cje lecture 6 & 7 principles of criminal law and criminal … principles of criminal law and...

Cje

Karolina Kremens, LL.M., Ph.D.

Wojciech Jasiński, Ph.D. Department of Criminal Procedure

Faculty of Law, Administration and Economics

University of Wrocław

Lecture 6 & 7

Principles of Criminal Law and Criminal Liability

Criminal Law I

Lecture PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY

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.


Principles of Criminal Law Principles governing the range of criminal

law

Principle of minimum criminalisation

(the minimalist approach)

Lecture

PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY

Principles of Criminal Law Principles governing the range of criminal law



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)


Principles of Criminal Law Principles governing the range of criminal law



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)


Principles of Criminal Law

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).


Principles of Criminal Law 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.



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)

6) Principle of proportionality


Principles of Criminal Law Principles of criminal liability

Personal and individual liability

- non-transferable liability

- prohibition of collective liability



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.



Personal and individual liability – ECHR case-law That principle was reaffirmed in the case of Lagardère (Lagardère

v. France, no. 18851/07, 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.


Principles of Criminal Law 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

no mens rea, no causation, no defences



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.




Sources:

International Covenant on Civil and Political Rights (1966)

Article 15

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 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.




Sources:


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.




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.



Nulla poena sine lege

Sources:


Article 11.






committed.




Sources:


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.




Sources:


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.




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


under national or international law at the time when it was


one that was applicable at the time the criminal offence was

committed.

A non-derogable right




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


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.



Nullum crimen/nulla poena sine lege

European Court of Human Rights – General principles

CASE OF VYERENTSOV v. UKRAINE, 11/04/2013

62. 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).





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. 32492/96,

32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000-

VII; Achour v. France [GC], no. 67335/01, § 41, ECHR 2006-IV;

and Kononov v. Latvia [GC], no. 36376/04, § 185, ECHR 2010).





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.





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).





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).




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."





CASE OF KOKKINAKIS v. GREECE 25/05/1993

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.





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."





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.






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 (…).






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 (…).





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 1992. 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.





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.






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 (…).






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.






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.






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).






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.






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 1955. 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.






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).






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 1992. 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.






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.





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.





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.





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.





Dragotoniu and Militaru-Pidhorni v. Romania - 77193/01 Judgment 24.5.2007 - ANALOGY

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 State-

owned company, whereas they had been employees of a

private bank. The Court of Appeal allowed the prosecution’s

appeal and upheld the applicants’ conviction.





Dragotoniu and Militaru-Pidhorni v. Romania - 77193/01

Judgment 24.5.2007

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.





Dragotoniu and Militaru-Pidhorni v. Romania - 77193/01

Judgment 24.5.2007

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.





CASE OF C.R. v. THE UNITED KINGDOM 22/11/1995 , appl. 20190/92 -

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.





CASE OF C.R. v. THE UNITED KINGDOM 22/11/1995 , appl. 20190/92

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).





Camilleri v. Malta - 42931/10, Judgment 22.1.2013

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.





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.





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.



Non-retroactivity of criminal law (lex retro non agit)

Sources:


Article 11.






committed.


Principles of Criminal Law 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



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



Prohibition of retroactive criminalisation

Veeber v. Estonia (no. 2) (application no. 45771/99), 21.01. 2003

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 148-1 § 7 of the Criminal Code, with: forgery

and fabrication of documents on five occasions from 1993-1994 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 148-1 § 7 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 1995. It

considered that the acts constituted an ongoing crime. The applicant

was ordered to pay the city tax authorities 853,550 Estonian kroons.



Prohibition of retroactive criminalisation

Veeber v. Estonia (no. 2) (application no. 45771/99), 21.01. 2003

The applicant appealed, arguing that Article 148-1 § 7 had been

applied retroactively, as it only entered into force on 13 January 1995.

Prior to that date, conviction under Article 148-1 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 1995.

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



Prohibition of imposing heavier penalty than

provided by law

Maktouf and Damjanović v. Bosnia and Herzegovina [GC] - 2312/08

and 34179/08, Judgment 18.7.2013 [GC]

Facts – Both applicants were convicted by the Court of Bosnia and

Herzegovina (“the State Court”) of war crimes committed against

civilians during the 1992-1995 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”)




provided by law


and 34179/08, Judgment 18.7.2013 [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.




provided by law


and 34179/08, Judgment 18.7.2013 [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.




provided by law


and 34179/08, Judgment 18.7.2013 [GC]

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.




provided by law


and 34179/08, Judgment 18.7.2013 [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.




provided by law


and 34179/08, Judgment 18.7.2013 [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.




provided by law Maktouf and Damjanović v. Bosnia and Herzegovina [GC] - 2312/08

and 34179/08, Judgment 18.7.2013 [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.




provided by law Maktouf and Damjanović v. Bosnia and Herzegovina [GC] - 2312/08

and 34179/08, Judgment 18.7.2013 [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

sentencing provisions of the 1976 Code should have been applied.




provided by law

M. v. Germany - 19359/04

Judgment 17.12.2009

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.




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.




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

1998. 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.




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 preventive-

detention order.




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.




provided by law

This measure appeared, therefore, to be among the most severe – if

not the most severe – which could be imposed under the German

Criminal Code. In view of the foregoing, the Court concluded that

preventive detention under the German Criminal Code was to be

qualified as a “penalty” for the purposes of Article 7 § 1 of the

Convention.

The Court was further unconvinced by the Government’s argument

that the extension of the applicant’s detention merely concerned the

execution of the penalty imposed on the applicant by the sentencing

court. Given that at the time the applicant committed the offence he

could have been kept in preventive detention only for a maximum of

ten years, the extension had constituted an additional penalty which

had been imposed on him retrospectively, under a law enacted after

he had committed his offence.



Obligation to apply lex mitior agit principle

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.

No explicit lex mitior agit principle (unlike ICCP, EU Charter)




Scoppola v. Italy (no. 2) [GC] - 10249/03, Judgment 17.9.2009

Facts – In 1999 the applicant killed his wife and injured one of

his children. After an investigation the prosecution service

requested that he be committed to stand trial on charges of

murder, attempted murder, ill-treatment of his family and

unauthorised possession of a firearm. At the time when the

offences were committed they attracted a sentence of life

imprisonment with daytime isolation. At the hearing before the

preliminary hearings judge the applicant was granted his

request to be tried under the summary procedure, a simplified

process which entailed a reduction of sentence in the event of

conviction. In the version in force at that time Article 442 § 2 of

the Code of Criminal Procedure (“the CCP”) provided that, if

the crime committed by the defendant was punishable by life

imprisonment, the appropriate sentence should be thirty years.



Obligation to apply lex mitior agit principle Facts – The preliminary hearings judge found the applicant guilty and

noted that he was accordingly liable to life imprisonment; however, as the applicant had opted for the summary procedure, the judge sentenced him to a term of thirty years. The Public Prosecutor’s Office at the Court of Appeal appealed on points of law against the preliminary hearings judge’s judgment, arguing that he should have applied Article 7 of Legislative Decree no. 341 of 24 November 2000, which had entered into force on the very day when the applicant was convicted. The prosecution contended in particular that the said Article 7 had amended Article 442 of the CCP and now provided that, in the event of trial under the summary procedure, life imprisonment was to be substituted for life imprisonment with daytime isolation if there were “cumulative offences” or a “continuous offence”. In 2002 the Assize Court of Appeal sentenced the applicant to life imprisonment, ruling firstly that the new procedural rule was applicable to all pending proceedings, and secondly that the applicant could have withdrawn his request to be tried under the summary procedure and have stood trial under the ordinary procedure.



Obligation to apply lex mitior agit principle Law – Article 7: European Commission of Human Rights had expressed

the opinion that, unlike Article 15 § 1 in fine of the United Nations Covenant on Civil and Political Rights, Article 7 of the Convention

did not guarantee the right to a more lenient penalty provided for in a law subsequent to the offence. Repeating that ruling, the

Court had reiterated that Article 7 does not afford the right of an offender to application of a more favourable criminal law. However, since 1978, a consensus had gradually emerged in

Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, had become a

fundamental principle of criminal law. In reaching that finding the Court referred to the American Convention on Human Rights, the

European Union’s Charter of Fundamental Rights, the case-law of the Court of Justice of the European Communities, the Statute of the International Criminal Court and the case-law of the

International Criminal Tribunal for the former Yugoslavia.



Obligation to apply lex mitior agit principle Law – In the Court’s opinion, it was consistent with the principle of the

rule of law, of which Article 7 formed an essential part, to expect a trial court to apply to each punishable act the penalty which the

legislator considered proportionate. Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the

commission of the offence would mean applying to the defendant’s detriment the rules governing the succession of criminal laws in time. In addition, it would amount to disregarding

any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State – and the community it represented –

now considered excessive. The Court noted that the obligation to apply, from among several criminal laws, the one whose provisions

were the most favourable to the accused was a clarification of the rules on the succession of criminal laws, which was in accord with another essential element of Article 7, namely the

foreseeability of penalties.




Law – The Court accordingly took the view that it was

necessary to depart from the case-law established by

the Commission in the case of X v. Germany and affirm

that Article 7 § 1 of the Convention guaranteed not only

the principle of non-retrospectiveness of more stringent

criminal laws but also, and implicitly, the principle of

retrospectiveness of the more lenient criminal law. That

principle was embodied in the rule that where there

were differences between the criminal law in force at

the time of the commission of the offence and

subsequent criminal laws enacted before a final

judgment was rendered, the courts were required to

apply the law whose provisions were most favourable to

the defendant.

Violation (11votes to 6)


Principle of proportionality

Prohibition of inhuman or degrading punishment

Article 3 ECHR Article 7 ICCPR Article 4 EU Charter

Prohibition of grossly disproportionate to the offense

Amendment VIII to American Constitution Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

„Conditions [of isolation] must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment” US Supreme Court.

cje lecture 6 & 7 principles of criminal law and criminal … principles of criminal law and...

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