Case of European Court of Human Rights, December 15, 2009 (case Gurguchiani v. Spain)

Resolution Date:December 15, 2009

Violation of Art. 7 Non-pecuniary damage - award


Information Note on the Court’s case-law No. 125

December 2009

Gurguchiani v. Spain - 16012/06

Judgment 15.12.2009 [Section III]

Article 7

Article 7-1

Heavier penalty

Replacement of a prison sentence on an alien with deportation and exclusion orders: violation

Facts – In 2002 the applicant was sentenced to eighteen months’ imprisonment for an attempted house burglary and was released on licence. The conviction was upheld on appeal. An amparo appeal lodged by the applicant was dismissed by the Constitutional Court in 2004. In the meantime, in 2003, the police administration requested the judge responsible for the enforcement of the judgment against the applicant to issue directions for the applicant’s removal from the country in accordance with the applicable enforcement procedure. The request was accompanied by a decision given in 2002 by a regional arm of central government ordering the administrative removal of the applicant, a Georgian citizen living illegally in Spain, under an Institutional Law of 2000 on the rights and freedoms of foreign nationals in Spain. However, the criminal court decided not to issue removal directions as it found that the enforcement of the sentence imposed by the judgment of 2002 would be more appropriate. An appeal by the public prosecutor was dismissed by the criminal court but upheld on appeal. The applicant’s deportation from Spain, together with a ten-year ban on re-entry, was ordered in 2004. An amparo appeal by the applicant was unsuccessful.

Law – Article 7: The applicant’s deportation and ten-year exclusion from Spain had been authorised by a decision of 2004 in accordance with a new version of an Article in the Criminal Code that had been in force since 2003. According to the new wording, where an illegal immigrant in Spain was given a prison sentence of up to six years, there was an obligation to replace that sentence by deportation, save in exceptional cases. Accordingly, through this legislative amendment, deportation had become the rule and unless there were exceptional circumstances the court’s assessment no longer counted.

The Court therefore had to ascertain what the applicant’s prison “sentence” in 2002 had entailed under domestic law at the material time. It had to determine, in particular, whether the legislation, together with its interpretation in case-law, had fulfilled the conditions of accessibility and foreseeability. In doing so it had to take into account the domestic law as a whole...

To continue reading