Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement 4. Limits on Punishment 4.1 The right to benefit from a lighter penalty Article 15(1) of the International Covenant and article 9 of the American Convention outlaw the imposition of a penalty heavier than the one that was applicable at the time when the criminal offence was committed, and provide that if, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit therefrom. These provisions cannot be derogated from even in public emergencies (cf. article 4(2) of the International Covenant and article 27(2) of the American Convention). The African Charter is silent on these questions, while article 7(1) of the European Convention is limited to the proscription of recourse to penalties that are heavier than those applicable at the time the crime was committed; this provision too is non-derogable (cf. art. 15(2) of the European Convention). The question of preventive measures: The case of Welch The case of Welch was examined under article 7(1) of the European Convention and concerned an applicant who had received a long prison sentence for drug offences and who, in addition, had been the subject of a confiscation order based on a law that had entered into force after the commission of the offences concerned. Failure to pay the money would have made the applicant liable to serve a consecutive sentence of two years’ imprisonment. Recalling that the term “penalty” is an “autonomous” notion under the Convention and “looking behind appearances to the realities of the situation”, the European Court concluded that article 7(1) had been violated in this case, since “the applicant faced more far-reaching detriment as a result of the order than that to which he was exposed at the time of the commission of the offences for which he was convicted”.213 This conclusion did not mean that the Court opposed the recourse to severe confiscatory measures “in the fight against the scourge of drug trafficking”, only that it stigmatized the retroactive application thereof.214 4.2 Consistency with international legal standards Other limits on the right to impose penalties in connection with criminal convictions flow from the terms of international human rights law in general, and concern, most particularly, the prohibition on corporal punishment and the severe restrictions on, and outlawing of, recourse to capital punishment. 213 Eur. Court HR, Case of Welch v. the United Kingdom, judgment of 9 February 1995, Series A, No. 307-A, p. 14, para. 35. 214 Ibid., pp. 14-15, para. 36. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 301