The Weakened Concept of the European Principle of Criminal Legality (Art

CHAPTER SEVENTEEN

THE WEAKENED CONCEPT OF THE EUROPEAN PRINCIPLE OF CRIMINAL LEGALITY (ART. 7 ECHR AND P7-4)

Susana Huerta Tocildo Criminal Law Professor Complutense University

Summary: 1. Criminal Legality under Art. 7 of the Convention. — 2. Essential Content of the Traditional Notion of Criminal Legality. — 3. No Absolute Requirement for a Pre-existing Penal Law under Art.7 of the Convention: Replaced by Forseeability. — 4. Exceptions to the Principle of Non-retroactivity of Unfavourable Criminal Laws. — 5. No Adoption by the Convention of the Principle of Retroactivity of the Most Favourable Criminal Law. — 6. Prohibition on Analogy and Specifi city Requirement. 7. Role Attributed to Case Law under Art. 7 of the Convention. — 8. Guidelines for Determining the Concept of Penalty. 9. Principle of Legality and Prescription. — 10. Non Bis in Idem as Recognised under P7-4. — 11. Conclusions. — Annexe: Selected Case Law.

1. Criminal Legality under Art. 7 of the Convention

Article 7 of the Convention establishes that no one shall be held guilty of any criminal off ences on account of any act or omission which did not constitute a criminal off ence under national or international law at the time when it was committed. Nor may any heavier penalty be imposed than the one that was applicable at the time the criminal off ence was committed. Section two state that the art. shall not preju- dice the trial and punishment of any person for any act or omission which at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.1

1 Under the title “Principles of legality and proportionality of criminal off ences and penalties” Art.49 of the European Charter of Fundamental Rights reproduces the same content in the fi rst two sections, with the addition of the principle of retroactivity of the more favourable law; it also includes a third section, not contemplated in the 316 susana huerta tocildo

A simple reading of this article points to an initial, important con- clusion in relation to the notion of criminal legality as the Convention clearly does not hesitate to embrace custom, case law and the general principles of law recognised by civilised nations2 as sources for crime and punishment. Having noted this important diff erence, below I attempt to determine if the diff erent understanding of the guaran- tees which traditionally have been considered as part of the essential content of the principle of legality has signifi cant consequences the accomplishment of its important function of securing liberty and legal certainty through a double guarantee of a material and formal nature.

2. The Essential Content of the Traditional Notion of Criminal Legality

It must be remembered that this twofold function of guarantee has been attributed to the principle of criminal legality since its origins during the Enlightenment.3 Its main task then and now is to provide an external limit on the monopolistic exercise of the State’s right to punish or more specifi cally, to prevent executive and judicial powers from freely shaping indictable and summary off ences, regulatory off ences, aggravating circumstances and penalties, sanctions and secu- rity measures.4

European Convention, incorporating the principle of proportionality between the off ence and the penalty. Finally, Articles 22 to 24 of the Rome Statute of the International Criminal Court refl ect some of the demands of the principle of legality, prohibiting disadvantageous interpretation and the retroactivity of harsher penalties and admit- ting the retroactivity of more favourable laws. 2 For more in-depth treatment of the meaning of “general principles of law recognised by civilised nations”, see: P. Van Dijk/G.J.H. Van Hoof, Th eory and practice of the European Convention on Human Rights, 2nd ed., Kluwer, Deventer-Boston, 1990, pp. 365–367. 3 See G.Rodriguez Mourullo, “Principio de legalidad” in Nueva Enciclopedia Jurídica, Volume XIV, 197, pp.882 et seq.; F. Madrid Conesa, La legalidad del delito, Valencia, 1983, pp 17 et seq.; S. Huerta Tocildo, “El derecho fundamental a la legalidad penal”, in Revista Española de Derecho Constitucional, no.39, 1993, pp. 83 et seq.; A.Ruiz Robledo, El derecho fundamental a la legalidad punitiva, Tirant lo Blanch, Valencia, 2003, pp.48 et seq. 4 See: S.Mir Puig, Función de la pena en el Estado social y democrático de Derecho, Barcelona 1979, pp.21 et seq.; S. Huerta Tocildo, “El principio de la legalidad” in Actas de las V Jornadas de la Asociación de Letrados del Tribunal Constitucional, Centro de Estudios políticos y Constitucionales, Madrid 2000, pp.14 et seq.