Condensed: If the penalty for an offence is reduced by law after a crime is committed, a person subsequently convicted for the offence has a right to benefit from the lighter penalty. This is an exception to the prohibition of retroactive criminal law.If a person is sentenced to a penalty within a sentencing range which has been lowered by new legislation, the penalty will only violate the right to benefit from a lower penalty if the penalty received is more severe than the maximum penalty allowed under the new legislation. Comprehensive: Article 15(1) provides, inter alia: ‘… If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.’[1] This provision is an exception to the prohibition on *retroactive criminal law* set out in the same article. In Fals Borda v Colombia the HRC held that the provision on lighter penalty was not applicable inter alia because ‘the new law entered into force after Justo German Bermudez and Martha Isabel Valderrama had been convicted and their appeal had been rejected’.[2] It follows arguably that the right to benefit from a lighter penalty cannot be invoked after a final conviction, with the exception of irreversible penalties such as the death penalty and corporal punishment.[3] However, some admissibility decisions of the HRC indicate that retrospectively lighter penalties may apply even after final conviction.[4] This position is also supported by the case law of the IACtHR. In Canese v Paraguay, Mr Canese was convicted and sentenced to two months imprisonment and a fine for slander. A year after the conviction and sentence was upheld by an appeal court, new legislation entered into force which reduced the maximum and minimum sentences for slander and introduced a fine as an alternative to imprisonment. The IACtHR held:[5] It has been established that, for approximately four years during which a new Penal Code was in force that contained more favorable norms than those applied in the judgments convicting Mr Canese, this more favorable normative was not taken into account by the Criminal Chamber of the Supreme Court of Justice of Paraguay, despite the appeals filed by Mr Canese, requesting, inter alia, the review of his sentence. In Gavrilin v Belarus, the question was ‘whether, in a case in which the sentence handed down under a previous law falls within the sentencing margin introduced under the later law, the provision of article 15, paragraph 1, of the Covenant requires the State party proportionally to reduce the original sentence, so that the accused may benefit from the imposition of a lighter penalty under the later law.’[6] The HRC held that the Court had not had an obligation to reduce the sentence since it was within the sentencing range of both the old and the new law.[7]
[1] A similar provision can be found in ACHR art 9 but not in other regional human rights treaties.
[2]Fals Borda v Colombia, communication 046/1979 (HRC 1982) para 13.5
[3] M Nowak UN Covenant on Civil and Political Rights – CCPR commentary (2005)366. For an opposite view see T Opsahl and A De Zayas ‘The Uncertain Scope of Article 15(1) of the International Covenant on Civil and Political Rights’ (1983) Canadian Human Rights Yearbook 237 243.
[4] See eg van der Plaat v New Zealand communication 1492/2006 (HRC 2008) para 2.3.
If the penalty for an offence is reduced by law after a crime is committed, a person subsequently convicted for the offence has a right to benefit from the lighter penalty. This is an exception to the prohibition of retroactive criminal law. If a person is sentenced to a penalty within a sentencing range which has been lowered by new legislation, the penalty will only violate the right to benefit from a lower penalty if the penalty received is more severe than the maximum penalty allowed under the new legislation.
Comprehensive:
Article 15(1) provides, inter alia: ‘… If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.’[1] This provision is an exception to the prohibition on *retroactive criminal law* set out in the same article.
In Fals Borda v Colombia the HRC held that the provision on lighter penalty was not applicable inter alia because ‘the new law entered into force after Justo German Bermudez and Martha Isabel Valderrama had been convicted and their appeal had been rejected’.[2] It follows arguably that the right to benefit from a lighter penalty cannot be invoked after a final conviction, with the exception of irreversible penalties such as the death penalty and corporal punishment.[3] However, some admissibility decisions of the HRC indicate that retrospectively lighter penalties may apply even after final conviction.[4] This position is also supported by the case law of the IACtHR. In Canese v Paraguay, Mr Canese was convicted and sentenced to two months imprisonment and a fine for slander. A year after the conviction and sentence was upheld by an appeal court, new legislation entered into force which reduced the maximum and minimum sentences for slander and introduced a fine as an alternative to imprisonment. The IACtHR held:[5]
It has been established that, for approximately four years during which a new Penal Code was in force that contained more favorable norms than those applied in the judgments convicting Mr Canese, this more favorable normative was not taken into account by the Criminal Chamber of the Supreme Court of Justice of Paraguay, despite the appeals filed by Mr Canese, requesting, inter alia, the review of his sentence.
In Gavrilin v Belarus, the question was ‘whether, in a case in which the sentence handed down under a previous law falls within the sentencing margin introduced under the later law, the provision of article 15, paragraph 1, of the Covenant requires the State party proportionally to reduce the original sentence, so that the accused may benefit from the imposition of a lighter penalty under the later law.’[6] The HRC held that the Court had not had an obligation to reduce the sentence since it was within the sentencing range of both the old and the new law.[7]
[1] A similar provision can be found in ACHR art 9 but not in other regional human rights treaties.
[2] Fals Borda v Colombia, communication 046/1979 (HRC 1982) para 13.5
[3] M Nowak UN Covenant on Civil and Political Rights – CCPR commentary (2005)366. For an opposite view see T Opsahl and A De Zayas ‘The Uncertain Scope of Article 15(1) of the International Covenant on Civil and Political Rights’ (1983) Canadian Human Rights Yearbook 237 243.
[4] See eg van der Plaat v New Zealand communication 1492/2006 (HRC 2008) para 2.3.
[5] Canese v Paraguay (IACtHR 2004) para 186.
[6] Gavrilin v Belarus communication 1342/2005 (HRC 2007) para 8.2.
[7] Gavrilin v Belarus communication 1342/2005 (HRC 2007) para 8.3