Similarly, the doctor had affixed his stamp on the document, but it lacked the stamp of the hospital. The court found that the sentence should be three years’ imprisonment because of the balance between the aggravating and mitigating circumstances in this case. Among the aggravating circumstances, it mentioned the negative data on the applicant’s personality, previous convictions, the absence of a stable job, the gravity of the alleged acts, the high amount of money taken by the applicant, and the operating mode thereof. The court held as a mitigating circumstance the advanced age of the applicant.

10.  The District Court refused to suspend the execution of the three-year sentence for the following reasons:

“The decision to impose an effective sentence of imprisonment in this case arises from the legal obligation for the court (Article 66 of the Penal Code) to determine whether suspension of the sentence’s execution is compatible with the objectives of the penal sanction. The court considers that this is not the case in this case, especially as there is a feeling of impunity, especially among members of minority groups, for whom a conditional sentence is not a conviction (this concerns general prevention). Moreover, this conclusion is equally valid with regard to special prevention – the execution of the sentence imposed will prevent [the applicant] from committing other criminal offenses and [will enable her] to correct her behaviour and to rehabilitate herself.”

11.  The applicant appealed against this judgment. She considered that the court based its findings on the statements of the prosecution’s witnesses, who did not prove her implication in the acts alleged against her, and that the lower court refused to obtain evidence corroborating the defence’s case. At her request, the Plovdiv Regional Court questioned the doctor who issued the medical certificate, as well as the nurse who worked with him. Both confirmed that the applicant had come to the doctor’s office on the morning of 12 July 2005 for a matter of high blood pressure. The examination was finished after twenty minutes. In her plea, the applicant’s lawyer reiterated her arguments before the first-instance court concerning the credibility of the prosecution’s witnesses’ statements and the accountant’s alibi (see paragraph 7 above) and argued that the lower court had taken into account the applicant’s ethnicity to justify its decision. She invited the regional court to acquit her client or to give her no more than a suspended sentence.

12.  On 16 October 2006, the Plovdiv Regional Court upheld the judgment of the first-instance court. It upheld again the statements of the prosecution’s witnesses, which it considered consistent with the other evidence. It did not uphold the statements of the applicant’s son’s companion, believing that they were not sufficiently specific. It found that the applicant’s allegation that she had, on 12 July 2005, consulted a doctor in Zlatitsa was well established. However, in the absence of any indication as to the exact time of the medical visit, the court found that, given the length of the consultation and the distance between the town of Zlatitsa and the victim’s village, in theory as well as in practice, the interested party would have had the opportunity to go to G.S.’s home at the time indicated by the witnesses, namely around noon on the same day. In its part on the appropriateness of suspending the execution of the sentence, the judgment of the Regional Court reads as follows:

“The appeal court shares the reasons for the inapplicability of a suspended sentence with respect to Paraskeva Todorova. It agrees wholeheartedly with the opinion of the initial court that a possible suspension of execution could not contribute to the accomplishment of the objectives of general and specific prevention because, on one hand, it would have created a feeling of impunity, and on the other, it would not have prevented [the applicant] from resuming her wrongful behaviour, and the sentence would not have had a deterring effect on other members of society.”

This judgment was not subject to appeal in ordinary cassation.

13.  On 6 November 2006, the applicant lodged an appeal with the Supreme Court of Cassation provided for by Article 422, paragraph 1, point 5 of the Code of Criminal Procedure. She claimed that her conviction was unfair, discriminatory, and contrary to domestic law and to international conventions ratified by Bulgaria, including Article 6 § 1 of the Convention. The applicant requested the High Court to order the re-examination of the case or to potentially modify the judgment of the Regional Court.

14. In her defence brief submitted to the High Court, the applicant’s counsel challenged in particular the courts’ reasoning concerning sentencing and the refusal to suspend the execution of the sentence. It argued that the file contained no information which could lead to the conclusion that there was negative information on the applicant’s personality. The applicant had received a pardon after her prior convictions, which obligated the courts to no longer consider her criminal record as an aggravating circumstance. Given the unemployment rate in the country and the age of the applicant, the lack of a stable job could not be considered as such a circumstance. As for the gravity of the events, this was part of the very characteristics of the penal infraction for which the conviction had been made, which prevented the courts from taking up the same argument for also arguing it as an aggravating circumstance. Moreover, according to the consistent legal precedents of the domestic courts, the amount of the money appropriated was not significant. The decision of the courts not to suspend the execution of the applicant’s sentence was motivated by her membership with a minority ethnic group. The applicant’s counsel argued that this same motivation demonstrated the bias of the court that had sentenced her client.

15.  In a judgment on 5 June 2007, the Supreme Court of Cassation dismissed the applicant’s appeal. The High Court found that the lower courts had correctly established the facts on the bases of the relevant evidence gathered during the criminal investigation and in court. They had correctly characterized the established events as fraud and determined the length of the sentence imposed by taking into account the seriousness of the events and the personality of the applicant in light of previous criminal infractions. The Supreme Court of Cassation admitted that the formal conditions for a sentence suspension had been met, particularly in view of the fact that the applicant had been rehabilitated. However, it found that the conviction of an effective sentence was justified for the following reasons:

“It has been rightly admitted [by the lower courts] that the execution of the sentence was indispensable and justified from society’s point of view. Thus, the accused will be deprived of the opportunity to resume her wrongful behaviour and [the penal sanction] will have a deterring effect on other members of society.”

II.  RELEVANT DOMESTIC LAW AND PRACTISE

A.  The principle of equality before the law

16.  Article 6, paragraph 2 of the Constitution proclaims the principle of equality of citizens before the law and prohibits any restriction of their rights or privileges based on, among others, race or ethnicity. Article 11, paragraph 2 of the Code of Criminal Procedure of 2006 (hereinafter the CCP), obligates the courts, the public prosecutor’s department, and the bodies responsible for the criminal investigation to apply the law uniformly to all citizens.

B.  The Penal Code

17.  According to Article 66 of the Penal Code, the court may suspend enforcement of the sentence of imprisonment imposed if the term of imprisonment does not exceed three years, if the concerned party has not already been convicted to a term of imprisonment for a criminal offense prosecuted ex officio and if the court finds that the objectives of the penal sanction can be attained without the imposition of an effective penalty. The existence of a previous conviction does not preclude, in principle, the application of Article 66 of the Penal Code, if the party in question has benefited from rehabilitation (see, for example, Решение № 13 от 25.01.2001г. на ВКС по н.д. № 700/2000г., ІІ н.о.).

18.  According to Article 36 of the Penal Code, the imposition of a criminal penalty has the following objectives: to correct the behaviour of the convicted person and encourage him or her to respect the laws and virtue; to prevent the possibility for him or her to commit other criminal offenses; to prevent criminal offenses by other members of society and encourage in them respect for the law and good virtues.

C.  Appeal against final judgements rendered in the appeal court

19.  According to Article 346 of the CCP, the judgments of regional courts rendered in the appeal court, when they confirm the judgments of initial courts, are not susceptible to ordinary appeal.

20.  Nevertheless, these judgments can be criticised for the same deficiencies which justify appeal in cassation (non-observance of substantive or procedural legislation or imposition of an unfair penalty) before the Supreme Court of Cassation by the appeal provided by Article 422, paragraph 1, point 5 of the CCP. This plea, which the legislature regulated in the chapter of the CCP dedicated to the reopening of criminal proceedings, can be introduced by the sentenced person, through the court of first instance (Article 422, paragraph 2) within a period of six months from the date of the judgment of the appeal court (Article 421, paragraph 3 of the CCP).

21.  If the Supreme Court of Cassation finds any of the aforementioned breaches of substantive or procedural rules, it is bound to overturn the judgment of the lower court and may remit the case for reconsideration, terminate the criminal proceedings, acquit the person concerned or amend the judgment under appeal (Article 425, paragraph 1 of the CCP).

D.  The reopening of proceedings in criminal courts following a judgment of the European Court of Human Rights

22.  In view of Articles 420, paragraph 1, Article 421, paragraph 2 and Article 422, paragraph 1, point 4 of the CCP, the public prosecutor is obligated to request the reopening of the criminal proceedings of a convicted person within one month of the judgement of the European Court of Human Rights finding a violation of the Convention, if the violation found is of particular importance for the outcome of the criminal proceedings. The body competent to decide in this case is the Supreme Court of Cassation.

IN LAW

I.  ON THE ALLEGED VIOLATIONS OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION

23. The applicant alleges that the refusal of the domestic courts to suspend her execution of her sentence was based on her Roma ethnicity. She considers that this approach of the courts, which she describes as openly discriminatory, undermined her right to a fair trial and that the reasoning of the District Court’s decision clearly demonstrates the judge’s bias. The complaint also denounces the domestic law’s inability to remedy this situation. She invokes articles Article 6 § 1, 13 et 14 of the Convention. The Court considers it appropriate to examine the applicant’s allegations under Article 14 in conjunction with Article 6 § 1. The relevant parts of those articles of the Convention read as follows:

Article 14

“The enjoyment of the rights and freedoms recognized in the (...) Convention shall be secured without discrimination on any ground such as sex, race, colour, language, origin, political opinions or any other opinions, national or social origin, association with a national minority, property, birth, or any other status.”

Article 6 § 1

“Everyone is entitled to a fair and public hearing (...), by an independent and impartial tribunal established by law (...) which will determine (...) any criminal charge against him or her (...)”.

A.  On admissibility

24.  The Court observes that the applicant introduced her request on 9 August 2007, less than six months after the judgment on 5 June 2007 of the Supreme Court of Cassation, but more than six months after the judgment of 16 October 2006 of the Regional Court of Plovdiv. It further observes that, according to domestic legislation, the judgment of the Regional Court was final (see paragraph 19 above) and that the decision of 5 June 2007 of the Supreme Court of Cassation was not delivered in the context of an ordinary cassation procedure. In these circumstances, the Court considers the main question which arises as to the admissibility of the present application to be whether the applicant complied with the six-month time-limit set forth by Article 35 § 1 of the Convention.

25.  The Court recalls that the rules of the six-month period and the exhaustion of domestic options, provided for in Article 35 § 1 of the Convention, are closely linked. In effect, the six-month period runs from the final decision in the context of the exhaustion of domestic options (see, inter alia, Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001). This last rule obligates the applicants to gather only the pleas normally available and sufficient in the domestic legal order to allow reparations for the alleged violations to be obtained (Kiiskinen v. Finland (dec.), no. 26323/95, ECHR 1999V (extracts)). Thus, Article 35 § 1 does not require the exhaustion of extraordinary or discretionary remedies and the decision taken as the result of such an appeal is not normally regarded as the ‘final domestic decision’ for the calculation of the six-month period (see, inter alia, Berdzenichvili v. Russia (dec.), no. 31697/03, ECHR 2004II (extracts)). It follows that the Court can examine the merits of the present application only if it finds that the appeal lodged by the applicant, namely that provided for by Article 422, paragraph 1, point 5 of the CCP, is a normally available and effective remedy for the alleged violations of the Convention.

26.  The Court observes in the first place that domestic law allows convicted person to appeal directly to the Supreme Court of Cassation of the appeal in question within a period which does not appear excessively long (see paragraph 20 above).

The introduction of such an application is not subject to any authorisation or approval by the administrative or judicial authorities. In this case, the applicant availed herself of this opportunity to expressly contest the partiality of the first-instance court and its reasons for imposing an effective sentence (see paragraphs 13 and 14 above). Accordingly, the Court considers that the remedy provided for by Article 422, paragraph 1, point 5 of the CCP was sufficiently accessible to the applicant, both in theory and in practise.

27.  With regard to the efficacy of the proceedings initiated, the Court notes that the appeal in question allows the concerned party to invoke the same deficiencies which open the path to ordinary cassation (see paragraph 20 above). The Supreme Court of Cassation, for its part, has a wide range of powers in the context of this procedure: it can overturn the judgment and refer the case to the lower course for reconsideration, it may also amend the judgment under appeal, terminate criminal proceedings, or acquit the concerned party (see paragraph 21 above).

28.  The Court further observes that the competent court examined all aspects of the substance of the criminal charge against the applicant – the establishment of the facts, their legal qualification, the appropriateness of the sentence and the possibility of suspending its execution (see paragraph 15 above). Moreover, the proceedings in question took place within a brief period of time: the applicant applied to the competent court less than one month after the contested judgment was delivered (see paragraphs 12 and 13 above) and the Supreme Court of Cassation delivered its judgment without significant delay (see paragraph 15 above). It is true that, in the end, the applicant’s request was rejected. However, in light of domestic legal provisions and other circumstances relevant to the case, the Court cannot blame the applicant for lodging the appeal provided for by Article 422, paragraph 1, point 5 of the CCP, which was directly available to her and which could address the alleged unfairness of the proceedings brought against her.

29.  Consequently, the Court considers that the judgment of 5 June 2007 of the Supreme Court of Cassation represents the “final domestic decision” for the purposes of Article 35 § 1. It follows that the present application was introduced in the six-month period provided for by this provision of the Convention.

30.  The Court notes, moreover, that the complaints in question are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they face no other ground of inadmissibility. They should therefore be declared admissible.

B.  On the merits

31.  The Court observes at the outset that the applicant denounces, on one hand, the discriminatory motive behind her conviction to an effective sentence and, on the other hand, the lack of impartiality by the domestic courts which adopted and ratified this decision on the grounds that her ethnicity had been taken into account in determining her sentence. The Court considers it appropriate to first examine the grievance concerning the domestic courts’ motives in the context of the prohibition of discrimination in the enjoyment of a guaranteed fair trial.

1. On the allegedly discriminatory nature of the courts’ reasoning

a)  The parties’ submissions

32.  The applicant states that the refusal of the first-instance court to suspend the execution of her sentence was motivated by her Roma ethnicity. She maintains that all the other conditions required by criminal law for the application of the suspended sentence procedure were met in her case – the court had set the prison sentence at three years and she had received a pardon for her previous convictions, which were more than twenty years old. However, the first-instance court imposed an effective sentence on the sole basis that a suspended sentence could not be seriously considered, especially among minorities. The applicant considers that this argument directly referred to her belonging to the Roma minority, which she considers proof that in the same circumstances, someone representing the ethnic majority of the country would not have been sentenced to an actual prison sentence. For that matter, the higher courts have joined the arguments put forth by the first-instance court.

33.  The Government categorically rejects this view and considers that the applicant was not subjected to discriminatory treatment based on her ethnicity. It recalls that, according to domestic law, the imposition of a criminal sanction must serve two purposes: general prevention, aimed at deterring other members of society from committing criminal offenses, and specific prevention, which serves to prevent the convicted person from recidivism. In order to properly enforce the legislation concerning suspended sentencing, the domestic courts must take into account these two aspects of the deterrent effect of the sentence, as well as the relevant circumstances of each concrete case.

34.  The Government considers the courts to have correctly applied domestic law in considering that only the imposition of an effective penalty could deter both the applicant and other members of society from committing this type of fraud. The Government considers that, in the reasoning for its judgment, the first-instance court simply highlighted that a possible suspended sentence would have created a feeling of impunity among all members of society, regardless of their ethnicity. It maintains that in the process of adopting the contentious decision, the fact that the applicant was of Roma origin played only a significant role.

b)  The Court’s assessment

35.  The Court reiterates that, while it is not up to them to replace the domestic courts in assessing the facts and in interpreting domestic law, it is required to ensure that the procedure followed in this case, taken as a whole, is of an equitable nature, as required by Article 6 of the Convention (see among many others Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997-VIII; Van Kück v. Germany, no. 35968/97, §§ 46 and 47, ECHR 2003-VII).

36.  Article 14 prohibits any unjustified difference in the enjoyment of rights and freedoms guaranteed by the Convention based on any of the criteria enumerated in a non-exhaustive manner by this Article, including the ethnicity or race of the concerned party. The Court has already had the opportunity to rule on the question of under what conditions the motivation behind a court’s decision infringes upon the combined provisions of Articles 14 and 6 § 1 of the Convention. In particular, it considered that when the argument of a domestic court’s judgement introduces a difference in treatment exclusively based on one of the criteria enumerated in Article 14, the State is under an obligation to justify that difference in treatment. In the absence of such a justification, Articles 14 and 6 § 1 of the Convention are considered to be violated (Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A No. 263; Moldovan v. Roumania (No. 2), nos. 41138/98 and 64320/01, §§ 139 and 140, ECHR 2005VII (extracts)).

37. Turning to the present case, in light of the aforementioned principles, established in its case law and in light of each party’s arguments (see paragraphs 32 and 34 above), The Court considers it appropriate to consider first whether the argument of the domestic courts resulted in the introduction of a difference in treatment disadvantaging the applicant on the basis of her ethnicity. If so, it must consider whether the difference in treatment in question was objectively and reasonably justified by the defendant State.

38.  The Court observes that in the part of the reasoning of the judgment of 29 May 2006 pertaining to the appropriateness of suspending the execution of the imposed sentence, the first-instance court had to seek, as required by domestic law, whether the objectives of general and specific prevention could be achieved without the execution of the prison sentence (see paragraphs 17 and 18 above). In motivating its conclusion on general prevention, the first-instance court referred to the existence of a widespread sentiment of impunity in society, highlighting in particular the extent of this phenomenon in the case of minority groups, “for whom a suspended sentence is not a conviction” (see paragraph 10 above).

39.  The Court accepts that in assessing the deterring effect of a sentence vis-à-vis other members of society, a court may have to take into consideration phenomena of a more or less general nature, such as, for example, the situation of crime in the country, the perception by the general public of this or that type of crime, or the possible existence of a social climate of insecurity. Nonetheless, such observations by the court must, in the opinion of the Court, rest on a certain factual basis; however, the Court observes that the domestic court has not put forth a single argument or fact capable of supporting its findings.

40.  The Court is not convinced by the Government’s arguments that the contested motivation of the court was directed at the entire society and that the applicant’s ethnicity played only a minor role in the court’s assessment (see paragraph 34 above). It observes that the court expressly mentioned the applicant’s Roma origin among the personal data used to identify her from the outset of the reasoning for their judgment (see paragraph 9 above). The remark about the existence of a feeling of impunity in society, which was very general in nature, was focused on minority groups and hence on the applicant herself: she was sentenced to an effective punishment. The Court is of the view that this assertion, taken together with the applicant’s ethnic affiliation, was likely to inspire the public, as well as the applicant, with the sentiment that the court was seeking to impose, in this case, an exemplary sentence for the Roma community, by condemning to an effective sentence a person belonging to the same minority group.

41. The Court considers that other circumstances corroborate the impression that there was a difference in treatment to the disadvantage of the applicant in her criminal proceedings. It observes that in her plea before the District Court, the prosecutor spoke in favour of a suspended sentence, given the preponderance of mitigating circumstances in this specific case and the state of the applicant’s health (see paragraph 8 above). Although it is true that the District Court was not obligated to accept the prosecution’s proposal pertaining to the possible suspension of the sentence, the fact remains that the argument concerning the applicant’s health was ignored in the District Court’s reasons for its judgment, even though this issue may have had some bearing on the decision to impose an effective sentence or not. Moreover, the rejection for purely formal reasons of the medical certificate submitted by the applicant (see paragraph 9 above), even while it was essential proof in support of her alibi, contributed to reinforcing, to some extent, the impression of the applicant.

42.  The Court proceeds to point out that the supervision of superior courts is of particular importance in the event of alleged failure to respect the guarantee of a fair trial, in so far as they can correct the defects of the original proceedings by setting aside the judgment under appeal (see mutatis mutandis Kyprianou v. Cyprus [GC], no. 73797/01, § 134, ECHR 2005 XIII, Chmelíř v. Czech Republic, n. 64935/01, § 68, ECHR 2005-IV). It observes that the applicant has raised in essence and expressly her grievance concerning the discriminatory reasoning of the first-instance court before the superior courts (see paragraphs 11, 13, and 14 above). It must be noted that her appeals were neither accepted by the Regional Court nor the Supreme Court of Cassation.

43.  Moreover, these courts simply supported the reasoning of the District Court with respect to the refusal to suspend the sentence (see paragraphs 12 and 15 above) and the argument relating to the discriminatory nature of her conviction to an effective sentence was not expressly addressed by either of them. Admittedly Article 6 § 1 does not require the domestic courts to reply in detail to all the arguments of the parties in dispute (see mutatis mutandis Hiro Balani v. Spain, 9 December 1994, § 27, series A no. 303-B). However, in the Court’s opinion, this was a relevant objection, to which the answer was of particular importance in view of the circumstances of the case. Thus, the domestic courts have not remedied the failure of the first-instance court and have not dispelled the present and serious doubt about its discriminatory nature.

44. These elements are sufficient for the Court to find that the applicant was indeed subjected to a difference in treatment based on her ethnicity, on account of the ambiguous reason for the courts’ decision to impose on her an effective prison sentencing.

45.  The Court then observes that in its observations the defending Government merely contested the existence of discriminatory treatment vis-à-vis the applicant and that it did not provide any evidence to justify the difference in treatment found in this specific case (see paragraphs 33 and 34 above). The Court, for its part, does not perceive any circumstances of an objective nature capable of justifying this situation. It wishes to stress in this respect the seriousness of the situation contested by the applicant, since, in contemporary European multicultural society, the eradication of racism has become a priority objective for all contracting States (see Sander v. United Kingdom, no. 34129/96, § 23, ECHR 2000 V). It further observes that the principle of equality of all citizens before the law is enshrined in the Bulgarian Constitution and that the Code of Criminal Procedure requires the courts to apply the criminal law uniformly vis-à-vis all citizens (see paragraph 16 above). It must be stated that the contested motivation of the courts in the present case seems to depart from these principles.

46.  The Court cannot speculate as to the outcome of the criminal proceedings against the applicant if the domestic courts had not taken the applicant’s ethnicity into account in refusing to impose upon her a suspended sentence. However, it considers that in the present case, the contested approach of the courts resulted in an unjustified difference of treatment in the enjoyment of fair trial guarantees based on the applicant’s ethnicity. There has therefore been a violation of Article 14 in conjunction with Article 6 § 1 of the Convention on this account.

2.  On the impartiality of domestic courts

47.  The applicant also denounces the lack of impartiality of the domestic courts on account of the arguments they put forth in support of the decision to impose an effective sentence. With regard to the finding of a violation of Article 14 in conjunction with Article 6 § 1 concerning the statement of reasons for the applicant’s conviction, and given the particular circumstances of this case, the Court considers that no separate issue arises with regard to the domestic courts’ impartiality. Therefore, there is no need to examine this grievance by the applicant separately.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

48.  According to Article 41 of the Convention,

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

49.  The applicant claims 50,000 euros (EUR) by virtue of the non-penitentiary damage to which she was subjected. She considers the most appropriate remedy to this violation of her guaranteed rights by Articles 14 and 6 § 1 to be the reopening of the criminal proceedings against her.

50.  The Government considers the sum claimed by the applicant by virtue of the non-penitentiary damage to be exorbitant.

51.  The Court considers that the applicant has suffered some non-penitentiary damage as a result of the violation of her right guaranteed by Article 14 in conjunction with Article 6 § 1 of the Convention. It considers that the finding of a violation of the aforementioned articles cannot suffice for the purposes of Article 41 of the Convention. Pronouncing its ruling in fairness, as required by that provision, it considers it appropriate to award the applicant the sum of EUR 5,000 for the non-penitentiary damage to which she has been subjected.

52.  The Court also recalls that, according to its well-establish case-law, it is necessary, in the event of a violation of Article 6 of the Convention, as much as possible, to place the applicant in a situation equivalent to that in which she would be found if there had been no breach of that provision’s requirements (Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). A judgment declaring a violation imposes upon the defending State the legal obligation not only to pay the concerned party the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers of the Council of Europe, general measures and/or, if appropriate, individual measures, to adopt in its domestic legal order in order to put an end to the breach and to make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (Ilaşcu and others v. Moldova and Russia [GC], No. 48787/99, § 487, ECHR 2004 VIII). In particular, in cases of non-compliance with one of the guarantees of Article 6 § 1 of the Convention, the most appropriate remedy is, in principle, to re-try the case or to reopen the proceedings in due course and in compliance with Article 6 (see Lungoci v. Romania, no. 62710/00, § 56, 26 January 2006, and Yanakiev v. Bulgaria, no. 40476/98, § 90, 10 August 2006, for the right of access to a court; Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004 IV, for the right to participate in the proceedings; and Gencel v. Turkey, no. 53431/99, § 27, 23 October 2003, and Tahir Duran v. Turkey, No. 40997/98, § 23, 29 January 2004, for the lack of independence and impartiality of the trial court.

53.  In this case, the Court observes that when it found a violation of one of the Convention’s provisions, the provisions of the Code of Criminal Procedure require the Attorney General to request the reopening of the proceedings before the criminal courts. This provision therefore appears to allow the applicant to have her case reconsidered. In any event, in view of the nature of the violation found in the present case (see paragraph 46 above), and taking into account the particular circumstances of the case, the Court considers the most appropriate remedy to be to reopen the criminal procedure.

B.  Costs and expenses

54.  The applicant also demands EUR 3,068 for the costs and expenses incurred before the Court, equivalent to 42 hours of legal work at an hourly rate of EUR 70, plus postage and translation fees. She presented the contract with her lawyers, together with a note of charges and excess fees. She asks the Court to order the payment of the sum in question directly to the account of her representatives.

55.  The Government considers the amount claimed to be exaggerated and unjustified. It emphasizes that the reasonableness of lawyers’ remunerations for the proceedings before the Court must be determined in relation to the minimum rates applicable in proceedings before the domestic courts.

56.  According to the case-law of the Court, an applicant can obtain reimbursement of her costs and expenses insofar as their reality, their necessity and the reasonableness of their rate are established. In regard to the hourly rate of EUR 70, the Court observes that it has not been claimed that this rate would be higher than the hourly rate charged, for example, by the large Bulgarian law firms (see mutatis mutandis Anguelova v. Bulgaria, no. 38361/97, § 176, ECHR 2002 IV).

57.  The Court then notes that the applicant has provided sufficient evidence for the totality of the amount claimed. In view of the documents in her possession and the aforementioned criteria, the Court considers the sum requested to be neither exorbitant nor unjustified. After deducting the amount awarded to the applicant by the Council of Europe for legal aid, EUR 850, the Court awards her the sum of EUR 2, 218 by way of costs and expenses, to be deposited into the accounts of her representatives.

C.  Default interest

58.  The Court considers it appropriate to model the default interest rate on the interest rate of the European Central Bank’s marginal lending facility of three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the request admissible;

2.  Holds that there has been a violation of Article 14 in conjunction with Article 6 § 1 of the Convention on account of the reasons given by the domestic courts;

3.  Holds that it is not necessary to separately examine the applicant’s grievance concerning the impartiality of the domestic courts;

4.  Holds

a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted to Bulgarian levs at the rate applicable at the date of payment:

b)  from the expiry of the aforementioned period until payment, such amounts shall be increased by simple interest at a rate equal to that of the marginal lending facility of the European Central Bank applicable during that period, increased by three percentage points;

5.  Dismisses the claim for just satisfaction for the remainder.

Done in French, and delivered in writing on 25 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


SUBJECT-MATTER OF THE CASE

1.  The case concerns the justification for and reasonableness of the applicant’s detention under Article 5 § 3 of the Convention, and the absence of an enforceable right to compensation in that regard under Article 5 § 5 of the Convention.

1.  The case concerns the justification for and reasonableness of the applicant’s detention under Article 5 § 3 of the Convention, and the absence of an enforceable right to compensation in that regard under Article 5 § 5 of the Convention.

2.  On 16 September 2017 the Leninskyi District Court of Dnipropetrovsk ordered the applicant’s pre-trial detention for a period of sixty days in the context of criminal proceedings on suspicion of robbery. The relevant decision stated, without providing specific details, that he was accused of a serious crime and might otherwise escape and hinder the investigation or continue his criminal activity, and that the application of less intrusive preventive measures would not ensure the proper conduct of the proceedings.

2.  On 16 September 2017 the Leninskyi District Court of Dnipropetrovsk ordered the applicant’s pre-trial detention for a period of sixty days in the context of criminal proceedings on suspicion of robbery. The relevant decision stated, without providing specific details, that he was accused of a serious crime and might otherwise escape and hinder the investigation or continue his criminal activity, and that the application of less intrusive preventive measures would not ensure the proper conduct of the proceedings.

2.  On 16 September 2017 the Leninskyi District Court of Dnipropetrovsk ordered the applicant’s pre-trial detention for a period of sixty days in the context of criminal proceedings on suspicion of robbery. The relevant decision stated, without providing specific details, that he was accused of a serious crime and might otherwise escape and hinder the investigation or continue his criminal activity, and that the application of less intrusive preventive measures would not ensure the proper conduct of the proceedings.

3.  On 19 October 2017 the trial court examined the bill of indictment and case file and adjourned the hearing until 31 October 2017. On that day it extended the applicant’s detention for another two months, holding that the circumstances that had led to the initial decision to place him in detention pending trial had not changed. The court’s decision was not amenable to appeal.

3.  On 19 October 2017 the trial court examined the bill of indictment and case file and adjourned the hearing until 31 October 2017. On that day it extended the applicant’s detention for another two months, holding that the circumstances that had led to the initial decision to place him in detention pending trial had not changed. The court’s decision was not amenable to appeal.

4.  On 18 December 2017, 9 February, 4 April, 25 May, 13 July, 3 September, 22 October and 5 December 2018, and 23 January, 14 March, 10 May and 25 June 2019 the trial court extended the applicant’s detention for reasons identical to those in its decision of 31 October 2017. None of the above-mentioned decisions were amenable to appeal, with the exception of that of 25 June 2019, which indicated, without referring to the relevant procedure, that it could be appealed against.

5.  On 13 June 2019 the Constitutional Court (“the CCU”), by decision no. 4-р/2019, declared unconstitutional the provisions of Article 392 § 2 of the Code of Criminal Procedure (“the CCP”), under which there was no possibility of appealing against court decisions extending detention during trial. It held that Parliament should amend the CCP in accordance with its decision, by introducing a mechanism that would guarantee detained persons the right to liberty pending trial.

6.  On 24 July 2019 the trial court found the applicant guilty of robbery and sentenced him to nine years’ imprisonment with confiscation of all his property.

7.  On 27 May 2020 the Dnipropetrovsk Regional Court of Appeal quashed the conviction and ordered a retrial. By the same decision it extended the applicant’s detention until 15 July 2020, on the grounds that he was accused of a serious crime and that the risks established when ordering and extending his detention (see paragraphs 2 and 3 above) – namely that he might evade investigation or continue his criminal activity – still persisted. No factual basis for this assessment was cited.

8.  On 18 August 2020 the Dnipro Court of Appeal dismissed as unsubstantiated an appeal by the applicant against a further extension of his detention by the trial court on 3 July 2020 concerning the period from 3 July to 30 August 2020. The appellate court’s decision did not refer to the procedure used in the course of the appellate review.

9.  At the time the parties exchanged their observations (March 2021) the applicant was still in detention pending trial. The Court was not provided with copies of relevant courts’ decisions regarding the applicant’s detention after 30 August 2020.

10.  On 2 December 2020 Parliament enacted Law no. 1027-IX, which introduced amendments to the CCP with a view to establishing a procedure for appealing against trial court decisions ordering, modifying or extending the accused’s detention during trial. In particular, Article 4221 of the CCP established the procedure for reviewing such trial court decisions. The amendments entered into force on 14 January 2021.

THE COURT’S ASSESSMENT

SCOPE OF THE CASE

11.  After the communication of the present case, the applicant complained under Article 5 § 4 of the Convention about lengthy examination of his application for release submitted on 27 April 2019. Since this new complaint is not an elaboration of the original complaints on which the parties have commented, it is inappropriate to take this matter up in the context of the present case (see, mutatis mutandis, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).

ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

12.  The applicant complained under Article 5 § 3 of the Convention that his detention from 19 October 2017 onwards had been unjustified and lengthy.

13.  The Government referred to the provisions of Article 392 of the CCP and the Constitutional Court’s judgment of 13 June 2019 (see paragraph 5 above), arguing that the applicant had had a right to appeal against the trial court’s decisions delivered after the adoption of that judgment but had failed to do so and had therefore not complied with the requirements of Article 35 of the Convention. The applicant disagreed.

14.  The Court notes that the Government’s non-exhaustion objection may only be relevant with regard to the applicant’s alleged failure to appeal against the trial court’s decision of 25 June 2019, since from 24 July 2019 to 27 May 2020 he was detained after conviction for the purposes of Article 5 § 1 (a) of the Convention, and the last available trial court’s decision of 3 July 2020 was appealed against by the applicant.

15.  The relevant principles of the Court’s case-law concerning the rule of exhaustion of domestic remedies are set out in Mocanu and Others v. Romania ([GC], nos. 10865/09 and 2 others, §§ 220-26, ECHR 2014 (extracts)).

16.  In this connection the Court notes that the CCU’s decision relied upon by the Government obliged the authorities to amend the CCP by introducing a mechanism that would guarantee detained persons the right to liberty pending trial. Although the provision of the CCP limiting the right to appeal was declared unconstitutional on 13 June 2019, the relevant appeal procedure did not exist in law until 14 January 2021 when the Parliament made relevant legislative amendments.

17.  Despite the fact that the Government did not provide any further substantiation and evidence in support of their non-exhaustion plea, the Court cannot lose sight of the relevant domestic case-law. It notes the Supreme Court’s judgment of 7 October 2020, in case no. 404/1248/19, in which it allowed the accused person’s appeal on points of law against the lower courts’ refusal to hear an appeal against extension of detention pending trial. The Supreme Court held that the legislature’s failure to amend the CCP in accordance with the CCU’s decision of 13 June 2019 could not deprive the defendant of the right to appeal.

18.  The Court observes that neither the above-mentioned Supreme Court’s decision nor the Government’s observations indicate which procedure of examination of the accused person’s appeal was to be followed at the appellate review. In this connection it is impossible to assess the effectiveness of the above appellate review and its compatibility with the Convention requirements regarding the exhaustion of domestic remedies.

19.  The Court therefore finds that for the purposes of examination of the applicant’s case, the decision of the Supreme Court of 7 October 2020 is not sufficient to find it established that there existed with certainty, between June 2019 and January 2021, a remedy that was available and effective to satisfy the requirements of Article 35 of the Convention.

20.  In view of the foregoing, the Court dismisses the Government’s nonexhaustion objection.

21.  In examination of the merits of the applicant’s complaint, the Court, referring to its applicable general principles concerning the justification for and reasonableness of a person’s detention (see Grubnyk v. Ukraine, no. 58444/15, §§ 110-15, 17 September 2020), notes that the period of deprivation of liberty to be taken into consideration in the present case, as indicated by the applicant and not contested by the Government, started on 19 October 2017, the date the trial began (see paragraph 3 above), and apparently is still ongoing. His detention shall therefore be regarded as a continuing situation (see Svipsta v. Latvia, no. 66820/01, § 116, ECHR 2006III (extracts); and Popovych v. Ukraine, no. 44704/11, § 33, 22 April 2021). It further notes that it has only been provided with the relevant courts decisions authorising the applicant’s detention until 30 August 2020. Deducting the period from 24 July 2019 to 27 May 2020, when he was detained after conviction for the purposes of Article 5 § 1 (a) of the Convention, the overall period of detention to be assessed for compliance with Article 5 § 3 is therefore approximately two years.

22.  The Court observes that in extending the applicant’s detention the domestic courts mainly referred to the reasoning for his initial placement in detention, without any updated details. The decisions on detention were couched in general terms and contained repetitive phrases and did not suggest that the courts made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances.

23.  The Court next observes that the reasoning given in justification of the applicant’s pre-trial detention did not evolve with the passage of time and that no consideration to apply any alternative preventive measures was made. By referring essentially to the seriousness of the charge and the hypothetical risk that the applicant might abscond, the authorities maintained his detention on grounds which cannot be regarded as sufficient.

24.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 3 of the Convention in the light of its findings in Ignatov v. Ukraine (no. 40583/15, §§ 41-42, 15 December 2016).

OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

25.  The applicant also raised a complaint under Article 5 § 5 of the Convention that he had had no enforceable right to compensation under domestic law, an issue covered by the wellestablished case-law of the Court. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it discloses a violation of Article 5 § 5 of the Convention in the light of its findings in Korban judgment (cited above, § 201, with further references).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  The applicant claimed 5,900 euros (EUR) in respect of non-pecuniary damage. He also claimed EUR 1,425 for the costs and expenses incurred before the Court and EUR 10 for postage expenses. The legal fees were supported by a legal services agreement stipulating that the applicant was to pay his lawyer’s fees after completion of the proceedings, in an amount not exceeding the Court’s award under this head, and a certificate of services rendered. The postage expenses were supported by a receipt. The applicant requested that the amounts be paid directly into his representative’s bank account.

27.  The Government contested the applicant’s claims.

28.  The Court awards the applicant EUR 1,200 in respect of nonpecuniary damage, plus any tax that may be chargeable to the applicant.

29.  As regards the applicant’s claims for costs and expenses, following the Court’s findings in the case of Belousov v. Ukraine (no. 4494/07, § 115, 7 November 2013), the legal fees due to be paid by the applicant appear to have been “actually incurred”. However, the Court considers the claim excessive and, having regard to the documents in its possession, considers it reasonable to award the sum of EUR 500 covering costs under all heads, plus any tax that may be chargeable to the applicant, to be paid directly into Mr Sosyedko’s bank account, as requested by the applicant (see Belousov, cited above, §§ 11617).

30.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Declares the application admissible;

Holds that there has been a violation of Article 5 § 3 of the Convention;

Holds that there has been a violation of Article 5 § 5 of the Convention;

Holds

that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.   The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 9 September 1994, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention.  It originated in an application (no. 20190/92) against the United Kingdom of Great Britain and  lodged with the Commission under Article 25 (art. 25) by Mr C.R., a British citizen, on 31 March 1992.

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the  recognised the compulsory jurisdiction of the Court (Article 46) (art. 46).  The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 7 (art. 7) of the Convention.

2.   In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).

3.   On 24 September 1994 the President of the Court decided, under Rule 21 para. 6 and in the interests of the proper administration of justice, that a single Chamber should be constituted to consider both the instant case and the case of S.W. v. the  .

4.   The Chamber to be constituted for this purpose included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)).  On 24 September 1994, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Gölcüklü, Mr R. Macdonald, Mr C. Russo, Mr J. De Meyer, Mr S.K. Martens, Mr F. Bigi and Mr U. Lohmus (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).  Subsequently, Mr P. Jambrek, substitute judge, replaced Mr Macdonald, who was unable to take part in the further consideration of the case (Rules 22 para. 1 and 24 para. 1).

5.   As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the United Kingdom Government ("the Government"), the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38).  Pursuant to the order made in consequence, the Registrar received the applicant’s memorial on 5 April 1995 and the Government’s memorial on 6 April.  On 17 May 1995 the Secretary to the Commission informed the Registrar that the Delegate did not wish to reply in writing.

6.   In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, , on 20 June 1995.  The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

(b) for the Commission

(c) for the applicant

The Court heard addresses by Mr Mucha, Mr Hill and Mr Moses and also replies to questions put by some of its members individually.

AS TO THE FACTS

I.   PARTICULAR CIRCUMSTANCES OF THE CASE

7.   The applicant is a British citizen, born in 1952, and lives in Leicester.

8.   The applicant married his wife on 11 August 1984.  They had one son, who was born in 1985.  On 11 November 1987 the couple were separated for a period of about two weeks before becoming reconciled.

9.   On 21 October 1989, as a result of further matrimonial difficulties, his wife left the matrimonial home with their son and returned to live with her parents.  She had by this time already consulted solicitors regarding her matrimonial affairs and had left a letter for the applicant in which she informed him that she intended to petition for divorce.  However no legal proceedings had been taken by her before the occurrence of the incident which gave rise to criminal proceedings.  The applicant had on 23 October 1989 spoken to his wife by telephone indicating that it was his intention also to "see about a divorce".

10.   Shortly before 9 p.m. on 12 November 1989, twenty-two days after his wife had returned to live with her parents, and while the parents were out, the applicant forced his way into the parents’ house and attempted to have sexual intercourse with the wife against her will. In the course of that attempt he assaulted her, in particular by squeezing her neck with both hands.

11.   The applicant was charged with attempted rape and assault occasioning actual bodily harm.  At his trial before the Leicester Crown Court on 30 July 1990 it was submitted that the charge of rape was one which was not known to the law by reason of the fact that the applicant was the husband of the alleged victim.  He relied on a statement by Sir Matthew Hale CJ in his History of the Pleas of the Crown published in 1736:

"But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract."

12.   In his judgment ([1991] 1 All England Law Reports 747) Mr Justice Owen noted that it was a statement made in general terms at a time when marriage was indissoluble.  Hale CJ had been expounding the common law as it seemed to him at that particular time and was doing it in a book and not with reference to a particular set of circumstances presented to him in a prosecution.  The bald statement had been reproduced in the first edition of Archbold on Criminal Pleadings, Evidence and Practice (1822, p. 259) in the following terms: "A husband also cannot be guilty of rape upon his wife."

Mr Justice Owen further examined a series of court decisions (R. v. Clarence [1888] 22 Queen’s Bench Division 23, [1886-90] All England Law Reports 113; R. v. Clarke [1949] 2 All  Law Reports 448; R. v. Miller [1954] 2 All  Law Reports 529; R. v. Reid [1972] 2 All  Law Reports 1350; R. v. O’Brien [1974] 3 All  Law Reports 663; R. v. Steele [1976] 65 Criminal Appeal Reports 22; R. v. Roberts [1986] Criminal Law Reports 188; see paragraphs 19-22 below), recognising that a wife’s consent to marital intercourse was impliedly given by her at the time of marriage and that the consent could be revoked on certain conditions.  He added:

"I am asked to accept that there is a presumption or an implied consent by the wife to sexual intercourse with her husband; with that, I do not find it difficult to agree.  However, I find it hard to ... believe that it ever was the common law that a husband was in effect entitled to beat his wife into submission to sexual intercourse ...  If it was, it is a very sad commentary on the law and a very sad commentary upon the judges in whose breasts the law is said to reside.  However, I will nevertheless accept that there is such an implicit consent as to sexual intercourse which requires my consideration as to whether this accused may be convicted for rape."

On the question of what circumstances would suffice in law to revoke the consent, Mr Justice Owen noted that it may be brought to an end, firstly, by a court order or equivalent.  Secondly, he observed, it was apparent from the Court of Appeal’s judgment in the case of R. v. Steele ([1976] 65 Criminal Appeal Reports 22) that the implied consent could be withdrawn by agreement between the parties.  Such an agreement could clearly be implicit; there was nothing in the case-law to suggest the contrary.  Thirdly, he was of the view that the common law recognised that a withdrawal of either party from cohabitation, accompanied by a clear indication that consent to sexual intercourse has been terminated, would amount to a revocation of the implicit consent.  He concluded that both the second and third exceptions to the matrimonial immunity against prosecution for rape applied in the case.

Following the judge’s ruling, the applicant pleaded guilty to attempted rape and assault occasioning actual bodily harm, and was sentenced to three years’ imprisonment.

13.   The applicant appealed to the Court of Appeal, Criminal Division, on the ground that Mr Justice Owen had made a wrong decision in law in ruling that a man may rape his wife when the consent to intercourse which his wife gave on entering marriage had been revoked neither by a court order nor by agreement between the parties.

14.   On 14 March 1991 the Court of Appeal, Criminal Division (Lord Lane CJ, Sir Stephen Brown P, Watkins, Neill and Russell LJJ), unanimously dismissed the appeal ([1991] 2 All England Law Reports 257).   noted that the general proposition of Sir Matthew Hale in his History of the Pleas of the Crown (1736) (see paragraph 11 above) that a man could not commit rape upon his wife was generally accepted as a correct statement of the common law at that epoch.  Further,  made an analysis of previous court decisions, from which it appears that in R. v. Clarence (1888), the first reported case of this nature, some judges of the Court for Crown Cases Reserved had objected to the principle.  In the next reported case, R. v. Clarke (1949), the trial court had departed from the principle by holding that the husband’s immunity was lost in the event of a court order directing that the wife was no longer bound to cohabit with him.  Almost every court decision thereafter had made increasingly important exceptions to the marital immunity (see paragraph 22 below). The Court of Appeal had accepted in R. v. Steele (1976) that the implied consent to intercourse could be terminated by agreement.  This was confirmed by the Court of Appeal in R. v. Roberts (1986), where it held that the lack of a non-molestation clause in a deed of separation, concluded on expiry of a non-molestation order, did not revive the consent to intercourse.

added the following observations:

"Ever since the decision of Byrne J in R. v. Clarke in 1949, courts have been paying lip-service to Hale CJ’s proposition, whilst at the same time increasing the number of exceptions, the number of situations to which it does not apply.  This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes.

There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour.

...

It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present-day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant parliamentary enactment.  That in the end comes down to a consideration of the word ‘unlawful’ in the 1976 Act."

then critically examined the different strands of interpretation of section 1 (1) (a) of the 1976 Act in the case-law, including the argument that the term "unlawful" (see paragraph 17 below) excluded intercourse within marriage from the definition of rape.  He concluded:

"...  [W]e do not consider that we are inhibited by the 1976 Act from declaring that the husband’s immunity as expounded by Hale CJ no longer exists.  We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim."

15.   The Court of Appeal granted the applicant leave to appeal to the House of Lords, which unanimously upheld the Court of Appeal’s judgment on 23 October 1991 ([1991] 4 All  Law Reports 481). Lord Keith of Kinkel, joined by Lord Brandon of Oakbrook, Lord Griffiths, Lord Ackner and Lord Lowry, gave, inter alia, the following reasons:

"For over 150 years after the publication of Hale’s work there appeared to have been no reported case in which judicial consideration was given to his proposition.  The first such case was R. v. Clarence [1888] 22 Queen’s Bench Division 23, [1886-90] All England Law Reports 133 ...  It may be taken that the proposition was generally regarded as an accurate statement of the common law of .  The common law is, however, capable of evolving in the light of changing social, economic and cultural developments.  Hale’s proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail.  Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife was the subservient chattel of the husband.  Hale’s proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time.  In modern times any reasonable person must regard that conception as quite unacceptable.

...

The position then is that that part of Hale’s proposition which asserts that a wife cannot retract the consent to sexual intercourse which she gives on marriage has been departed from in a series of decided cases.  On grounds of principle there is no good reason why the whole proposition should not be held inapplicable in modern times.  The only question is whether section 1 (1) of the 1976 Act presents an insuperable obstacle to that sensible course.  The argument is that ‘unlawful’ in that subsection means outside the bond of marriage.

...  The fact is that it is clearly unlawful to have sexual intercourse with any woman without her consent, and that the use of the word in the subsection adds nothing.  In my opinion there are no rational grounds for putting the suggested gloss on the word, and it should be treated as being mere surplusage in this enactment ...

I am therefore of the opinion that section 1 (1) of the 1976 Act presents no obstacle to this House declaring that in modern times the supposed marital exception in rape forms no part of the law of .  The Court of Appeal, Criminal Division, took a similar view [in the present case].  Towards the end of the judgment of that court Lord Lane CJ said ...:

I respectfully agree."

II.   RELEVANT DOMESTIC LAW AND PRACTICE

A. The offence of rape

16.   The offence of rape, at common law, was traditionally defined as unlawful sexual intercourse with a woman without her consent by force, fear or fraud.  By section 1 of the Sexual Offences Act 1956, "it is a felony for a man to rape a woman".

17.   Section 1 (1) of the Sexual Offences (Amendment) Act 1976 provides, in so far as it is material, as follows:

"For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if  -

(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it ..."

18.   On 3 November 1994 the Criminal Justice and Public Order Act 1994 replaced the above provisions by inserting new subsections to section 1 of the Sexual Offences Act 1956, one of the effects of which was to remove the word "unlawful":

B. Marital immunity

19.   Until the proceedings in the applicant’s case the English courts, on the few occasions when they were confronted with the issue whether directly or indirectly, had always recognised at least some form of immunity attaching to a husband from any charge of rape or attempted rape by reason of a notional or fictional consent to intercourse deemed to have been given by the wife on marriage.  The proposition of Sir Matthew Hale quoted above (see paragraph 11) has been upheld until recently, for example in the case of R. v. Kowalski ([1987] 86 Criminal Appeal Reports 339), which concerned the question whether or not a wife had impliedly consented to acts which if performed against her consent would amount to an indecent assault.  Mr Justice Ian Kennedy, giving the judgment of the court, stated, obiter:

"It is clear, well-settled and ancient law that a man cannot, as actor, be guilty of rape upon his wife."

And he went on to say that that principle was

"dependent upon the implied consent to sexual intercourse which arises from the married state and which continues until that consent is put aside by decree nisi, by a separation order or, in certain circumstances, by a separation agreement".

In another example, Lord Justice O’Connor in the R. v. Roberts case ([1986] Criminal Law Reports 188) held:

"The status of marriage involves that the woman has given her consent to her husband having intercourse with her during the subsistence of the marriage ... she cannot unilaterally withdraw it."

20.   However, on 5 November 1990, Mr Justice Simon Brown held in R. v. C. ([1991] 1 All England Law Reports 755) that the whole concept of marital exemption in rape was misconceived:

"Were it not for the deeply unsatisfactory consequence of reaching any other conclusion on the point, I would shrink, if sadly, from adopting this radical view of the true position in law.  But adopt it I do.  Logically, I regard it as the only defensible stance, certainly now as the law has developed and arrived in the late twentieth century.  In my judgment, the position in law today is, as already declared in , that there is no marital exemption to the law of rape.  That is the ruling I give."

On the other hand, on 20 November 1990, in R. v. J. ([1991] 1 All England Law Reports 759) Mr Justice Rougier upheld the general common law rule, considering that the effect of section 1 (1) (a) of the 1976 Act was that the marital exemption embodied in Hale’s proposition was preserved, subject to those exceptions established by cases decided before the Act was passed.  He further stated:

"... there is an important general principle to be considered here, and that is that the law, especially the criminal law, should be clear so that a man may know where he stands in relation to it.  I am not being so fanciful as to suppose that this defendant carefully considered the authorities and took Counsel’s advice before behaving as alleged, but the basic principle extends a long way beyond the bounds of this case and should operate to prevent a man being convicted by means of decisions of the law ex post facto."

On 15 January 1991, Mr Justice Swinton Thomas in R. v. S. followed Rougier J, though he considered that it was open to judges to define further exceptions.

Both Rougier and Swinton Thomas JJ stated that they regretted that section 1 (1) (a) of the 1976 Act precluded them from taking the same line as Simon Brown J in R. v. C.

21.   In its Working Paper 116 "Rape within Marriage" completed on 17 September 1990, the Law Commission stated:

"2.8 It is generally accepted that, subject to exceptions (considered ... below), a husband cannot be convicted of raping his wife ...  Indeed there seems to be no recorded prosecution before 1949 of a husband for raping his wife ...

...

2.11 The immunity has given rise to a substantial body of law about the particular cases in which the exemption does not apply. The limits of this law are difficult to state with certainty. Much of it rests on first instance decisions which have never been comprehensively reviewed at appellate level ..."

22.   The Law Commission identified the following exceptions to a husband’s immunity:

- where a court order has been made, in particular:

(a)  where an order of the court has been made which provides that a wife should no longer be bound to cohabit with her husband (R. v. Clarke [1949] 33 Criminal Appeal Reports 216);

(b)  where there has been a decree of judicial separation or a decree nisi of divorce on the ground that "between the pronouncement of decree nisi and the obtaining of a decree absolute a marriage subsists as a mere technicality" (R. v. O’Brien [1974] 3 All England Law Reports 663);

(c)  where a court has issued an injunction restraining the husband from molesting the wife or the husband has given an undertaking to the court that he will not molest her (R. v. Steele [1976] 65 Criminal Appeal Reports 22);

(d)  in the case of R. v. Roberts ([1986] Criminal Law Reports 188), the Court of Appeal found that where a non-molestation order of two months had been made in favour of the wife her deemed consent to intercourse did not revive on expiry of the order;

- where no court order has been made:

(e)  Mr Justice Lynskey observed, obiter, in R. v. Miller ([1954] 2 Queen’s Bench Division 282) that a wife’s consent would be revoked by an agreement to separate, particularly if it contained a non-molestation clause;

(f)   stated, obiter, in R. v. Steele that a separation agreement with a non-cohabitation clause would have that effect.

23.   The Law Commission noted that it was stated in R. v. Miller and endorsed by the Court of Appeal in R. v. Steele that lodging a petition for divorce would not be sufficient.

It referred also to the ruling by Mr Justice Owen in the present case where an implied agreement to separate was considered sufficient to revoke the immunity and that, even in the absence of agreement, the withdrawal from cohabitation by either party, accompanied by a clear indication that consent to sexual intercourse had been terminated, would operate to exclude the immunity.  It found this view difficult to reconcile with the approach in Steele that filing a divorce petition was "clearly" not sufficient.  The ruling in the present case appeared substantially to extend what had previously been thought to be the law, although it emphasised that factual separation, and not mere revocation of consent to intercourse, was necessary to remove the immunity.

24.   The Law Commission pointed out that its inquiry was unusual in one important respect.  It was usual practice, when considering the reform of common law rules, to consider the grounds expressed in the cases or other authorities for the current state of the law, in order to analyse whether those grounds were well-founded.  However, that step was of little assistance here, partly because there was little case-law on the subject but principally because there was little dispute that the reason set out in the authorities for the state of the law could not be supported (paragraph 4.1 of the Working Paper).  The basis of the law was that intercourse against the wife’s actual will was excluded from the law of rape by the fictional deemed consent to intercourse perceived by Sir Matthew Hale in his dictum.  This notion was not only quite artificial but, certainly in the modern context, was also quite anomalous.  Indeed, it was difficult to find any current authority or commentator who thought that it was even remotely supportable.  The artificial and anomalous nature of the marital immunity could be seen if it was reviewed against the current law on the legal effects of marriage (paragraph 4.2).

The concept of deemed consent was artificial because the legal consequences of marriage were not the result of the parties’ mutual agreement.  Although the parties should have legal capacity to enter into the marriage contract and should observe the necessary formalities, they were not free to decide the terms of the contract; marriage was rather a status from which flow certain rights or obligations, the contents of which were determined by the law from time to time.  This point had been emphasised by Mr Justice Hawkins in R. v. Clarence (1888) when he said: "The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part, but is mere submission to an obligation imposed on her by law" (paragraph 4.3).

In this connection, the Law Commission stressed that "[t]he rights and duties arising from marriage have, however, changed over the years as the law has adapted to changing social conditions and values. The more modern view of marriage is that it is a partnership of equals" (paragraph 4.4).  It then gave examples of such changes in the law and added:

"4.11 This gradual recognition of mutual rights and obligations within marriage, described in paragraphs 4.3-4.10 above, in our view demonstrates clearly that, whatever other arguments there may be in favour of the immunity, it cannot be claimed to be in any way justified by the nature of, or by the law governing, modern marriage."

25.   The Law Commission made, inter alia, the provisional proposal that "the present marital immunity be abolished in all cases" (paragraph 5.2 of the Working Paper).

PROCEEDINGS BEFORE THE COMMISSION

26.   In his application of 31 March 1992 (no. 20190/92) to the Commission, the applicant complained that, in breach of Article 7 (art. 7) of the Convention, he was convicted in respect of conduct, namely the attempted rape upon his wife, which at the relevant time did not, so he submitted, constitute a criminal offence.

27.   The Commission declared the application admissible on 14 January 1994.  In its report of 27 June 1994 (Article 31) (art. 31), the Commission expressed the opinion that there had been no violation of Article 7 para. 1 (art. 7-1) of the Convention (fourteen votes to three).  The full text of the Commission’s opinion and of the three separate opinions contained in the report is reproduced as an annex to this judgment .

FINAL SUBMISSIONS MADE TO THE COURT

28.   At the hearing on 20 June 1995 the Government, as they had done in their memorial, invited the Court to hold that there had been no violation of Article 7 (art. 7) of the Convention.

29.   On the same occasion the applicant reiterated the request to the Court stated in his memorial to find that there had been a breach of Article 7 (art. 7) and to award him just satisfaction under Article 50 (art. 50) of the Convention.

AS TO THE LAW

I.   ALLEGED VIOLATION OF ARTICLE 7 (art. 7) OF THE CONVENTION

30.   The applicant complained that his conviction and sentence for attempted rape of his wife constituted retrospective punishment in breach of Article 7 (art. 7) of the Convention, which reads:

"1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.  Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2.   This Article (art. 7) shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations."

31.   The Government and the Commission disagreed with the above contention.

A. General principles

32.   The guarantee enshrined in Article 7 (art. 7), which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 (art. 15) in time of war or other public emergency.  It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment.

33.   Accordingly, as the Court held in its Kokkinakis v. Greece judgment of 25 May 1993 (Series A no. 260-A, p. 22, para. 52), Article 7 (art. 7) is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy.  From these principles it follows that an offence must be clearly defined in the law.  In its aforementioned judgment the Court added that this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable.  The Court thus indicated that when speaking of "law" Article 7 (art. 7) alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability (see, as a recent authority, the Tolstoy Miloslavsky v. the  judgment of 13 July 1995, Series A no. 316-B, pp. 71-72, para. 37).

34.   However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation.  There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the , as in the other Convention States, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. Article 7 (art. 7) of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.

B. Application of the foregoing principles

35.   The applicant maintained that the general common law principle that a husband could not be found guilty of rape upon his wife, albeit subject to certain limitations, was still effective on 12 November 1989, when he committed the acts which gave rise to the charge of attempted rape paragraph 10 above).  A succession of court decisions before and also after that date, for instance on 20 November 1990 in R. v. J. (see paragraph 20 above), had affirmed the general principle of immunity.  It was clearly beyond doubt that as at 12 November 1989 no change in the law had been effected, although one was being mooted.  The removal of the immunity by the Court of Appeal on 14 March 1991 and the House of Lords on 23 October 1991 occurred by way of direct reversal, not clarification, of the law.

When the House of Commons debated the Bill for the Sexual Offences (Amendment) Act 1976 (see paragraph 17 above), different views on the marital immunity were expressed.  On the advice of the Minister of State to await a report of the Criminal Law Revision Committee, an amendment that would have abolished the immunity was withdrawn and never voted upon.  In its report, which was not presented until 1984, the Criminal Law Revision Committee recommended that the immunity should be maintained and that a new exception should be created.

In 1988, when considering certain amendments to the 1976 Act, Parliament had the opportunity to take out the word "unlawful" in section 1 (1) (a) (see paragraph 17 above) or to introduce a new provision on marital intercourse, but took no action in this respect.

On 17 September 1990 the Law Commission provisionally recommended that the immunity rule be abolished (see paragraphs 24 and 25 above). However, the debate was pre-empted by the Court of Appeal’s and the House of Lords’ rulings in the applicant’s case (see paragraphs 14 and 15 above).  In the applicant’s submission, these rulings altered the law retrospectively, which would not have been the case had the Law Commission’s proposal been implemented by Parliament.  Consequently, he concluded, when Parliament in 1994 removed the word "unlawful" from section 1 of the 1976 Act (see paragraph 18 above), it did not merely restate the law as it had been in 1976.

36.   The applicant further argued that in examining his complaint under Article 7 para. 1 (art. 7-1) of the Convention, the Court should not consider his conduct in relation to any of the exceptions to the immunity rule.  The issue was never resolved by the national courts, as the sole ground on which the applicant’s conviction rested was in fact the removal of the common law fiction by the Court of Appeal and the House of Lords.

37.   Should a foreseeability test akin to that under Article 10 para. 2 (art. 10-2) apply in the instant case, the applicant was of the opinion that it had not been satisfied.  Although the Court of Appeal and the House of Lords did not create a new offence or change the basic ingredients of the offence of rape, they were extending an existing offence to include conduct which until then was excluded by the common law.  They could not be said to have adapted the law to a new kind of conduct but rather to a change of social attitudes.  To extend the criminal law, solely on such a basis, to conduct which was previously lawful was precisely what Article 7 (art. 7) of the Convention was designed to prevent.  Moreover, the applicant stressed, it was impossible to specify with precision when the change in question had occurred.  In November 1989, change by judicial interpretation was not foreseen by the Law Commission, which considered that a parliamentary enactment would be necessary.

38.   The Government and the Commission were of the view that by November 1989 there was significant doubt as to the validity of the alleged marital immunity for rape.  This was an area where the law had been subject to progressive development and there were strong indications that still wider interpretation by the courts of the inroads on the immunity was probable.  In particular, given the recognition of women’s equality of status with men in marriage and outside it and of their autonomy over their own bodies, the adaptation of the ingredients of the offence of rape was reasonably foreseeable, with appropriate legal advice, to the applicant.  He was not convicted of conduct which did not constitute a criminal offence at the time when it was committed.

In addition, the Government pointed out, on the basis of agreed facts Mr Justice Owen had found that there was an implied agreement between the applicant and his wife to separation and to withdrawal of the consent to intercourse.  The circumstances in his case were thus covered by the exceptions to the immunity rule already stated by the English courts.

39.   The Court notes that the applicant’s conviction for attempted rape was based on the statutory offence of rape in section 1 of the 1956 Act, as further defined in section 1 (1) of the 1976 Act (see paragraphs 16 and 17 above).  The applicant does not dispute that the conduct for which he was convicted would have constituted attempted rape within the meaning of the statutory definition of rape as applicable at the time, had the victim not been his wife.  His complaint under Article 7 (art. 7) of the Convention relates solely to the fact that he could not avail himself of the marital immunity under common law because, so he submitted, it had been retrospectively abolished.

40.   It is to be observed that a crucial issue in the judgment of the Court of Appeal (summarised at paragraph 14 above) related to the definition of rape in section 1 (1) (a) of the 1976 Act: "unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it".  The question was whether "removal" of the marital immunity would conflict with the statutory definition of rape, in particular whether it would be prevented by the word "unlawful".  The Court of Appeal carefully examined various strands of interpretation of the provision in the case-law, including the argument that the term "unlawful" excluded intercourse within marriage from the definition of rape.  In this connection, the Court recalls that it is in the first place for the national authorities, notably the courts, to interpret and apply national law (see, for instance, the Kemmache v.  (no. 3) judgment of 24 November 1994, Series A no. 296-C, pp. 86-87, para. 37).  It sees no reason to disagree with the Court of Appeal’s conclusion, which was subsequently upheld by the House of Lords (see paragraph 15 above), that the word "unlawful" in the definition of rape was merely surplusage and did not inhibit them from "removing a common law fiction which had become anachronistic and offensive" and from declaring that "a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim" (see paragraph 14 above).

41.   The decisions of the Court of Appeal and then the House of Lords did no more than continue a perceptible line of case-law development dismantling the immunity of a husband from prosecution for rape upon his wife (for a description of this development, see paragraphs 14 and 20-25 above).  There was no doubt under the law as it stood on 12 November 1989 that a husband who forcibly had sexual intercourse with his wife could, in various circumstances, be found guilty of rape. Moreover, there was an evident evolution, which was consistent with the very essence of the offence, of the criminal law through judicial interpretation towards treating such conduct generally as within the scope of the offence of rape.  This evolution had reached a stage where judicial recognition of the absence of immunity had become a reasonably foreseeable development of the law (see paragraph 34 above).

42.   The essentially debasing character of rape is so manifest that the result of the decisions of the Court of Appeal and the House of Lords - that the applicant could be convicted of attempted rape, irrespective of his relationship with the victim - cannot be said to be at variance with the object and purpose of Article 7 (art. 7) of the Convention, namely to ensure that no one should be subjected to arbitrary prosecution, conviction or punishment (see paragraph 32 above).  What is more, the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity not only with a civilised concept of marriage but also, and above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom.

43.   Having reached this conclusion, the Court does not find it necessary to enquire into whether the facts in the applicant’s case were covered by the exceptions to the immunity rule already made by the English courts before 12 November 1989.

44.   In short, the Court, like the Government and the Commission, finds that the national courts’ decisions that the applicant could not invoke immunity to escape conviction and sentence for attempted rape upon his wife did not give rise to a violation of his rights under Article 7 para. 1 (art. 7-1) of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that there has been no violation of Article 7 para. 1 (art. 7-1) of the Convention.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, , on 22 November 1995.