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Reference to general principles of law was incorporated to enable the application of the national and international legislation, enacted during and after World War II, in respect of war crimes, collaboration with the enemy and treason, crimes against humanity to facts committed during the war. In that sense it constitutes a codification of the principles laid down by the tribunals of Nuremberg and Tokyo. However, it may also apply to cases other than those mentioned.
The travaux préparatoires to the Convention indicate that the purpose of the second paragraph of Article 7 was to specify that Article 7 did not affect laws which, in the wholly exceptional circumstances at the end of the Second World War, were passed in order to punish inter alia, war crimes so that Article 7 does not in any way aim to pass legal or moral judgment on those laws.
Art. 7§2 refers not only to principles of law common to the Contracting States, but to the general principles of law recognised by civilised nations. In that case the legal rule must be recognised outside this circle by a representative group of States, if the principle is to be regarded as a general one, thus sometimes it hardly can be distinguished from customary international law.
The concept of general principles of law as here referred requires that the facts concerned are not only made punishable in the legal systems of nearly all countries and/or under international law, but that their punishable character ensues from a fundamental and generally recognised principle of law.
The practical effect of Article 7§2 is simply to make it clear that the international law exception in Article 7§1 is not confined to treaty-based or customary international law, but extends to general principles.
Two paragraphs of Article 7 are interlinked and are to be interpreted in a concordant manner.
The Court reiterates that Article 7 § 2 of the Convention expressly provides that this Article shall not prejudice the trial and punishment of a 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. This is true of crimes against humanity, in respect of which the rule that they cannot be time-barred was laid down by the Charter of the Nuremberg International Tribunal (see Papon v. France (no. 2) (dec.), no. 54210/00, ECHR 2001‑XII, and Touvier v. France, no. 29420/95, Commission decision of 13 January 1997, Decisions and Reports 88-B, p. 161).\
Kolk and Kislyiy v. Estonia (dec.), 23052/04 and 24018/04, 17 January 2006
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.
Дата: 2019-02-02, просмотров: 179.