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Article 7. No punishment without law
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. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2, This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations.
Article 7 contains the following two separate principles:
1) a criminal conviction can only be based on a norm which existed at the time of the incriminating act or omission – nullum crimen sine lege;
2) on account of the infringement of that norm no heavier penalty may be imposed than the one that was applicable at the time the offence was committed – nulla poena sine lege;
The Court in its practice has distinguished a third principle – the authority applying criminal law shall interpret it not extensively, for instance by analogy, to the accused’s detriment.
Accordingly, as the Court held in its Kokkinakis v. Greece judgment of 25 May 1993 (Series A no. 260-A, p. 22, § 52), Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. From these principles it follows that an offence must be clearly defined in the law, more severe legislation cannot be applied to an ongoing situation that arose before it came into force. In its aforementioned judgment the Court added that this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable.
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 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.
In principle the national legislature is free to decide what act or mission has to be qualified as an offence and has to be penalised. Article 7 is not in issue there .The European review in this regard is confined to the question of whether or not any of the other provisions of the Convention has been violated by that legislation (e.g. criminalisation of homosexual relations would contradict the Convention, namely the respect of private life).
Concepts
Meaning of the words “criminal offence” is closely related to the notion of “criminal charge” in Article 6. Thus Article 7 might also be applicable to disciplinary and administrative proceedings.
Article 7 applies only to criminal proceedings resulting in a conviction or imposition of a criminal penalty. Thus it does not apply to extradition or deportation, rules governing parole, a procedural fine imposed during civil proceedings of financial liability, preventive detention, placement on sex offenders registry and etc.
“Penalty” is also autonomous in scope. The Court takes into account whether a particular measure amounts in substance to a penalty. In this regard the following factors are relevant: 1) the characterisation of the measure under national law; 2) its nature and purpose; 3) the procedure involved; 4) its severity.
There is a distinction between a measure that constitutes in substance a “penalty” and a measure that concerns the “execution” or “enforcement” of the “penalty” - where the nature and purpose of a measure relates to the remission of a sentence or a change in a regime for early release, this does not form part of the “penalty” within the meaning of Article 7.
The fact that the person feels that the effects of the sanction are punitive, is not sufficient to establish that the sanction has a punitive purpose under Article 7, the purpose of the sanction must be established in an objective way.
Confiscation order imposed in addition to a sentence of imprisonment – constitutes a penalty. The fact that the confiscation order had also reparative and preventive aims was not decisive (Welch case). Prolongation of a term of imprisonment – constitutes a penalty. The Court took into account that the sanction was ordered by a criminal court, was intended to be deterrent and could have led to a punitive deprivation of liberty (Jamil case). A demolition order, which did not depend on any finding of guilt and which had a restorative aim, did not constitute a penalty within the meaning of Article 7 (Saliba case).
The word “heavier” refer to the severity of the punishment or a punishment of a different kind that is more burdensome.
The nulla poena principle with its requirement of legal certainty does not go so far that the criminal law must provide exact measure of the penalty or an exhaustive enumeration of alternatives. This requirement means that if the maxima is indicated, the Court examines whether the maximum penalty is not exceeded. If a violation of the norm is penalised without a maximum being laid down, there will be no question of a heavier penalty than the one that was applicable at the time the criminal offence was committed, unless at the latter time a different penalty was provided for. ‘Applicable penalty’ is the penalty which is usually inflicted for that particular offence within the legal system concerned, or which in any event was reasonable to be expected for the offender.
If after the time the offence was committed, but before the trial, the norm of criminal law or the penalty has been modified in a sense which is more favourable to the accused, the accused must be granted the benefit of the more lenient criminal law (Scoppola (no.2) case).
Law: not only statutory law, but also rules of common law and customary law may form a basis for criminal conviction, provided that it is adequately accessible and is formulated with sufficient precision to enable the person concerned to regulate his conduct.
The term “law” has the same concept as the one to which the Convention refers elsewhere when using that term. The provisions have to be sufficiently foreseeable and accessible. This requirement serves to avoid a criminal conviction being based on a legal norm of which the person concerned could not, or at least need not, have been aware of beforehand. This condition is satisfied if the individual may know from the wording of the relevant provision and, if need be, from the relevant case law, what acts and omissions will make him liable.
National law – must be understood to mean that a criminal judgment can be based only on the national law of the State in question and not on the law of another State.
It should be noted in this regard that the Court has held it to be legitimate for a State governed by the rule of law to bring criminal proceedings against the persons who have committed crimes under a former regime.
International law – raises the question of the internal effect of international law within the national legal order. In those Contracting States where international law has to be transformed in order to have internal effect, this effect cannot be given in incidental cases to an international criminal law provision.
A conviction which results from the retrospective application of domestic law will not breach Article 7§1 if the conduct of the accused was a crime under international law at the time that it occurred. Certain offences, such as war crimes, piracy, torture and genocide are treated as crimes of universal jurisdiction under public international law. A state may prosecute individuals for such offences, wherever committed, solely on the basis that it has custody of the alleged offender.
The Court acknowledges that however clearly drafted a legal provision may be, there is always an inevitable element of judicial interpretation. It is inevitable for the making of legal provisions that more or less vague wording is used. The Court also accepts that legal provisions must have a certain flexibility to handle changing circumstances and to avoid excessive rigidity. The Court recognises that it might be difficult to frame laws with absolute precision and that a certain degree of flexibility may be vested to national courts.
As regards common law, which is law developed by courts, the Court has held that Article 7 “cannot be read as outlawing gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could be reasonably foreseen. The court’s interpretation of the relevant law should not go beyond what could be reasonably foreseen.
The Court considers that the scope of notion of foreseeability depends to a considerable degree on: 1) the content of the text in issue; 2) the field that is designed to cover; 3) number and status of those to whom it is addressed (persons carrying on a professional activity can be expected to take special care in assessing the risks that such activity entails).
Accordingly, absolute legal certainty or foreseeability cannot be required and indeed may be undesirable, entailing the risk of excessive rigidity, since the law has to be able to keep pace with changing circumstances.
Interplay
Article 5
Many cases concerning Article 7 complaints also entail alleged breaches of Article 5, in terms of detention not compliant with the Convention. This was the situation in several cases against Germany, with regard to continued placement in preventive detention, beyond the maximum period authorised by the law applicable at the time the offence was committed, which led to violations of both Articles 5 and 7 of the Convention.
| Applicant’s continued placement in preventive detention beyond the maximum period authorised at the time of his placement: violation of Article 5 § 1 Retrospective extension of preventive detention from a maximum of ten years to an unlimited period of time: violation of Article 7 M. v. Germany , 19359/04, 17 December 2009 |
Article 6
Certain complaints under Article 7 are brought before the Court combined with complaints concerning fair trial issues. In these cases, the Court would analyse the core complaint and consider no longer necessary to examine the other ones.
| 105. The applicant complained that he had not had a fair trial, in violation of Article 6 of the Convention. He further complained of a violation of Article 13, arguing that the rules on the basis of which he had been convicted had been ambiguous. Lastly, he considered that the alleged violations also amounted to a violation of Article 17. 106. The Court observes, however, that it has examined essentially the same issues under Article 7 of the Convention. In the light of its finding of a violation of Article 7, it concludes that in the circumstances of the present case it is unnecessary to examine the applicant’s complaints under Articles 6, 13 and 17 of the Convention. Liivik v. Estonia , 12157/05, 25 June 2009 |
Even in cases in which the complaints are substantiated separately by the applicant, the Court can decide to examine the one it considers prevalent.
| 96. The applicant also complained in general terms that his conviction had been politically motivated and as such, unfair, in breach of Article 6 § 1 of the Convention, … 98. The Court considers that this complaint is also admissible. However, in the light of its finding of a violation of Article 7 of the Convention (see paragraph 95 above), it concludes that in the circumstances of the present case it is unnecessary to examine the applicant’s complaint under Article 6§ 1 of the Convention (fairness of the proceedings). Korbely v. Hungary (GC), 9174/02, 19 September 2008 |
Nullum crimen sine lege
Violation
Conflicting statutory provisions concerning meaning of a sentence of life imprisonment for the purposes of establishing eligibility for remission.
Kafkaris v. Cyprus (GC), 21906/04, 12 February 2008
Conviction for illegal fishing in territorial waters based on unforeseeable application of legislation implementing United Nations Convention on the Law of the Sea.
Achour v. France (GC), 67335/01, 29 March 2006
Change of law on remission for good behaviour in case of a life prisoner who had been informed at the outset by the trial court that his sentence meant imprisonment for life.
Kafkaris v. Cyprus (GC), 21906/04, 12 February 2008
Use of undefined colloquial expression in definition of criminal offence.
Grava v. Italy , 43522/98, 10 July 2003
Sentence subject to rules on recidivism as a result of the application of a new law.
Achour v. France (GC), 67335/01, 29 March 2006
Retrospective extension of preventive detention intended to secure medical and therapeutic treatment.
Article 7. No punishment without law
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. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2, This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations.
Article 7 contains the following two separate principles:
1) a criminal conviction can only be based on a norm which existed at the time of the incriminating act or omission – nullum crimen sine lege;
2) on account of the infringement of that norm no heavier penalty may be imposed than the one that was applicable at the time the offence was committed – nulla poena sine lege;
The Court in its practice has distinguished a third principle – the authority applying criminal law shall interpret it not extensively, for instance by analogy, to the accused’s detriment.
Accordingly, as the Court held in its Kokkinakis v. Greece judgment of 25 May 1993 (Series A no. 260-A, p. 22, § 52), Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. From these principles it follows that an offence must be clearly defined in the law, more severe legislation cannot be applied to an ongoing situation that arose before it came into force. In its aforementioned judgment the Court added that this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable.
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 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.
In principle the national legislature is free to decide what act or mission has to be qualified as an offence and has to be penalised. Article 7 is not in issue there .The European review in this regard is confined to the question of whether or not any of the other provisions of the Convention has been violated by that legislation (e.g. criminalisation of homosexual relations would contradict the Convention, namely the respect of private life).
Concepts
Meaning of the words “criminal offence” is closely related to the notion of “criminal charge” in Article 6. Thus Article 7 might also be applicable to disciplinary and administrative proceedings.
Article 7 applies only to criminal proceedings resulting in a conviction or imposition of a criminal penalty. Thus it does not apply to extradition or deportation, rules governing parole, a procedural fine imposed during civil proceedings of financial liability, preventive detention, placement on sex offenders registry and etc.
“Penalty” is also autonomous in scope. The Court takes into account whether a particular measure amounts in substance to a penalty. In this regard the following factors are relevant: 1) the characterisation of the measure under national law; 2) its nature and purpose; 3) the procedure involved; 4) its severity.
There is a distinction between a measure that constitutes in substance a “penalty” and a measure that concerns the “execution” or “enforcement” of the “penalty” - where the nature and purpose of a measure relates to the remission of a sentence or a change in a regime for early release, this does not form part of the “penalty” within the meaning of Article 7.
The fact that the person feels that the effects of the sanction are punitive, is not sufficient to establish that the sanction has a punitive purpose under Article 7, the purpose of the sanction must be established in an objective way.
Confiscation order imposed in addition to a sentence of imprisonment – constitutes a penalty. The fact that the confiscation order had also reparative and preventive aims was not decisive (Welch case). Prolongation of a term of imprisonment – constitutes a penalty. The Court took into account that the sanction was ordered by a criminal court, was intended to be deterrent and could have led to a punitive deprivation of liberty (Jamil case). A demolition order, which did not depend on any finding of guilt and which had a restorative aim, did not constitute a penalty within the meaning of Article 7 (Saliba case).
The word “heavier” refer to the severity of the punishment or a punishment of a different kind that is more burdensome.
The nulla poena principle with its requirement of legal certainty does not go so far that the criminal law must provide exact measure of the penalty or an exhaustive enumeration of alternatives. This requirement means that if the maxima is indicated, the Court examines whether the maximum penalty is not exceeded. If a violation of the norm is penalised without a maximum being laid down, there will be no question of a heavier penalty than the one that was applicable at the time the criminal offence was committed, unless at the latter time a different penalty was provided for. ‘Applicable penalty’ is the penalty which is usually inflicted for that particular offence within the legal system concerned, or which in any event was reasonable to be expected for the offender.
If after the time the offence was committed, but before the trial, the norm of criminal law or the penalty has been modified in a sense which is more favourable to the accused, the accused must be granted the benefit of the more lenient criminal law (Scoppola (no.2) case).
Law: not only statutory law, but also rules of common law and customary law may form a basis for criminal conviction, provided that it is adequately accessible and is formulated with sufficient precision to enable the person concerned to regulate his conduct.
The term “law” has the same concept as the one to which the Convention refers elsewhere when using that term. The provisions have to be sufficiently foreseeable and accessible. This requirement serves to avoid a criminal conviction being based on a legal norm of which the person concerned could not, or at least need not, have been aware of beforehand. This condition is satisfied if the individual may know from the wording of the relevant provision and, if need be, from the relevant case law, what acts and omissions will make him liable.
National law – must be understood to mean that a criminal judgment can be based only on the national law of the State in question and not on the law of another State.
It should be noted in this regard that the Court has held it to be legitimate for a State governed by the rule of law to bring criminal proceedings against the persons who have committed crimes under a former regime.
International law – raises the question of the internal effect of international law within the national legal order. In those Contracting States where international law has to be transformed in order to have internal effect, this effect cannot be given in incidental cases to an international criminal law provision.
A conviction which results from the retrospective application of domestic law will not breach Article 7§1 if the conduct of the accused was a crime under international law at the time that it occurred. Certain offences, such as war crimes, piracy, torture and genocide are treated as crimes of universal jurisdiction under public international law. A state may prosecute individuals for such offences, wherever committed, solely on the basis that it has custody of the alleged offender.
The Court acknowledges that however clearly drafted a legal provision may be, there is always an inevitable element of judicial interpretation. It is inevitable for the making of legal provisions that more or less vague wording is used. The Court also accepts that legal provisions must have a certain flexibility to handle changing circumstances and to avoid excessive rigidity. The Court recognises that it might be difficult to frame laws with absolute precision and that a certain degree of flexibility may be vested to national courts.
As regards common law, which is law developed by courts, the Court has held that Article 7 “cannot be read as outlawing gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could be reasonably foreseen. The court’s interpretation of the relevant law should not go beyond what could be reasonably foreseen.
The Court considers that the scope of notion of foreseeability depends to a considerable degree on: 1) the content of the text in issue; 2) the field that is designed to cover; 3) number and status of those to whom it is addressed (persons carrying on a professional activity can be expected to take special care in assessing the risks that such activity entails).
Accordingly, absolute legal certainty or foreseeability cannot be required and indeed may be undesirable, entailing the risk of excessive rigidity, since the law has to be able to keep pace with changing circumstances.
Дата: 2019-02-02, просмотров: 216.