Principle of legality in criminal law

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The principle of legality in criminal law[1] was developed in the eighteenth century by the Italian criminal lawyer Cesare Beccaria and holds that no one can be convicted of a crime without a previously published legal text which clearly describes the crime (Latin: nulla poena sine lege, lit. 'no punishment without law'). This principle is accepted and codified in modern democratic states as a basic requirement of the rule of law. It has been described as "one of the most 'widely held value-judgement[s] in the entire history of human thought ' ".[2]

By country[edit]

Canada[edit]

See also: R v Grant, R v Mann, and Charkaoui v Canada (Minister of Citizenship and Immigration)

In Canada, the principle of legality in penal law is found in Article 9 of the Canadian Criminal Code[3] which declares that criminal infractions must fall under Canadian law, and that no one may be found guilty of a criminal infraction under common law.[clarification needed] The principle of legality is also mentioned in Article 11g:[4] "Every defendant has a right to not be found guilty of an action or omission which, at the moment it took place, did not constitute an infraction under the internal law of Canada..." Article 11g does however make an exception for crimes unanimously considered in international law to be genocide or crimes against humanity.[5]

Council of Europe[edit]

Member states of the Council of Europe (all internationally recognized countries in Europe except Belarus, Russia, and Vatican City, plus Armenia, Azerbaijan, Cyprus, and Georgia) are parties to Article 7 of the European Convention on Human Rights (ECHR), which prohibits punishment for acts or omissions which were not crimes at the time of their commission, as well as punishment in excess of the penalty available at the time.

France[edit]

Main article: Principle of legality in French criminal law

The principle of legality[6] in France (French: principe de légalité) goes back to the Penal Code of 1791 adopted during the French Revolution. The principle has its origins in the 1789 Declaration of the Rights of Man and of the Citizen, which endows it with constitutional force and limits the conditions in which citizens may be punished for infractions.,[citation needed]

France is also a member of the Council of Europe, and thus subject to Article 7 of the ECHR.

Germany[edit]

In Germany, Article 103, paragraph 2 of the Basic Law for the Federal Republic of Germany (German Constitution) bans retroactive criminality:

An action is only subject to a penalty if it was punishable under the law that was in effect before the action was taken.

Enacted after the fall of the Nazi régime, it was reaffirmed in a court decision concerning the actions of East German officials.[7]

Germany is also a member of the Council of Europe, and thus subject to Article 7 of the ECHR.

Switzerland[edit]

Article 1 of the Swiss Criminal Code provides that a penalty may only be pronounced for an action expressly forbidden by law.[8][9]

An "illegal" action may be "licit" in Switzerland if there is a justifying circumstance, such as legitimate defense or necessity.[10]

Switzerland is also a member of the Council of Europe, and thus subject to Article 7 of the ECHR.

United States[edit]

In the United States, the Fifth Amendment of the Constitution of the United States contains the concept of due process.[11] Retroactive criminal laws are forbidden in Article I of the Constitution, section 10, paragraph 1.

See also[edit]

References[edit]

  1. ^ Shahram 2009.
  2. ^ Jerome Hall, in Hall 1960, as quoted by Justice Antonin Scalia in USSC 2001, p. 468
  3. ^ CrC 1985, art 9.
  4. ^ CanAct 1993, Part I, 11.
  5. ^ CanAct 1993, Part I, 11(g).
  6. ^ Dalloz, art.111-3.
  7. ^ Hobe & Tietje 2021.
  8. ^ Criminal Law, 22 Can. B. Rev. 870 (1944), via Heinonline, Google Scholar
  9. ^ Code pénal suisse du 21 décembre 1937 vu l’art. 123, al. 1 et 3, de la Constitution vu le message du Conseil fédéral du 23 juillet 1918, by Assemblée fédérale de la Confédération suisse, (consulted 22 November 2022)
  10. ^ Articles 14, 15, 16, 17, 18
  11. ^ US Constitution 1789.
Notes

Works cited[edit]

  • "The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11". CanLII. Ottawa: Canadian Legal Information Institute. 1993. Retrieved 2 January 2023.
  • "Code pénal – Art. 111-3" (in French). Paris: Editions Dalloz. Archived from the original on 2022-11-22. Retrieved 11 December 2021. Art. 111-3 Nul ne peut être puni pour un crime ou pour un délit dont les éléments ne sont pas définis par la loi, ou pour une contravention dont les éléments ne sont pas définis par le règlement. Nul ne peut être puni d'une peine qui n'est pas prévue par la loi, si l'infraction est un crime ou un délit, ou par le règlement, si l'infraction est une contravention. [Art. 111-3 No one may be punished for a crime or a délit whose elements are not defined by law, or for a contravention whose elements are not defined by regulation. No one may be punished by a penalty that is not provided for by law, if the offense is a crime or a délit, or by the regulations, if the offense is a contravention.]
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