Although there is, seemingly, a thematic link between the legality principle of Article 7 § 1 and the more favourable law principle, a link which is, perhaps, strengthened by the fact that subsequent human rights instruments treat the two together, there is a vital difference between them. The former principle works at a higher level than the latter. It represents an integral part of the rule of law. Nullum crimen nulla poena sine praevia lege poenali: no one is to be convicted or punished without a pre-existing criminal law in force. Nothing is more fundamental than that. It is peremptory and inevitable. It is an essential condition of freedom. That is why Article 15 does not allow derogation from Article 7 § 1. The lex mitior principle does not form part of nor can it be considered an extension or a corollary of this rule of law requirement. It is a different kind of norm. It expresses a choice that reflects the development of a social process in the context of criminal law. It circumscribes the scope of criminal law by preserving benefits accruing to defendants as a result of substantive laws subsequent to the commission of the offence and applicable while the case was pending. It remains, in the absence of some specific provision, a matter of policy or choice in the discretionary area enjoyed by the State in criminal matters.
It is clear that when Article 7 § 1 was adopted the lex mitior principle was not included in it; and it has not been suggested that anyone had then thought that it was covered by the nullum crimen nulla poena sine lege principle, often stated in this shortened form. Article 7 § 1 of the Convention, adopted in 1950, was modelled on Article 11 § 2 of the Universal Declaration of Human Rights, with which it is almost identical, adopted by the General Assembly of the United Nations in 1948. The Travaux Preparatoires of Article 7 § 1 reveal (at page 7, item (5)) that the possibility had been canvassed of adding to it the lex mitior principle but that it was abandoned. It is significant that when the corresponding provision of the International Covenant on Civil and Political Rights was being prepared, the draft at the initial phase contained only the nullum crimen nulla poena sine lege principle, the same as Article 7 § 1 of the Convention. The proposal to include the lex mitior principle came later, whereupon the following third sentence was added to give effect to it:
"If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty the offender shall benefit thereby".
Views differed on whether it was right to do that. The Guide to the Travaux Préparatoires of the International Covenant on Civil and Political Rights, by Marc J. Bossuyt, contains an interesting account of the various considerations involved:
"Commission on Human Rights, 5th Session (1949) 6th Session (1950), 8th Session (1952)
A/2929, Chapt. VI, § 95: It was argued that the third sentence of paragraph 1 contradicted the assumption underlying the second sentence, namely that a penalty must be that which was authorized by the law in force at the time of its imposition [E/CN.4/SR.159, §§ 46 - 48 (USA); E/CN.4/SR.324, p. 4 & p. 7 & p. 15 (GB), p. 5 (USA), p. 9 (IND)]. It was also said that, notwithstanding the praiseworthiness of the goal at which the third sentence aimed, it was not appropriate to make provision for it in the covenant, since it would seem to mean that convicted persons would be enabled as of right to demand that they should benefit from any change made in the law after their conviction [E/CN.4/SR.112, p. 3 (GB), p. 5 (GCA); E/CN.4/SR.324, p. 5 (USA)]. It was asserted that the executive authority of States parties to the covenant should retain an absolute discretion in applying the benefits of subsequently enacted legislation to such persons [E/CN.4/SR. 159, §§ 61 - 62 (USA), § 65 (GB), § 72 (RCH); E/CN.4/SR.324, p. 16 (GB)]. In opposition to these views it was observed that the tendency in modern criminal law was to allow a person to enjoy the benefit of such lighter penalties as might be imposed after the commission of the offence with which he was charged [E/CN.4/SR.112, p. 4 (USA), p. 6 (RCH) p. 7 (SU); E/CN.4SR.159, § 83 (ET), § 86 (U), § 88 (F); E/CN.4/SR.199, § 151 (GB), § 153 (F), § 156 (ET); E/CN.4/SR.324, pp. 4 - 5 & p. 8 (SU), p. 5(B), p. 9 (YU), p. 11 (RCH) & (F), p. 12 (PL), p. 14 (IL)]; the laws imposing new and lighter penalties were often the concrete expression of some change in the attitude of the community towards the offence in question [E/CN.4/SR.112, p. 8 (F); E/CN.4/SR.324, p. 7 (RCH)]."
The argument that Article 7 § 1 of the Convention should be interpreted as including the most favourable law principle was examined and dismissed by the Commission in X. v. the Federal Republic of Germany, No. 7900/77, decision of 6 March 1978, Decisions and Reports No. 13, pp. 70 - 72. The applicant was found guilty of the breach of a fiscal provision and a fine was imposed on him. He appealed. Before the appeal was heard the provision on which his conviction had been based was repealed. He submitted that he should be given the benefit of that change. He alleged a violation of Article 7 and he referred, in support, to Article 15 of the United Nations Covenant on Civil and Political Rights. It may be useful to note in this connection that the American Convention on Human Rights, already adopted in 1969 though it came into force on 18 July 1978, a few months after the decision in that case, also contained a sentence embodying the more favourable law principle. In a short decision the Commission pointed out what was obvious and expressed it in this way:
"However, Article 7 of the Convention does not contain a provision similar to Article 15, paragraph 1 in fine of the United Nations Covenant which is, moreover, based on a different hypothesis because it guarantees the convicted person the right to benefit from the application of a lighter penalty imposed by a law enacted subsequent to the commission of the offence. In the present case, some of the charges against the applicant are to a certain extent no longer criminal offences. Nevertheless, at the time that the offence was committed the action of the applicant constituted a crime according to national law within the meaning of Article 7, paragraph 1, so that this complaint is (also) manifestly ill-founded..."
The decision in X. v. the Federal Republic of Germany (above) was, relatively recently, followed by the Court in Ian Le Petit v. the United Kingdom (dec.), No. 35574/97, 5 December 2000, and in Zaprianov v. Bulgaria, (dec.), No. 41171/98, 6 March 2003, where it was categorically stated that:
"Article 7 does not guarantee the right to have a subsequent and favourable change in the law applicable to an earlier offence".
The conflict of opinion in the present case should not be attributed to a difference in our interpretative approach to Article 7 § 1 of the Convention. We all profess adherence to the relevant international rules embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 and the view that we, as minority, take of Article 7 § 1 does not call in question the Court's case-law, to which the majority briefly refer, either on reversing previous decisions, where necessary, or of adapting to changing conditions and responding to some emerging consensus on new standards since, as is often emphasised, the Convention is a living instrument requiring a dynamic and evolutive approach that renders rights practical and effective, not theoretical and illusory. But no judicial interpretation, however creative, can be entirely free of constraints. Most importantly it is necessary to keep within the limits set by Convention provisions. As the Court pointed out in Johnston and Others v. Ireland (18 December 1986, § 53, Series A No. 112):
"It is true that the Convention and its Protocols must be interpreted in the light of present-day conditions (see, amongst several authorities the above-mentioned Marckx judgment, Series A No. 31, p. 26, para. 58). However, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right which was not included therein at the outset. This is particularly so here, where the omission was deliberate."
This is a matter on which the Court should be particularly sensitive. And yet, although the present case does not require it, the majority has gone on to examine the case under Article 7 § 1 and, in order to apply it, has had it re-written in order to accord with what they consider it ought to have been. This, with respect, oversteps the limits.