Condensed: International human rights law prohibits the prosecution and punishment of any person for (a) an act or omission (b) which did not constitute a criminal offence at the time of commission or omission under (c) national or international law, or (d) imposition of a penalty that was not in force at the time of commission or omission. The prohibition on retroactive law only applies to substantive criminal law, and not to procedural aspects of criminal law. Civil proceedings also fall outside of the scope of this right. An exception to the prohibition of retroactive criminal law is that a person may be prosecuted before national courts for international crimes such as acts of torture, crimes against humanity etc despite the fact that national law did not provide for such an offence at the time of commission. The prohibition on retroactive criminal law prohibits the imposition of a heavier penalty than what was provided for at the time the crime was committed. Comprehensive: Article 15(1) of the ICCPR provides, inter alia: 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 when the criminal offence was committed. This provision prohibits retroactive criminal law and punishment otherwise not based on law. Similar provisions are included in regional human rights instruments.[1] The principle is also known as nullum crimen sine lege. (See also *prosecution for an act or omission which does not constitute a criminal offence*). Violations of the prohibition on retroactive criminal law occur where laws are applied in retrospect. In Weinberger v Uruguay, a journalist was prosecuted for membership in the communist party which had been legal when he joined it. The HRC found that the law prohibiting membership of the party had been applied retroactively.[2] The application of retroactive military decrees in Nigeria was held by the ACHPR to violate the prohibition on retroactive criminal law.[3] The prohibition on retroactive criminal law only applies to substantive criminal law. In Nicholas v Australia, the HRC held that a change in the rules of procedure allowing admissibility of evidence that was inadmissible at the time of the commission of the offence did not violate the nullum crimen sine lege rule as long as the elements of the crime itself remained the same.[4] Civil proceedings fall outside of the scope of this right. In Strik v Netherlands, a municipal employee brought a complaint alleging violation of article 15(1) of the ICCPR during disciplinary hearings of a labour nature. The HRC held that 'disciplinary measures' fell out of the scope of the Covenant since article 14 and 15 'relate to criminal offences'.[5] There is no violation of article 15(1) of the ICCPR where the act in question was not prohibited at the time in terms of national law, but was a criminal offence under international law or law of nations.[6] In other words a person may be prosecuted before national courts for acts of torture, crimes against humanity, war crimes, etc. despite the fact that national law did not provide for such an offence at the time of commission. The prohibition on retroactive criminal law prohibits the imposition of a heavier penalty than what was provided for at the time the crime was committed.[7] (See *right to benefit from a lower penalty*). In Fardon v Australia, a case dealing with preventative detention, the HRC held:[8] since the DPSOA was enacted in 2003 shortly before the expiry of the author’s sentence for an offence for which he had been convicted in 1989 and which became an essential element in the Court orders for his continued incarceration, the DPSOA was being retroactively applied to the author. This also falls within the prohibition of Article 15 paragraph 1 of the Covenant, in that he has been subjected to a heavier penalty “than was applicable at the time when the criminal offence was committed”. In Welch v UK, the ECtHR held that a confiscation order based on a law that entered into force after the commission of the offence violated the prohibition on retroactive law.[9] In Filipovich v Lithuania, the introduction of new latitude of sentences for murder of between 5-12 years from one of between 3-12 years was found not to violate the complainant's rights. The complainant had been sentenced to six years and the HRC held that this sentence was well within the latitude provided by the earlier law.[10] The HRC held in ARS v Canada that mandatory supervision of a person who is released after having served a custodial sentence does not constitute a penalty for the purposes of article 15.[11]
[1] See also ACHPR art 7(2), ACHR art 9, ECHR art 7.
[2]Weinberger v Uruguay communication 28/1978 (HRC 1980) para 16.
[3]Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria communication 101/93 (ACHPR 1995). See also Media Rights Agenda and Others v Nigeria (ACHPR 1998) para 59.
[4]Nicholas v Australia communication 1080/2002 (HRC 2004) para 7.7.
[5]Strik v the Netherlands communication 1001/2001 (HRC 2002) para 7.3.
[7] See eg Gómez Casafranca v Peru, communication 981/2001 (HRC 2003) para 7.4.
[8] Communication 1629/2007 (HRC 2010) para 7.4. See also Tillman v Australia communication 1635/2007 (HRC 2010) para 7.4.
[9]Welch v UK application 17440/90 (ECtHR 1995) para 35.
[10]Filipovich v Lithuania communication 875/1999 (HRC 2001) para 7.2. See also Marz v Russia communication 1425/05 (HRC 2009) where the complainant unsuccessfully argued that commutation of the death penalty to life imprisonment constituted heavier penalty. (Para 6.6).
[11]ARS v Canada communication 91/1981 (HRC 1984) para 5.3.
International human rights law prohibits the prosecution and punishment of any person for (a) an act or omission (b) which did not constitute a criminal offence at the time of commission or omission under (c) national or international law, or (d) imposition of a penalty that was not in force at the time of commission or omission. The prohibition on retroactive law only applies to substantive criminal law, and not to procedural aspects of criminal law. Civil proceedings also fall outside of the scope of this right. An exception to the prohibition of retroactive criminal law is that a person may be prosecuted before national courts for international crimes such as acts of torture, crimes against humanity etc despite the fact that national law did not provide for such an offence at the time of commission.
The prohibition on retroactive criminal law prohibits the imposition of a heavier penalty than what was provided for at the time the crime was committed.
Comprehensive:
Article 15(1) of the ICCPR provides, inter alia:
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 when the criminal offence was committed.
This provision prohibits retroactive criminal law and punishment otherwise not based on law. Similar provisions are included in regional human rights instruments.[1] The principle is also known as nullum crimen sine lege. (See also *prosecution for an act or omission which does not constitute a criminal offence*).
Violations of the prohibition on retroactive criminal law occur where laws are applied in retrospect. In Weinberger v Uruguay, a journalist was prosecuted for membership in the communist party which had been legal when he joined it. The HRC found that the law prohibiting membership of the party had been applied retroactively.[2] The application of retroactive military decrees in Nigeria was held by the ACHPR to violate the prohibition on retroactive criminal law.[3]
The prohibition on retroactive criminal law only applies to substantive criminal law. In Nicholas v Australia, the HRC held that a change in the rules of procedure allowing admissibility of evidence that was inadmissible at the time of the commission of the offence did not violate the nullum crimen sine lege rule as long as the elements of the crime itself remained the same.[4] Civil proceedings fall outside of the scope of this right. In Strik v Netherlands, a municipal employee brought a complaint alleging violation of article 15(1) of the ICCPR during disciplinary hearings of a labour nature. The HRC held that 'disciplinary measures' fell out of the scope of the Covenant since article 14 and 15 'relate to criminal offences'.[5]
There is no violation of article 15(1) of the ICCPR where the act in question was not prohibited at the time in terms of national law, but was a criminal offence under international law or law of nations.[6] In other words a person may be prosecuted before national courts for acts of torture, crimes against humanity, war crimes, etc. despite the fact that national law did not provide for such an offence at the time of commission.
The prohibition on retroactive criminal law prohibits the imposition of a heavier penalty than what was provided for at the time the crime was committed.[7] (See *right to benefit from a lower penalty*).
In Fardon v Australia, a case dealing with preventative detention, the HRC held:[8]
since the DPSOA was enacted in 2003 shortly before the expiry of the author’s sentence for an offence for which he had been convicted in 1989 and which became an essential element in the Court orders for his continued incarceration, the DPSOA was being retroactively applied to the author. This also falls within the prohibition of Article 15 paragraph 1 of the Covenant, in that he has been subjected to a heavier penalty “than was applicable at the time when the criminal offence was committed”.
In Welch v UK, the ECtHR held that a confiscation order based on a law that entered into force after the commission of the offence violated the prohibition on retroactive law.[9]
In Filipovich v Lithuania, the introduction of new latitude of sentences for murder of between 5-12 years from one of between 3-12 years was found not to violate the complainant's rights. The complainant had been sentenced to six years and the HRC held that this sentence was well within the latitude provided by the earlier law.[10]
The HRC held in ARS v Canada that mandatory supervision of a person who is released after having served a custodial sentence does not constitute a penalty for the purposes of article 15.[11]
[1] See also ACHPR art 7(2), ACHR art 9, ECHR art 7.
[2] Weinberger v Uruguay communication 28/1978 (HRC 1980) para 16.
[3] Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria communication 101/93 (ACHPR 1995). See also Media Rights Agenda and Others v Nigeria (ACHPR 1998) para 59.
[4] Nicholas v Australia communication 1080/2002 (HRC 2004) para 7.7.
[5] Strik v the Netherlands communication 1001/2001 (HRC 2002) para 7.3.
[6] Article 15(2) of the ICCPR.
[7] See eg Gómez Casafranca v Peru, communication 981/2001 (HRC 2003) para 7.4.
[8] Communication 1629/2007 (HRC 2010) para 7.4. See also Tillman v Australia communication 1635/2007 (HRC 2010) para 7.4.
[9] Welch v UK application 17440/90 (ECtHR 1995) para 35.
[10] Filipovich v Lithuania communication 875/1999 (HRC 2001) para 7.2. See also Marz v Russia communication 1425/05 (HRC 2009) where the complainant unsuccessfully argued that commutation of the death penalty to life imprisonment constituted heavier penalty. (Para 6.6).
[11] ARS v Canada communication 91/1981 (HRC 1984) para 5.3.