Nulla poena sine lege

Nulla poena sine lege (Latin for "no penalty without a law") is a legal principle, requiring that one cannot be punished for doing something that is not prohibited by law. This principle is accepted and codified in modern democratic states as a basic requirement of the rule of law.[1]

Requirements

In modern European criminal law, e.g. of the Constitutional Court of Germany, the principle of nulla poena sine lege has been found to consist of four separate requirements:[2]

Nulla poena sine praevia lege poenali  
There is to be no penalty without previous law. This prohibits ex post facto laws, and the retroactive application of criminal law. It is a basic maxim in continental European legal thinking. It was written by Paul Johann Anselm Ritter von Feuerbach as part of the Bavarian Criminal Code in 1813.
Nulla poena sine lege scripta
There is to be no penalty without written law. That is, criminal prohibitions must be set out in written legal instruments of general application, normally statutes, adopted in the form required by constitutional law. This excludes customary law as a basis of criminal punishment.
Nulla poena sine lege certa
There is to be no penalty without definite law. This provides that a penal statute must define the punishable conduct and the penalty with sufficient definiteness to allow citizens to foresee when a specific action would be punishable, and to conduct themselves accordingly. The rule expresses the general principle of legal certainty in matters of criminal law. It is recognised or codified in many national jurisdictions, as well as e.g. by the European Court of Justice as a "general principle of Union law".[3]
Nulla poena sine lege stricta
There is to be no penalty without strict law. This prohibits the application by analogy of statutory provisions in criminal law.

In common law

One complexity is the lawmaking power of judges under common law. Even in civil law systems that do not admit judge-made law, it is not always clear when the function of interpretation of the criminal law ends and judicial lawmaking begins.

In English criminal law there are offences of common law origin. For example, murder is still a common law offence and lacks a statutory definition. The Homicide Act 1957 did not include a statutory definition of murder (or any other homicidal offense). There was, consequently, the astonishing spectacle of the definition of murder, still a matter of common law, being the subject of no less than six appeals to the House of Lords within the next 40 years (Director of Public Prosecutions v. Smith [1961] A.C. 290; Hyam v. Director of Public Prosecutions [1975] A.C. 55; Regina v. Cunningham [1982] A.C. 566; Regina v. Moloney [1985] A.C. 905; Regina v. Hancock [1986] A.C. 455; Regina v. Woollin [1998] 4 A11 E.R. 103 (H.L.)).

In cases of universal jurisdiction

The question of jurisdiction may sometimes come to contradict this principle. For example, customary international law allows the prosecution of pirates by any country (applying universal jurisdiction), even if they did not commit crimes at the area that falls under this country's law. A similar principle has appeared in the recent decades with regard to crimes of genocide (see genocide as a crime under domestic law); and UN Security Council Resolution 1674 "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity"[4] even if the State in which the population is being assaulted does not recognise these assaults as a breach of domestic law. However, it seems that universal jurisdiction is not to be expanded substantially to other crimes, so as to satisfy Nulla poena sine lege.

Since the Nuremberg Trials, penal law is taken to include the prohibitions of international criminal law, in addition to those of domestic law. Thus prosecutions have been possible of such individuals as Nazi war criminals[5] and officials of the German Democratic Republic responsible for the Berlin Wall,[6] even though their deeds may have been allowed or even ordered by domestic law. Also, courts when dealing with such cases will tend to look to the letter of the law at the time, even in regimes where the law as it was written was generally disregarded in practice by its own authors.

However, some legal scholars criticize this, because generally, in the legal systems of Continental Europe where the maxim was first developed, "penal law" was taken to mean statutory penal law, so as to create a guarantee to the individual, considered as a fundamental right, that he would not be prosecuted for an action or omission that was not considered a crime according to the statutes passed by the legislators in force at the time of the action or omission, and that only those penalties that were in place when the infringement took place would be applied. Also, even if one considers that certain actions are prohibited under general principles of international law, critics point out that a prohibition in a general principle does not amount to the establishment of a crime, and that the rules of international law also do not stipulate specific penalties for the violations.

In an attempt to address those criticisms, the statute of the recently established International Criminal Court provides for a system in which crimes and penalties are expressly set out in written law, that shall only be applied to future cases.

This principle is enshrined in several national constitutions, and a number of international instruments. See e.g. European Convention on Human Rights, article 7(1); Rome Statute of the International Criminal Court, articles 22 and 23.[7]

See also

Notes

  1. ↑ A description and analysis of the principle can be found in Shahram Dana, Beyond Retroactivity to Realizing Justice: The Principle of Legality in International Criminal Law Sentencing, 99 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 857 (2009)
  2. ↑ Boot, M. (2002). Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court. Intersentia. p. 94. ISBN 9789050952163.
  3. ↑ Klip, André (2011). Substantive Criminal Law of the European Union. Maklu. p. 69. ISBN 9789046604403.
  4. ↑ Resolution 1674 (2006) Archived February 23, 2009, at the Wayback Machine.
  5. ↑ Nuremberg Principles I & II state; "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." and "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law" respectively.
  6. ↑ Case of Streletz, Kessler and Krenz v. Germany (Applications nos. 34044/96, 35532/97 and 44801/98) (2001) 33 E.H.R.R. 31
  7. ↑ See also Popple, James (1989). "The right to protection from retroactive criminal law" (PDF). Criminal Law Journal 13 (4): 251–62. ISSN 0314-1160. Retrieved 5 August 2014.

References

  • Mokhtar, A. (2005). "Nullum Crimen, Nulla Poena Sine Lege: Aspects and Prospects". Statute Law Review 26: 41. doi:10.1093/slr/hmi005. 
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