The principle of the non retroactivity of criminal law

•The principle of the non

retroactivity of criminal laws

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•Art. 35 Paragraph 13 FRSPC

•No person may be convicted of a crime for committing an act that was not an offence at the time it was committed, unless it is a crime against humanity under international law.

 

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Art. 2 CP

I. No one may be punished

for an act which did not constitute an offence

according to the law in force at the time it was committed. 

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This principle is valid both when:

1) a new offence is created by law;

2) an existing offence is defined in a

different way as long it results more

severe for the offender.

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The principle of favorable retroactivity 

Art. 2 CP

II. No one may be punished for an act which does not constitute an offence according to a subsequent law; and if the sentence has been

imposed, the execution and the penal consequences thereof shall cease.

III. If the law in force at the time an offence was committed and subsequent law are different, the law shall be applied the provisions of which are more favorable to the accused, unless a final judgement has been pronounced. 

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The principle of favorable retroactivity 

1) Abolition of an offence Legislation which repeals an incriminating norm applies retrospectively in favor of an accused person. Regardless of whether the accused has already been convicted (abolitio criminis);

2) The law is only modified after the commission of a crime, the most favorable law is applied unless the accused has already been irrevocably convicted. 

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The principle of favorable retroactivity 

The new law is more lenient when:

•new law abolishes a previous offence;

• new law narrows the scope of an existing

offence;

• new law modifies the statute of

limitations: when?

• new law introduces a new attenuating

circumstance;

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The principle of favorable retroactivity 

The constitutional Court declares a criminal provision illegitimate – what are the effects?

Art. 109C Cost.

“When the Court declares the constitutional illegitimacy of a law or

enactment having force of law, the law ceases to have effect the day following the publication of the decision”.

•The principle of favorable retroactivity

The law ceases to have effect the day following the publication of the decision – but it’s considered deprived of legal force

ex tunc: since the very day of its entry into force.

What about criminal laws declared invalid?

Same effects as modifications under article 2 CP. 

•The principle of favorable retroactivity

Derogation to the derogation?

Art. 2 par. 4 CP

1) Temporary laws

2) Exceptional laws

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