Cje. Lecture 6 & 7 Principles of Criminal Law and Criminal Liability. Criminal Law I

Transcription

1 Criminal Law I Cje Lecture 6 & 7 and Criminal Liability Karolina Kremens, LL.M., Ph.D. Wojciech Jasiński, Ph.D. Department of Criminal Procedure Faculty of Law, Administration and Economics University of Wrocław

2 Principle 1. A basic truth, law, or assumption 2. A basic or essential quality or element determining intrinsic nature or characteristic behavior 3. Fundamental norms, rules, or values that represent what is desirable and positive for a person, group, organization, or community, and help it in determining the rightfulness or wrongfulness of its actions. Principles are more basic than policy and objectives, and are meant to govern both.

3 Principles governing the range of criminal law Principle of minimum criminalisation (the minimalist approach)

4 Principles governing the range of criminal law Principle of minimum criminalisation (the minimalist approach) respect for human rights (general priority of rights and freedoms) the right not to be punished (decision to criminalize and to impose punishment needs special justification, exceeding what is necessary in other cases, e.g. taxation)

5 Principles governing the range of criminal law Principle of minimum criminalisation (the minimalist approach) criminalisation as ultima ratio (last resort) (criminal law should not be invoked unless other techniques are appropriate) no counter-productive criminalisation (social costs should be analysed)

6 Principles governing the range of criminal law Principle of liability for acts not ommissions Criminalisation of omission needs a special justification (positive duties) German Criminal Code Section 13 Omissions (1) Whosoever fails to avert a result which is an element of a criminal provision shall only be liable under this law if he is responsible under law to ensure that the result does not occur, and if the omission is equivalent to the realisation of the statutory elements of the offence through a positive act. (2) The sentence may be mitigated pursuant to section 49(1).

7 Principle of liability for acts not ommissions Criminalisation of ommission needs a special justification (positive duties) Polish Criminal Code Art. 2. Criminal consequences by ommission Only a person with a specific legal duty to prevent criminal consequences committed by omission bears criminal liability for an offence with such consequences.

8 6) Principle of proportionality Principles of criminal liability 1) Personal and individual liability 2) Mens rea principle (the principle of guilt) 3) Nullum crimen sine lege (certa, scripta) principle of legality 4) Nulla poena sine lege 5) Non-retroactivity of criminal law (lex retro non agit)

9 Principles of criminal liability Personal and individual liability - non-transferable liability - prohibition of collective liability

10 Personal and individual liability ECHR case-law In the case of A.P., M.P. and T.P. v. Switzerland, 29 August 1997, a number of heirs had been punished for a criminal offence committed by the deceased. The Court considered that the criminal sanction imposed on the heirs for tax fraud attributed to the deceased was incompatible with the fundamental rule of criminal law that criminal liability does not survive the person who has committed the criminal act (ibid., 48). Swiss law explicitly acknowledged this principle, and the Court affirmed that this rule was also required by the presumption of innocence enshrined in Article 6 2 of the Convention. Inheritance of the guilt of the dead is not compatible with the standards of criminal justice in a society governed by the rule of law. A system which punished persons for an offence committed by another would be inconceivable.

11 Personal and individual liability ECHR case-law That principle was reaffirmed in the case of Lagardère (Lagardère v. France, no /07, 12 April 2012, 77), in which the Court reiterated that the rule that criminal liability does not survive the person who has committed the criminal act is not only required by the presumption of innocence enshrined in Article 6 2 of the Convention, but also by the principle that inheritance of the guilt of the dead is incompatible with the standards of criminal justice in a society governed by the rule of law The Court considers that the rule reiterated by it in the preceding paragraph is also valid from the angle of Article 7 of the Convention, which requires that no one can be held guilty of a criminal offence committed by another. While it is true that anyone must be able at any time to ascertain what is permitted and what is prohibited via clear and detailed laws, a system which punished persons for an offence committed by another would be inconceivable.

12 no mens rea, no causation, no defences Principles of criminal liability Mens rea principle (principle of guilt) Nulla poena sine culpa Strict liability offences exception Mens rea do not have to be proven for one or more aspects of actus reus Absolute liability offences - exception

13 Nullum crimen sine lege Sources: Universal Declaration of Human Rights (1947) Article 11. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

14 Nullum crimen sine lege Sources: International Covenant on Civil and Political Rights (1966) Article No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

15 Nullum crimen sine lege Sources: International Covenant on Civil and Political Rights (1966) Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

16 Nullum crimen sine lege Sources: European Convention on Human Rights (1950) Article 7 No punishment without law (non-derogable right) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. ( ) This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

17 Nulla poena sine lege Sources: Universal Declaration of Human Rights (1947) Article 11. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

18 Nulla poena sine lege Sources: International Covenant on Civil and Political Rights (1966) Article 15 1.( ). Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. 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.

19 Nulla poena sine lege Sources: International Covenant on Civil and Political Rights (1966) Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

20 Nulla poena sine lege Sources: European Convention on Human Rights (1950) Article 7 No punishment without law No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. A non-derogable right

21 Nulla poena sine lege Sources: EU Charter of Fundamental Rights Article 49 Principles of legality and proportionality of criminal offences and penalties 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable.

22 Nullum crimen/nulla poena sine lege European Court of Human Rights General principles CASE OF VYERENTSOV v. UKRAINE, 11/04/ The Court reiterates that the guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see S.W. v. the United Kingdom, 22 November 1995, 34, Series A no. 335-B, and C.R. v. the United Kingdom, 22 November 1995, 33, Series A no. 335-C).

23 Nullum crimen/nulla poena sine lege European Court of Human Rights General principles 62. Accordingly, it embodies, in general terms, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) (see Kokkinakis v. Greece, 25 May 1993, 52, Series A no. 260-A). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused s detriment, for instance by analogy (see Coëme and Others v. Belgium, nos /96, 32547/96, 32548/96, 33209/96 and 33210/96, 145, ECHR VII; Achour v. France [GC], no /01, 41, ECHR 2006-IV; and Kononov v. Latvia [GC], no /04, 185, ECHR 2010).

24 Nullum crimen/nulla poena sine lege European Court of Human Rights General principles 63. When speaking of law Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statute law as well as case-law (see, mutatis mutandis, The Sunday Times (no. 1), cited above, 47; Kruslin v. France, 24 April 1990, 29, Series A no. 176-A; and Casado Coca v. Spain, 24 February 1994, 43, Series A no. 285-A). In this connection, the Court has always understood the term law in its substantive sense, not its formal one. It has thus included both enactments of lower rank than statutes and unwritten law (see, in particular, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, 93, Series A no. 12). In sum, the law is the provision in force as the competent courts have interpreted it.

25 Nullum crimen/nulla poena sine lege European Court of Human Rights General principles 64. Furthermore, the term law implies qualitative requirements, including those of accessibility and foreseeability ( ). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty that the offence in question carries (see Achour [GC], cited above, 41). An individual must know from the wording of the relevant provision and, if need be, with the assistance of the courts interpretation thereof, what acts and omissions will render him criminally responsible and what penalty will be imposed for the act and/or omission in question (see, among other authorities, Cantoni, cited above, 29). Furthermore, a law may still satisfy the requirement of foreseeability where the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, Cantoni, cited above, 35, and Achour [GC], cited above, 54).

26 Nullum crimen/nulla poena sine lege European Court of Human Rights General principles 65. The Court has acknowledged in its case-law that, however clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, mutatis mutandis, The Sunday Times (no. 1), cited above, 49, and Kokkinakis, cited above, 40). The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain (see, mutatis mutandis, Cantoni, cited above).

27 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF KOKKINAKIS v. GREECE 25/05/1993 Applicant accused of proselytism - VAGUENESS section 2 of Law no. 1672/1939 "1. Anyone engaging in proselytism shall be liable to imprisonment and a fine of between 1,000 and 50,000 drachmas; he shall, moreover, be subject to police supervision for a period of between six months and one year to be fixed by the court when convicting the offender. The term of imprisonment may not be commuted to a fine. 2. By proselytism is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion (eterodoxos), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvety. 3. The commission of such an offence in a school or other educational establishment or a philanthropic institution shall constitute a particularly aggravating circumstance."

28 The Court has already noted that the wording of many statutes is not absolutely precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague ( ). Criminal-law provisions on proselytism fall within this category. The interpretation and application of such enactments depend on practice. In this instance there existed a body of settled national case-law ( ). This case-law, which had been published and was accessible, supplemented the letter of section 4 and was such as to enable Mr Kokkinakis to regulate his conduct in the matter. As to the constitutionality of section 4 of Law no. 1363/1938, the Court reiterates that it is, in the first instance, for the national authorities, and in particular the courts, to interpret and apply domestic law ( ). And the Greek courts that have had to deal with the issue have ruled that there is no incompatibility. Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF KOKKINAKIS v. GREECE 25/05/1993

29 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF WINGROVE v. THE UNITED KINGDOM 25/11/1996 Case concerning blasphemy - VAGUENESS Case of Whitehouse v. Gay News Ltd and Lemon [1979], Lord Scarman held that the modern law of blasphemy was correctly formulated in Article 214 of Stephen s Digest of the Criminal Law, 9th edition (1950). This states as follows: "Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established. It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not to the substance of the doctrines themselves."

30 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF WINGROVE v. THE UNITED KINGDOM 25/11/1996 Case concerning blasphemy The House of Lords in that case also decided that the mental element in the offence (mens rea) did not depend upon the accused having an intent to blaspheme. It was sufficient for the prosecution to prove that the publication had been intentional and that the matter published was blasphemous.

31 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF WINGROVE v. THE UNITED KINGDOM 25/11/1996 Case concerning blasphemy 41. It is observed that, in refusing a certificate for distribution of the applicant s video on the basis that it infringed a provision of the criminal law of blasphemy, the British Board of Film Classification acted within its powers under section 4 (1) of the 1984 Act ( ). 42. The Court recognises that the offence of blasphemy cannot by its very nature lend itself to precise legal definition. National authorities must therefore be afforded a degree of flexibility in assessing whether the facts of a particular case fall within the accepted definition of the offence ( ).

32 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF WINGROVE v. THE UNITED KINGDOM 25/11/1996 Case concerning blasphemy 43. There appears to be no general uncertainty or disagreement between those appearing before the Court as to the definition in English law of the offence of blasphemy, as formulated by the House of Lords in the case of Whitehouse v. Gay News Ltd and Lemon (see paragraph 27 above). Having seen for itself the content of the video work, the Court is satisfied that the applicant could reasonably have foreseen with appropriate legal advice that the film, particularly those scenes involving the crucified figure of Christ, could fall within the scope of the offence of blasphemy. The above conclusion is borne out by the applicant s decision not to initiate proceedings for judicial review on the basis of counsel s advice that the Panel s formulation of the law of blasphemy represented an accurate statement of the law ( ).

33 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF JORGIC v. GERMANY 12/07/2007 Case concerning genocide (ethnic cleansing) - FORESEEABILITY 7. In 1969 the applicant, a national of Bosnia and Herzegovina of Serb origin, entered Germany, where he legally resided until the beginning of He then returned to Kostajnica, which forms part of the city of Doboj in Bosnia, where he was born. 8. On 16 December 1995 the applicant was arrested when entering Germany and placed in pre-trial detention on the ground that he was strongly suspected of having committed acts of genocide.

34 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF JORGIC v. GERMANY 12/07/2007 Case concerning genocide (ethnic cleansing) Article 220a Genocide 1. Whoever, acting with the intent to destroy, in whole or in part, a national, racial, religious or ethnical group as such, (1) kills members of the group, (2) causes serious bodily or mental harm to members of the group, (3) places the group in living conditions capable of bringing about their physical destruction in whole or in part, (4) imposes measures which are intended to prevent births within the group, (5) forcibly transfers children of the group into another group, shall be punished with life imprisonment.

35 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF JORGIC v. GERMANY 12/07/2007 Case concerning genocide (ethnic cleansing) 36. The applicant is the first person to be convicted of genocide by German courts under Article 220a since the incorporation of that Article into the Criminal Code. At the time the applicant committed his acts in 1992, a majority of scholars took the view that genocidal intent to destroy a group under Article 220a of the Criminal Code had to be aimed at the physical-biological destruction of the protected group ( ). However, a considerable number of scholars were of the opinion that the notion of destruction of a group as such, in its literal meaning, was wider than a physical-biological extermination and also encompassed the destruction of a group as a social unit ( ).

36 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF JORGIC v. GERMANY 12/07/2007 Case concerning genocide (ethnic cleansing) 105. The Court notes that the domestic courts construed the intent to destroy a group as such systematically in the context of Article 220a 1 of the Criminal Code as a whole, having regard notably to alternatives no. 4 (imposition of measures which are intended to prevent births within the group) and no. 5 (forcible transfer of children of the group into another group) of that provision, which did not necessitate a physical destruction of living members of the group in question. The Court finds that the domestic courts interpretation of intent to destroy a group as not necessitating a physical destruction of the group, which has also been adopted by a number of scholars (see paragraphs 36 and 47 above), is therefore covered by the wording, read in its context, of the crime of genocide in the Criminal Code and does not appear unreasonable.

37 106. Furthermore, the Court, like the national courts, considers it necessary, in order to determine the essence of the offence of genocide, to take into consideration also the codification of the prohibition of genocide in Article II of the Genocide Convention, for the observance of which Article 220a had been incorporated into the Criminal Code and in the light of which the said Article was to be construed. As the wording of Article 220a of the Criminal Code corresponds to that of Article II of the Genocide Convention in so far as the definition of genocide is concerned, the above reasoning with respect to the scope of the prohibition of genocide equally applies. Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF JORGIC v. GERMANY 12/07/2007 Case concerning genocide (ethnic cleansing)

38 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF JORGIC v. GERMANY 12/07/2007 Case concerning genocide (ethnic cleansing) 107. Moreover, the German courts interpretation has not only been supported by a number of scholars at the relevant time of the commission of the crime (see paragraph 36 above), the United Nations General Assembly also agreed with the wider interpretation adopted by the German courts in the present case in its Resolution 47/121 of 18 December 1992, (see paragraph 41 above).

39 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF JORGIC v. GERMANY 12/07/2007 Case concerning genocide (ethnic cleansing) 108. Consequently, the applicant s acts, which he committed in the course of the ethnic cleansing in the Doboj region with intent to destroy the group of Muslims as a social unit, could reasonably be regarded as falling within the ambit of the offence of genocide.

40 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF JORGIC v. GERMANY 12/07/2007 Case concerning genocide (ethnic cleansing) 109. In deciding, secondly, whether the domestic courts interpretation of the crime of genocide could reasonably be foreseen by the applicant at the material time, the Court notes that the applicant is the first person to be convicted of genocide by German courts under Article 220a since the incorporation of that Article into the Criminal Code in In these circumstances the Court finds that, as opposed to cases concerning a reversal of pre-existing case-law, an interpretation of the scope of the offence which was as in the present case consistent with the essence of that offence must, as a rule, be considered as foreseeable. Despite this, the Court does not exclude that, exceptionally, an applicant could rely on a particular interpretation of the provision being taken by the domestic courts in the special circumstances of the case.

41 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF JORGIC v. GERMANY 12/07/2007 Case concerning genocide (ethnic cleansing) 111. The Court notes in this connection that at the material time the scope of Article II of the Genocide Convention, on which Article 220a of the Criminal Code is based, was contested amongst scholars as regards the definition of intent to destroy a group. Whereas the majority of legal writers took the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide, a considerable number of scholars suggested that these acts did indeed amount to genocide (see paragraph 47 above).

42 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF JORGIC v. GERMANY 12/07/2007 Case concerning genocide (ethnic cleansing) 113. ( ) the Court concludes that, while many authorities had favoured a narrow interpretation of the crime of genocide, there had already been several authorities at the material time which had construed the offence of genocide in the same wider way as the German courts. In these circumstances, the Court finds that the applicant, if need be with the assistance of a lawyer, could reasonably have foreseen that he risked being charged with and convicted of genocide for the acts he committed in In this context the Court also has regard to the fact that the applicant was found guilty of acts of a considerable severity and duration: the killing of several people and the detention and ill-treatment of a large number of people over a period of several months as the leader of a paramilitary group in pursuit of the policy of ethnic cleansing.

43 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF JORGIC v. GERMANY 12/07/2007 Case concerning genocide (ethnic cleansing) 114. Therefore, the national courts interpretation of the crime of genocide could reasonably be regarded as consistent with the essence of that offence and could reasonably be foreseen by the applicant at the material time. These requirements being met, it was for the German courts to decide which interpretation of the crime of genocide under domestic law they wished to adopt. Accordingly, the applicant s conviction for genocide was not in breach of Article 7 1 of the Convention.

44 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF STRELETZ, KESSLER AND KRENZ v. GERMANY 22/03/2001 Case concern shooting to people escaping from East Germany WHEATHER AN ACT IS AN OFFENCE Three of the applicants, all German nationals, were senior officials of the German Democratic Republic (GDR): Fritz Streletz, who was born in 1926, was a Deputy Minister of Defence; Heinz Kessler, who was born in 1920, was a Minister of Defence; Egon Krenz, who was born in 1937, was President of the Council of State. All three applicants were convicted by the courts of the Federal Republic of Germany (FRG), after German unification on 3 October 1990, under the relevant provisions of the GDR s Criminal Code, and subsequently those of the FRG s Criminal Code, which were more lenient than those of the GDR.

45 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF STRELETZ, KESSLER AND KRENZ v. GERMANY 22/03/2001 Case concern shooting to people escaping from East Germany Mr Streletz, Mr Kessler and Mr Krenz were sentenced to terms of imprisonment of five-and-a-half years, seven-and-a-half years and six-and-a-half years respectively for intentional homicide as indirect principals (Totschlag in mittelbarer Täterschaft), on the ground that through their participation in decisions of the GDR s highest authorities, such as the National Defence Council or the Politbüro, concerning the regime for the policing of the GDR s border (Grenzregime), they were responsible for the deaths of a number of people who had tried to flee the GDR across the intra-german border between 1971 and 1989.

46 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF STRELETZ, KESSLER AND KRENZ v. GERMANY 22/03/2001 Case concern shooting to people escaping from East Germany The Court observed that its task was to consider, from the standpoint of Article 7 1 of the Convention, whether, at the time when they were committed, the applicants acts constituted offences defined with sufficient accessibility and foreseeability by the law of the GDR or international law. The aswer was twice yes. Their actions, although legal according to statutory rules were a violation of the right to life enshrined in national constitution and international law and punishable by criminal legal-regulations in East Germany. Conviction was neither arbitrary nor unforseeable.

47 Facts: The two applicants, employees of a privately owned commercial bank, were convicted under the Criminal Code of accepting bribes. The applicants and the prosecution appealed. The applicants claimed, inter alia, that the offences had not been offences under domestic law at the material time. Accepting bribes was an offence at the time only if committed by a public servant or a person working for a Stateowned company, whereas they had been employees of a private bank. The Court of Appeal allowed the prosecution s appeal and upheld the applicants conviction. Nullum crimen sine lege European Court of Human Rights Examples of cases Dragotoniu and Militaru-Pidhorni v. Romania /01 Judgment ANALOGY

48 Facts: While acknowledging that accepting bribes was an offence under the Criminal Code only if committed by a public servant or a person working for a State-owned company, it held that in view of the Criminal Code and considering the purpose of the law, accepting bribes was also an offence when committed by employees of private firms, even prior to the enactment of the new law. The purpose of the law was to punish any person with professional obligations towards a legal entity who disregarded those obligations in their dealings with others. The Supreme Court upheld the Court of Appeal s decision. Nullum crimen sine lege European Court of Human Rights Examples of cases Dragotoniu and Militaru-Pidhorni v. Romania /01 Judgment

49 Nullum crimen sine lege European Court of Human Rights Examples of cases Dragotoniu and Militaru-Pidhorni v. Romania /01 Judgment Law: The Supreme Court could not be accused of retroactive application of the criminal law as it had expressly stated that it had applied the law in force at the material time. However, it had never previously been explicitly established that the accepting of bribes by employees of privately owned commercial firms was a criminal offence. Even though the applicants were in a profession where they could seek legal advice, it would have been difficult, if not impossible, for them to foresee the Supreme Court s departure from precedent and thus to know, at the time when they committed them, that their acts might give rise to criminal sanctions. The Court of Appeal had deliberately applied criminal law in an extensive manner.

50 Nullum crimen sine lege European Court of Human Rights Examples of cases CASE OF C.R. v. THE UNITED KINGDOM 22/11/1995, appl /92 - FORESEEABILITY Conviction of man for attempted rape of wife: no violation Article 7 should be construed and applied, as follows from its object and purpose, so as to provide effective safeguards against arbitrary prosecution, conviction and punishment progressive development of criminal law through judicial interpretation, elucidation, and adaptation to changing circumstances not contrary to Article 7, provided consistent with essence of offence and reasonably foreseeable.

51 CASE OF C.R. v. THE UNITED KINGDOM 22/11/1995, appl /92 Decisions of Court of Appeal and House of Lords upholding conviction of applicant's attempted rape of wife continued line of case-law development dismantling marital immunity for rape, consistent with essence of offence as defined by section 1 (1) (a) Sexual Offences (Amendment) Act 1976 law had reached stage where judicial recognition of absence of immunity reasonably foreseeable. Essentially debasing character of rape so manifest that conviction for attempted rape of wife not at variance with object and purpose of Article 7 abandonment of marital immunity conforms with civilised concept of marriage and fundamental objectives of Convention, respect for human dignity and freedom. Conclusion: no violation (unanimously). Nullum crimen sine lege European Court of Human Rights Examples of cases

52 Nulla poena sine lege European Court of Human Rights Examples of cases Camilleri v. Malta /10, Judgment Facts In 2003 the applicant was charged with possession of illegal drugs not intended for his exclusive use. The relevant domestic law provided two different ranges of sentence for that offence, namely four years to life imprisonment on conviction by the Criminal Court, or six months to ten years on conviction by the Court of Magistrates. Under domestic law, it was the public prosecutor who decided in which court the accused would be tried. The applicant was tried in the Criminal Court and sentenced to fifteen years imprisonment and a EUR 35,000 fine. The judgment was upheld on appeal.

53 Nulla poena sine lege European Court of Human Rights Examples of cases Law Article 7: While it was clear that the sentence imposed on the applicant had been established by law and had not exceeded the statutory limits, the law did not make it possible for him to know, before the decision of the public prosecutor determining the court where he was to be tried, which of the two ranges of sentence would apply to him. The domestic case-law seemed to indicate that such decisions were at times unpredictable. The applicant would not have been able to know the punishment applicable to him even if he had obtained legal advice on the matter, as the decision was solely dependent on the prosecutor s discretion to determine the trial court. The criteria to be applied by the prosecutor when taking his decision were not specified in any legislative text and had not been clarified by the courts. The law did not provide any guidance on what would amount to a more serious offence or a less serious one. The lack of such guidelines had also been noted by the Constitutional Court.

54 Thus, the law did not determine with any degree of precision the circumstances in which a particular range of sentence applied. The prosecutor had in effect an unfettered discretion to decide which minimum penalty would be applicable with respect to the same offence. His decision was inevitably subjective and left room for arbitrariness, particularly given the lack of procedural safeguards. The domestic courts were bound by that decision and could not impose a sentence below the minimum established by law despite any concerns they might have as to the use of the prosecutor s discretion. The relevant legal provision had therefore failed to satisfy the foreseeability requirement and provide effective safeguards against arbitrary punishment. Nulla poena sine lege European Court of Human Rights Examples of cases

55 Non-retroactivity of criminal law (lex retro non agit) Sources: Universal Declaration of Human Rights (1947) Article 11. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

56 Non-retroactivity of criminal law (lex retro non agit) Sources: International Covenant on Civil and Politic Rights European Convention on Human Rights EU Charter of Fundamental Rights

57 Non-retroactivity of criminal law (lex retro non agit) 1) Prohibition of retroactive criminalisation 2) Prohibition of imposing heavier penalty than provided by law 3) Obligation to apply lex mitior agit principle

58 Prohibition of retroactive criminalisation Veeber v. Estonia (no. 2) (application no /99), On 7 October 1996 applicant was charged, as chairman of the board of AS Giga and AS Tartu Jõujaam and as the owner of the former company, under Article of the Criminal Code, with: forgery and fabrication of documents on five occasions from to show commercial interaction with a fictitious company; the use at the end of 1994 and in 1995 of fictitious documents in relation to salary payments; and, on 12 May 1995, concluding a sham contract to circumvent tax laws. On 13 October 1997 the applicant was found guilty as charged and given a suspended prison sentence of three years and six months. In convicting the applicant of tax evasion under Article of the Criminal Code, the court observed that the criminal acts started in the third quarter of 1993 and that the last act began on 12 May It considered that the acts constituted an ongoing crime. The applicant was ordered to pay the city tax authorities 853,550 Estonian kroons.

59 Prohibition of retroactive criminalisation Veeber v. Estonia (no. 2) (application no /99), The applicant appealed, arguing that Article had been applied retroactively, as it only entered into force on 13 January Prior to that date, conviction under Article could follow only if the person concerned had been subjected to an administrative sanction for the same action or had a previous criminal conviction for the same offence. His appeals were rejected. The European Court of Human Rights observed that a considerable number of the acts of which the applicant was convicted fell exclusively within the period prior to January 1995 and that the sentence imposed took into account the acts committed both before and after January Finding that the Estonian courts applied retrospectively the 1995 law to behaviour which previously did not constitute a criminal offence, the European Court of Human Rights held, unanimously, that there had been a violation of Article 7 1

60 Prohibition of imposing heavier penalty than provided by law Maktouf and Damjanović v. Bosnia and Herzegovina [GC] /08 and 34179/08, Judgment [GC] Facts Both applicants were convicted by the Court of Bosnia and Herzegovina ( the State Court ) of war crimes committed against civilians during the war. War crimes chambers were set up within the State Court in early 2005 as part of the International Criminal Tribunal for the former Yugoslavia s completion strategy. The State Court, which consists of international and national judges, can decide to take over war crime cases because of their sensitivity or complexity, and can transfer less sensitive and complex cases to the competent courts of the two entities of Bosnia and Herzegovina (the Entity courts )

61 Prohibition of imposing heavier penalty than provided by law Maktouf and Damjanović v. Bosnia and Herzegovina [GC] /08 and 34179/08, Judgment [GC] The first applicant (Mr Maktouf) was convicted by the State Court in July 2005 of aiding and abetting the taking of two civilian hostages as a war crime and sentenced to five years imprisonment under the 2003 Criminal Code of Bosnia and Herzegovina ( the 2003 Criminal Code ). In April 2006, an appeals chamber of the court confirmed his conviction and the sentence after a fresh hearing with the participation of two international judges. The second applicant (Mr Damjanović), who had taken a prominent part in the beating of captured Bosniacs in Sarajevo in 1992, was convicted in June 2007 of torture as a war crime and sentenced to eleven years imprisonment under the 2003 Criminal Code.

62 Prohibition of imposing heavier penalty than provided by law Maktouf and Damjanović v. Bosnia and Herzegovina [GC] /08 and 34179/08, Judgment [GC] In their applications to the European Court, both men complained, inter alia, that the State Court had retroactively applied to them a more stringent criminal law, the 2003 Criminal Code, than that which had been applicable at the time of their commission of the offences, namely the 1976 Criminal Code of the Socialist Federal Republic of Yugoslavia ( the 1976 Criminal Code ) and that they had received heavier sentences as a result.

63 Law Article 7: What was at issue was not the lawfulness of their convictions but the different sentencing frameworks applicable to war crimes under the two Codes. The State Court had sentenced the first applicant to five years imprisonment; the lowest possible sentence for aiding and abetting war crimes under the 2003 Code, whereas under the 1976 Code his sentence could have been reduced to one year. Likewise, the second applicant had been sentenced to eleven years imprisonment, slightly above the ten-year minimum applicable in his case under the 2003 Code. However, under the 1976 Code, it would have been possible to impose a sentence of only five years. Prohibition of imposing heavier penalty than provided by law Maktouf and Damjanović v. Bosnia and Herzegovina [GC] /08 and 34179/08, Judgment [GC]

64 Prohibition of imposing heavier penalty than provided by law Maktouf and Damjanović v. Bosnia and Herzegovina [GC] /08 and 34179/08, Judgment [GC] As the applicants had received sentences at the lower end of the sentencing range, it was of particular relevance that the 1976 Code was more lenient in respect of the minimum sentence. In this context, the fact that the 2003 Code may have been more lenient as regards the maximum sentence was immaterial as the crimes of which the applicants had been convicted clearly did not belong to the category to which the maximum sentence was applicable.

65 Prohibition of imposing heavier penalty than provided by law Maktouf and Damjanović v. Bosnia and Herzegovina [GC] /08 and 34179/08, Judgment [GC] Further, while the Court accepted that the applicants sentences were within the latitude of both the 1976 Criminal Code and the 2003 Criminal Code, so that it could not be said with any certainty that either applicant would have received lower sentences had the 1976 Code been applied, the crucial point was that the applicants could have received lower sentences if it had been. Accordingly, since there was a real possibility that the retroactive application of the 2003 Code had operated to the applicants disadvantage as regards sentencing, it could not be said that they had been afforded effective safeguards against the imposition of a heavier penalty.

66 Prohibition of imposing heavier penalty than provided by law Maktouf and Damjanović v. Bosnia and Herzegovina [GC] /08 and 34179/08, Judgment [GC] Nor was the Court able to agree with the Government s argument that if an act was criminal under the general principles of law recognised by civilised nations (Article 7 2 of the Convention) at the time it was committed then the rule of non-retroactivity of crimes and punishments did not apply. That argument was inconsistent with the intention of the drafters of the Convention that Article 7 1 contained the general rule of non-retroactivity and that Article 7 2 was only a contextual clarification, included to ensure that there was no doubt about the validity of prosecutions after the Second World War in respect of crimes committed during that war. It was thus clear that the drafters of the Convention had not intended to allow for any general exception to the rule of non-retroactivity.

67 Prohibition of imposing heavier penalty than provided by law Maktouf and Damjanović v. Bosnia and Herzegovina [GC] /08 and 34179/08, Judgment [GC] With regard to the Government s argument that a duty under international humanitarian law to punish war crimes adequately required that the rule of non-retroactivity be set aside in the applicants case, the Court noted that that rule also appeared in the Geneva Conventions and their Additional Protocols. Moreover, as the applicants sentences were within the compass of both the 1976 and 2003 Criminal Codes, the Government s argument that the applicants could not have been adequately punished under the former Code was clearly unfounded. Accordingly, there had been a violation of Article 7. However, the Court emphasised that that conclusion did not indicate that lower sentences ought to have been imposed, but simply that the

68 Prohibition of imposing heavier penalty than provided by law M. v. Germany /04 Judgment Facts In 1986 the applicant was convicted of attempted murder and robbery and sentenced to five years imprisonment. In addition, the trial court ordered his placement in preventive detention, a measure considered necessary in view of the applicant s strong propensity to commit offences which seriously damaged his victims physical integrity. He had already been convicted and imprisoned on numerous occasions, notably for attempted murder, theft, assault and blackmail.

69 Prohibition of imposing heavier penalty than provided by law The court of appeal confirmed that the applicant s dangerousness necessitated his continued preventive detention and added that such detention was not contrary to the prohibition of retrospective provisions in the criminal law. The applicant lodged an unsuccessful constitutional complaint. The Federal Constitutional Court held, in particular, that the abolition of the maximum period of detention, and the application of this measure to criminals who had been placed in preventive detention prior to the entry into force of the new legislation and had not yet finished serving their sentences, were compatible with the Constitution. It also considered that the retrospective application of the amended provision of the Criminal Code was not disproportionate.

70 Prohibition of imposing heavier penalty than provided by law Facts The applicant finished serving his prison sentence in August 1991 and has been in preventive detention ever since. In April 2001 a court refused to release him on licence and ordered that he be kept in preventive detention beyond 8 September 2001, the date the maximum ten-year period previously authorised for such detention was due to expire. In making that order the court applied the Criminal Code as amended by a law which had entered into force in January It stated that the amended provision was applicable also to prisoners who had been placed in preventive detention prior to the law s entry into force and added that, on account of the gravity of the applicant s criminal record and the likelihood of his committing further offences, his continued placement in preventive detention was not disproportionate.

71 Prohibition of imposing heavier penalty than provided by law The Court had to determine whether the applicant s preventive detention constituted a penalty within the meaning of this provision. Under German law, such a measure was not considered a penalty to which the absolute ban on retrospective punishment applied, but rather a measure of correction and prevention aimed at protecting the public from a dangerous offender. However, just like a prison sentence, preventive detention entailed a deprivation of liberty. Persons subject to preventive detention were detained in ordinary prisons, albeit in separate wings. Minor alterations to the detention regime compared to that of an ordinary prisoner serving his sentence, including privileges such as detainees right to wear their own clothes, could not mask the fact that there was no substantial difference between the execution of a prison sentence and that of a preventivedetention order.

72 Prohibition of imposing heavier penalty than provided by law There was currently no sufficient psychological support specifically aimed at prisoners in preventive detention to secure the prevention of offences by the persons concerned. The Court could not therefore subscribe to the Government s argument that preventive detention served a purely preventive, and no punitive, purpose. Pursuant to the Criminal Code, preventive-detention orders could be made only against persons who had repeatedly been found guilty of criminal offences of a certain gravity. Given its unlimited duration, preventive detention might well be understood as constituting an additional punishment and entailed a clear deterrent element. Courts belonging to the criminal-justice system were involved in making and implementing orders for preventive detention. The suspension of preventive detention on probation was subject to a court s finding that there was no danger that the detainee would commit further serious offences, a condition which could be difficult to fulfil.