‘Mental Link’ as a Condition for Punishment Under Article 7 of the European Convention on Human Rights

Abstract In G.I.E.M. S.r.l. and Others. v. Italy (2018), a Grand Chamber majority of the European Court of Human Rights firmly established that the grounds for punishment and the wording of ECHR Article 7 stipulate a ‘mental link’ for punishment to be imposed. The statement has been reaffirmed in later case law, but its meaning is unclear. Various interpretations abound in practice and in academic writing, including that the requirement makes new inroads into States’ autonomy in the field of substantive criminal law. The nexus between ECHR Article 7 and Article 49 of the Charter of Fundamental Rights means that the discussion also is relevant for EU law. The authors analyse the concept considering ECHR Article 7’s text, object and purpose, the Strasbourg Court’s overall methodology, and the complex of Italian cases from which ‘mental link’ sprang as well as case law subsequently making use of it. The authors argue that the requirement means that a person subject to criminal prosecution must have procedural opportunity to free themselves from punishment in cases of avoidable and excusable error of law. Alternative readings, including that it negates strict liability or requires mental capacity as a condition for punishment, are discarded. The ‘mental link’ case law therefore seems not to suggest that EU law, through the CFR, imposes new constraints on Member States’ freedom to define what constitutes criminal behaviour within their jurisdictions. It rather highlights one of several aspects of the principle of guilt, a cornerstone of the European legal tradition.