Condensed: Criminal liability andpunishment may only be imposed if there are clear and precise provisions in the law. Criminal law must not be extensively construed to an accused’s detriment. An individual must know from the wording of the relevant provision, as interpreted by the courts, what acts and omission will make him or her liable to prosecution and punishment. Comprehensive: Article 15 of the ICCPR prohibits *retroactive criminal law* and punishment otherwise not based on law. Similar provisions are included in regional human rights instruments.[1]Criminal liability andpunishment may thus only be imposed if there are clear and precise provisions in the law. The HRC has held that according to article 15 of the ICCPR ‘criminal liability and punishment [is] limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty.’[2] In Kokkinakis v Greece the ECtHR noted that:[3] only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) … criminal law must not be extensively construed to an accused’s detriment, for instance by analogy … an offence must be clearly defined in law. This condition 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 liable. In the case, dealing with the definition of proselytism in Greek law, the ECtHR held that ‘the wording of many statutes is not absolutely precise … Criminal-law provisions on proselytism fall within this category. The interpretation and application of such enactments depend on practice … 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.’[4] In a case dealing with the prohibition of marital rape through development of the common law, the ECtHR held:[5] Article 7 of the Convention cannot be read as outlawing the 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 reasonably be foreseen. In Castillo-Petruzzi and others v Peru, the IACtHR held:[6] Crimes must be classified and described in precise and unambiguous language that narrowly defines the punishable offence … This means a clear definition of the criminalized conduct, establishing its elements and the factors that distinguish it from behaviors that are either not punishable offences or are punishable but not with imprisonment.
[1] See also ACHPR art 7(2), ACHR art 9, ECHR art 7; ICC Statute art 22. The prohibition of retroactive criminal law is non-derogable in terms of ICCPR art 4(2),ECHR art 15and ACHR art 27(2)
Criminal liability and punishment may only be imposed if there are clear and precise provisions in the law. Criminal law must not be extensively construed to an accused’s detriment. An individual must know from the wording of the relevant provision, as interpreted by the courts, what acts and omission will make him or her liable to prosecution and punishment.
Comprehensive:
Article 15 of the ICCPR prohibits *retroactive criminal law* and punishment otherwise not based on law. Similar provisions are included in regional human rights instruments.[1] Criminal liability and punishment may thus only be imposed if there are clear and precise provisions in the law.
The HRC has held that according to article 15 of the ICCPR ‘criminal liability and punishment [is] limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty.’[2]
In Kokkinakis v Greece the ECtHR noted that:[3]
only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) … criminal law must not be extensively construed to an accused’s detriment, for instance by analogy … an offence must be clearly defined in law. This condition 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 liable.
In the case, dealing with the definition of proselytism in Greek law, the ECtHR held that ‘the wording of many statutes is not absolutely precise … Criminal-law provisions on proselytism fall within this category. The interpretation and application of such enactments depend on practice … 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.’[4]
In a case dealing with the prohibition of marital rape through development of the common law, the ECtHR held:[5]
Article 7 of the Convention cannot be read as outlawing the 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 reasonably be foreseen.
In Castillo-Petruzzi and others v Peru, the IACtHR held:[6]
Crimes must be classified and described in precise and unambiguous language that narrowly defines the punishable offence … This means a clear definition of the criminalized conduct, establishing its elements and the factors that distinguish it from behaviors that are either not punishable offences or are punishable but not with imprisonment.
[1] See also ACHPR art 7(2), ACHR art 9, ECHR art 7; ICC Statute art 22. The prohibition of retroactive criminal law is non-derogable in terms of ICCPR art 4(2),ECHR art 15and ACHR art 27(2)
[2] HRC, General Comment 29, para. 7.
[3] Kokkinakis v Greece, application 14307/88 (ECtHR 1993) para. 52.
[4] Kokkinakis v Greece, application 14307/88 (ECtHR 1993) para. 40.
[5] CR v UK, application 20190/92 (ECtHR 1995) para 34.
[6] Castillo-Petruzzi and Others v Peru, judgment, Series C no 52 (IACtHR 1999) para. 121.