Principle of legality in criminal law

In criminal Law, the principle of legality of the offenses and sorrows lays out that one can be condemned penally only under the terms of one precise and clear penal text (in Latin, light Nullum crimen nulla pœna sine ). This principle was in particular developed by the Italian penalist Cesare Beccaria at the 18th century.

One generally associates with it the principles of the non-retroactivity of the more severe criminal law and the retroactivity of the softer criminal law.

History and contents of the principle

Historical origin

The principle of legality is applied probably since key period old. It however was identified and conceptualized only with the Age of Enlightenment; it is generally allotted to Cesare Beccaria.

It acquires a legal existence with the French revolution.

The principle of legality is initially included/understood like a guarantee against the arbitrary one of the judicial power: “God keeps us equity of the Parliaments” (given that at the time, the Parliaments were jurisdictional bodies).

The principle of legality gives the capacity of definition of the infringements and the sorrows to the Parliament. This attribution corresponds to the faith parlementarist of the revolutionists: the Parliament, expressing the general will, cannot badly make; it is with him that must be entrusted the safeguard of freedoms.

This vision differs much from the approach Anglo-Saxon, and more particularly North-American, in which the judge is perceived like the guard of the citizens against the official capacity and his tyrannical drifts.

Evolution of the principle: formal legality with material legality

The formal definition - the competence of the Parliament

The first definition of legality is thus a formal definition: the criminal law must emanate from the Parliament.

This principle can be called principle of textuality since the Constitution of 1958 allocate a penal responsibility to the executive power.

The principle of formal legality prohibited of course to the judge to invent an infringement or to extend the field of application from it: cf Crim., June 3rd, 2004 which breaks the stop applying the social abuse good, concerning only the leaders of certain companies, with the leader of a foreign company.

This principle of formal legality prohibited the legislator from returning to the lawful capacity the definition of an infringement or a sorrow.

Thus in its decision on the law RESEDA in 1998 the Constitutional council censured the provision which provided that for assistance with the stay of foreigners in irregular situation humanitarian associations could not be continued being reproduced on a list drawn up by the Minister of Interior Department. Indeed, this provision made depend the application on the criminal law of a decision of the Executive power.

This provision was however not liberticide, on the contrary. The result of this censure was the absence of penal immunity for associations.

In its decision on the law “Perben II” the Council has, by a reserve of interpretation, excludes humanitarian associations from assistance the abroads of the field of application of the offense of organized band.

The principle of formal legality could not be included in the European Convention of the Human rights: it is incompatible with the systems of Common law. This is why article 7 of Convention poses a principle of “juridicity”: the infringement must be envisaged by the criminal law into force to the moment of the facts.

The material definition - foreseeability

It is not so much the existence of the law which interests the European Cour of the Human rights, that the legal security of the justiciable one. The criminal law must be accessible and foreseeable, as already Portalis at the beginning of the XIXe century underlined it: “The legislator should not strike without informing: if it were different, the law, against its essential object, would thus not propose to make the men better, but only to make them more unhappy. ”

These “qualities” of the criminal law were released by the Court in its stop Sunday Times of 1979.

The Constitutional council took again the requirement of foreseeability, which imposes a certain precision of the criminal law, in its decision of January 18th 1985 (offense of embezzlement - for lack of definition of the embezzlement censures).

the foreseeability of the criminal law was specified in the stop Cantoni C France of 1996.

Mr. Cantoni was continued by the French state for illegal exercise of the activity of pharmacist. He prevails himself before the Court of the lack of clarity of the French definition of the drug, which would violate according to him article 7 of Convention EDH.

the European Court is shown then very flexible in its appreciation of the respect of penal foreseeability: the law is necessarily general and abstract, it thus comprises necessarily a certain inaccuracy. The concept of “right” of article 7 includes the right of origin as well legislative as Praetorian, and implies qualitative conditions, inter alia those of accessibility and foreseeability (§ 29). The range of the concept of foreseeability depends on the context and the recipients; the foreseeability of the law is not opposed so that the person concerned is brought to resort to councils lit to evaluate, with a reasonable degree in the circumstances of the cause, the consequences being able to result from a given act. It goes from there thus especially from the professionals (…).

One realizes that the European Court is not very demanding with regard to the foreseeability of the criminal law, which however seems to constitute a key element of the protection of the citizens against the arbitrary one of the state.

the integration of jurisprudence in the criteria determining the foreseeability of the penal standard was adopted by the Constitutional council in his decision of March 2nd, 2004 (“Perben II”): the Council considers that the concept of “organized band” is sufficiently precise to respect the principle of legality, insofar as it were defined by the jurisprudence passed with a high degree of accuracy.

This decision marks a big change of the French legal thought, because it could put an end to the dogma according to which the penal judge does nothing but apply the law, by recognizing its normative capacity officially: the Council seems well to integrate in the legal definition the elements released by the judges.

the Court of appeal, which respects European Convention, used the quality standards of the law, in particular to refuse to apply the offense of publications of the “circumstances” of certain crimes or offenses, following the publication of the photographs of the victims of the attack of the RER Saint-Michel (Crim. February 20th 2001). Indeed, the term “circumstances” is too vague so that the law is foreseeable.

The law of June 15th 2000 modified this incrimination, but did not specify the definition of the “circumstances”: the solution must remain valid.

The principle of legality, formal or material, would be nothing without its corollaries: the principle of strict interpretation and penal non-retroactivity . Indeed, where would be the legal security so laws, voted by the Parliament and very precise, came to govern situations former to their publication or were extended by the judges to cases which they do not aim?

Protection of the principle of legality out of penal matter

International protections

The principle of legality spread and was the subject of a certain recognition to the international level, with a more or less effective legal sanction.

United Nations

Convention of safeguard of the human rights

The Convention is the only convention of the human rights whose effectivity is juridically guaranteed by an autonomous jurisdiction, the European Cour of the human rights.

The article 7§1 of the Convention thus states the principle of penal matter legality:

No one cannot be condemned for an action or an omission which, at the time when it was made, did not constitute an infringement according to the national right or international|European convention of the human rights, article 7 al. 1

This stipulation rather refers to the “national right” than with the “national law” (in a formal and strict direction), to be in particular compatible with the systems of Common law .

With the difference of the international Pact relating to the civil laws and political , if the European Court of the human rights is qualified only if the national judge already expressed himself before, the Court can however have an autonomous interpreatation of the Convention , and in particular, determine what it retains as being a penal matter. This article will be thus applicable in any situation where the national right qualifies a matter of penal, but the European judge will be able itself to qualify a matter of penal within sight of the nature of the sanction, or of his gravity. Thus, in countries knowing a duality of the orders of jurisdictions, as in France, of the administrative authorities which would be entitled by the legislator to deliver administrative sanctions can see itself applying article 7.

However, Convention issues a reserve, being in particular the crimes against humanity.

This article will not carry not reached to the judgment and with the punishment of a guilty person of an action or an omission which, at the time when it was made, was criminal according to the general principles of right recognized by the civilized nations.

Indeed, at the time when they were made, such crimes were not prohibited by a penal text. The need for repressing the authors of such crimes was thus done in the name of the respect of the “general principles of right recognized by the civilized nations”. It is thus about a temperament brought to the principle of legality posed by the Convention .

National protection

Beside an international dedication, the various national legislations had to recognize the principle of legality of the offenses and the sorrows.

Constitutional statute

The principle of legality can have a constitutional value.

Germany

In Germany, the article 103, al. 2 of the Fundamental law lays out

An act is not liable to a sorrow that if it were punishable according to the law in force before it was made.

The United States

With the the United States, Ve amendment with the Constitution of 1797 poses the concept of due process (a procedure is required):

No one will not be able, in a criminal case, being obliged to testify against itself, nor to be private of its life, its freedom or its goods without regular legal procedure

The prohibition of the retroactive criminal laws is carried out in article I, section 10, subparagraph 1.

France

In France, article 8 of the Declaration of the Human rights and the Citizen, recognized in the preamble with the Constitution of 1958 (and raised with the constitutional value by the decision '' Right of association '' of the French Constitutional council in 1971) lays out:

No one can be punished only under the terms of one law established and promulgated before with the offense, and legally applied

The Constitutional council specifies that it results from these provisions the obligation for the legislator to define the infringements in sufficiently clear and precise terms to exclude the arbitrary one.

However, in French right, only the Crime and the Délit are obligatorily defined by the law, the text of incrimination or of penalty of an infringment can on the other hand be defined out of lawful matter. The French Constitutional council has however: the lawful capacity thus has only the capacity to penalize a behavior reprehensible, and to determine the applicable sanction, but does not have autonomous competence to create a new sanction.

First corollary of legality: strict interpretation of the penal standard

Article 111-4 of the Penal code: “The criminal law is of strict interpretation”

strict interpretation can be defined as “Only the criminal law, but all the criminal law”.

The principle of strict interpretation is opposed to analogical interpretation , which consists in extending a legal provision of a situation envisaged by it to a close situation.

This principle is also opposed to restrictive interpretation , which would make escape the criminal law from the cases envisaged by the legislator.

The prohibition of these two modes of interpretation is not comparable: analogical interpretation openly violates the foreseeability of the criminal law and the legal security. Restrictive interpretation opposes only the separation of the capacities, in a direction favorable to the interests of the continued person.

However, like pointed out the European Court in stop CANTONI, a law is necessarily vague and its exact contents must be given by the judge. The penal judge thus has a to be able of interpretation , but this interpretation must be strict, i.e. to stick with the text and the consequences that a fairly informed person can deduce some, without what he violates the principle of foreseeability.

the determination of extended from the capacity of interpretation of the judge is delicate.

It is for example allowed that, vis-a-vis a clear and precise text, the judge is bound by the letter of the text; and that it can refer to the will of the legislator when the text misses precision.

A famous decree of 1917 prohibited to the travellers “to get out of the trains elsewhere than in the stations and when the train is completely stopped” , which, literally, obliged the travellers to jump of the train moving. By stop of March 8th, 1930, the Court of appeal approved the judgment of a traveller who was gotten out of a train moving, considering that it was necessary to give again with the text his obvious direction. It is about an interpretation teleological, strict, of a text however clear and precise.

Strict interpretation imposed the creation of the offense of filoutery, which consists in being made serve a service (food, fuel) by intending not to regulate it. Indeed, the subtraction is not fraudulent since it gave there voluntary of the thing by the owner, and there are no operations constitutive of swindle. It also imposed the creation of the abuse of corporate asset, after the scandal “Stavisky” which, in years 20-30 showed the limits of the incrimination of breach of trust.

the limitation of the capacity of interpretation of the judge poses problem vis-a-vis technological advances , of the situations not envisaged by the legislator whom can appear.

The question thus arose of knowing if the fraudulent subtraction of electricity were a flight within the meaning of the Penal code, i.e. the fraudulent subtraction of the thing of others . By stop dated August 3rd, 1912 (distributed), the Court of appeal considered that electricity is well a likely thing of apprehension and consequently being able to be the subject of a vol. This interpretation was very contestable insofar as electricity does not have any materiality and that it is allowed that the flight can relate to only body pieces of furniture. The Court of appeal was contradicted in its analysis by the new Penal code, 80 years later, which added after article 311-1 on the flight, article 311-2 which states that the fraudulent subtraction of energy is comparable with the vol. What means well that it is not one.

the question of the flight of information renewed this debate with the development of data processing. The Court of appeal handed down a judgment of principle on January 8th, 1979 in a business of flight per photocopy (stop known as LogAbax, distributed). In this business, an employee was continued for flight of the documents belonging to his employer, to which it normally had access within the framework of his employment. He had simply carried out photocopies of the documents, without carrying the originals. The Court considers that at the time when the employee photocopies the documents, against the interest of his employer, it behaves like the owner of these documents, and that there is thus legal subtraction (in the absence of material subtraction).

The solution was applied to the copy of documents present to a diskette.

The flight of information is apprehended by the means of the subtraction known information carrier, all the more contestable legal artifice as the facts actually correspond to the infringement of breach of trust.

The court of criminal appeal still was done noticed by a very contestable interpretation of the incrimination of rape on December 16th, 1997: article 222-23 accuses like rape “any act of sexual penetration made on the person of others by violence (…) ” . Undoubtedly in a preoccupation with an equality of the sexes, the Court considered in this stop that the incrimination of rape could be retained since a sexual penetration was imposed, that it is about the penetration of the victim by the attacker where reverse. This interpretation, obviously contrary in article 222-23 which aims at the penetration of others, was abandoned since 1998.

A resounding application of the principle of strict interpretation was made on June 30th, 1999 by the Court of appeal, refusing to apply the infringement of manslaughter to the child to be born. The former jurisprudence of the courts dealing with the substance of a case was contradictory but seemed to release a criterion, namely the viability of the fetus. This jurisprudence was confirmed by the plenary assembly of the Court of appeal which, on June 29th, 2001, specified that “the protection of the child to be born changing from particular texts on the embryo or the fetus” . Jurisprudence applied, a contrario, on December 2nd, 2003, by the judgment of the author of the homicide when the child lived one hour after his birth.

An incongruity is to be raised: the judgments refusing the judgment of the author of the involuntary interruption of pregnancy were handed down by cassation without reference; a last stop, of May 4th, 2004, poses as for him the principle according to which “the child not having incipient alive, the facts are not likely of any penal qualification” - what appears strange, insofar as, if the child is not regarded as a person protected by the Penal code, the mother were victim of an involuntary infringement of violence. This will to cross short to any debate, to the risk to violate the rights of the mother, would indicate that these decisions are more political than legal.

It is not sure that strict interpretation has something to see with these decisions.

N.B. : CourEDH July 8th, 2004: the brutal interruption of the pregnancy of the applicant does not enter the field of article 2 (right to the life), the Court refusing to answer in the abstract the question of knowing if the child to be born is a “person” within the meaning of article 2, and the applicant one not being private of any recourse (criminal prosecutions for involuntary injuries on the person of the mother, administrative recourse…).

Of course, principle of the strict, corollary interpretation of the principle of legality, has the aim of protecting the individual against the arbitrary one and the unforeseeable one: it does not apply to interpretations favorable to the people put in examination.

Second corollary of the principle of legality: application of the criminal law in time

The general rules of coming into effect of the laws appear in the article 1st of the Civil code: until June 1st, 2004, this article laid out:

“the promulgation made by the King will be considered known in the department of the royal residence one day after that of the promulgation; and in each one of the other department, after the expiry of the same time, increased by as many days as there will be times 10 Myriamètre S (approximately 20 miles old) between the city where the promulgation will have been made by it, and the place chief of each department”.

This rule was opposed by a decree of the Government of national defense in Paris, dated November 5th, 1870, which provided that the laws become obligatory in Paris one clear day after promulgation, and everywhere else a clear day after OJ arrived at the place chief of the district.

Since June 1st, 2004, the rules on the electronic publication of the laws modified the article 1st Civil code :

except contrary special provision, the law between in force the shortly after its publication to OJ.

The date of coming into effect being established, raises the question, in criminal law, to know which facts can be governed by the new law.

Nonthe Retroactivity of the more severe criminal law

In civil law, one considers that the contractual situations are controls by the law in force the day of the contract signature .

While in criminal matter one applies the law in force to the day of the lawsuit , it is le' principle of application immédiate' , which borders with retroactivity.

the refusal of any retroactivity in criminal law is a fundamental requirement of the liberal systems.

This non-retroactivity appears in good place in the Déclaration of the Human rights,

article 8: “no one can be punished only under the terms of one law established and promulgated before with the offense”.

It is taken again by Portalis: “the law which is used as title with the charge must be former to the action for which one shows” .

The Court of appeal on the occasion to apply this principle under very contestable conditions on June 17th, 2003: the qualification of “Crime against humanity” not existing at the time of the facts, the crimes of torture made during the Guerre of Algeria profit from the amnesty of July 31st, 1968.

This application is contestable because the assumption of the crime against humanity is precisely aimed by European Convention like one of the exceptions to the principle of non-retroactivity ; and because the rules in particular of imprescriptibility which are attached there precisely aim to the continuation of the last facts.

In the future, it is probable that such crimes will be denounced within ten year making this imprescriptibility useless. The Court of appeal besides had admitted the retroactivity of the imprescriptibility of these crimes in the judged business Klaus Barbie on January 26th, 1984.

the rule of non-retroactivity is worth only for the criminal law “basic” (criminal law general or special), and not for the procedure.

Indeed, the basic criminal law fixes the limits of individual freedom; it is thus essential that each citizen can, constantly, to know the limits of its freedom without being surprised thereafter in its forecasts by a retroactive law. On the contrary, there does not exist right to a procedure, and the state is in theory free to fix the operating rules of the legal system.

the principle of penal non-retroactivity, rising from the principle of legality, has vocation to apply to all the new laws. It is however imperative only for the unfavourable laws with the defendant, as one already explained in connection with strict interpretation.

Moreover, a competitor principle applies to the softer criminal laws: the principle of retroactivity in mitius, corollary of the principle of need for the offenses and the sorrows.

The retroactivity of the softer new laws or retroactivity in mitius

the principle of need appears in article 8 of the Declaration of the Human rights:

“the law should establish only sorrows strictly and obviously necessary”

The Constitutional council exerts in this matter a control limited to the glaring error of appreciation. He thus censured on September 3rd, 1986 the law which compared the assistance to the stay of foreigners in irregular situation to acts of Terrorisme.

the principle of need imposes the retroactive application of the softer laws . How indeed to claim that it is necessary to apply a sorrow to such act whereas this act is not regarded any more today as disturbing the social order?

In theory this retroactivity involves the immediate application of the new law with the infringements not yet definitively judged. This application can even be a reason for cancellation for the Court of appeal.

For example: Crim. January 6th, 2004 applies the law of November 26th, 2003 which prohibits to pronounce the sorrow of prohibition of the French territory the abroads coming to France for medical reasons.

With regard to the definitively judged infringements, in theory the intervention of a new softer law is not a reason for revision of the lawsuit.

However, article 112-4 of the Penal code lays down that in the event of disappearance of the incrimination, the sorrow ceases receiving execution (without the principle of the judgment disappearing) . This article 112-4 is still an application of the principle of need for the sorrows. One can wonder whether this mechanism should not also apply in the event of reduction in the legal maximum: doesn't the person condemned to a sorrow higher to the new maximum purge a sorrow nonnecessary?

Exceptions

Exceptions to the principle of nonretroactivity

Exceptions to the principle of non-retroactivity of the criminal law are allowed, in an extremely contestable way, by the Court of appeal.

It acts, first of all, of the expressly retroactive laws. Comment a legal tendency can oppose a constitutional and conventional standard? The validity of the expressly retroactive laws is however accepted by the Court of appeal, except if it is about an interference in a lawsuit in progress, constitutive of a rupture of the equality of the weapons and of a violation of the Séparation of the capacities.

It also acts of the interpretative laws . The legal reasoning wants that, the interpretative law not coming to modify the right, it is incorporated in the interpreted law and like it applies (ex: Crim. January 23rd, 1989). How could a vague law, since it requires a legislative interpretation, contrary in article 7 of Convention EDH, apply because of a choice of the legislator? It is still an obvious violation of the hierarchy of the standards.

the statute of the reversals of jurisprudence is ambiguous

In internal rights, it seems that the reversals are retroactive

This formula is suitable for two interpretations:

*soit the Court denies the existence of reversals, describing them as “simple interpretation jurisprudential” to conform to the dogma of criminal legality;

*soit the Court introduces a distinction between simple interpretation, retroactive, and the true reversal, which one supposes nonretroactive.

This second analysis makes it possible to reconcile the French position with the European right: Court EDH indeed admitted the retroactivity of a reversal since this reversal is foreseeable (S.W C R.U., November 22nd, 1995) : it was acted as the species of the judgment of a husband for the rape of his wife. One always returns from there to the material criterion of foreseeability of the criminal law, which takes precedence over the formal considerations.

There exist also exceptions to the principle of retroactivity in mitius.

Exceptions to the principle of retroactivity of the softer law

The Court also could admit that a softer criminal law envisages an exemption from its retroactive application.

By stop of April 7th, 2004, the Court of appeal still refused the retroactive application of a less severe standard to the reason than it was not the penal text which had been modified, but the Code des Marches Publics. The continued facts were not however likely any more of penal sanction if they had been made at the time where the judge ruled.

Difficulties of qualification

The retroactivity or not of the penal standard will depend, one included/understood it, of its more severe or softer nature with respect to the offender. It happens however that laws are at the same time more severe and softer, for example while decreasing maximum by the sorrow and while adding complementary sorrows; or by decreasing the field of application of a text and by worsening the incurred sorrow.

the first question which arises then for the judge is the divisible character of the provisions in question.

If the law is divisible, only the softer provisions will be applied retroactively.
If it is not it, the judge will be able to attempt to determine the general economy of the reform, or the principal provision which will determine the mode of the unit.
the judge can also attempt to appreciate the more severe or softer character, not in abstracto, by the study of the text, but in concreto, for the person concerned in the species.

If the situation of the person is not modified by the reform , the new text will in general be applied to him (no matter what the principle would like the reverse).

For example, in the old Penal code, all the voluntary manslaughters were punished prison with perpetuity; in the new code, the murder is punished 30 years of prison, and only a cause of aggravation makes incur the life imprisonment. Criminals thus tried to prevail themselves of the inexistence of aggravating circumstances at the time of their gesture to profit from the softer new law on the murder and to escape the aggravating circumstances new. The reasoning was rejected by the Court of appeal with the reason that before as after the coming into effect of the law, the author would incur the prison with perpetuity.

the application of these principles can have a paradoxical effect. Such as for example on November 10th, 1998, where an aggravation of sorrow decided by the legislator led to a less sorrow for the defendant.

He agssait himself of rape worsened in repetition:

the old Penal code punished this infringement of a sorrow from 20 to 40 years of prison.

the new Code punishes this crime of the prison with perpetuity, the sorrow at maximum time being 30 years. The new law being more severe, it is the old one which applies to the facts made before 1994 and judged afterwards.

the Court of Assizes had thus condemned the criminal to a 35 years of prison sorrow. This judgment had taken place in the majority simple; a majority of 8 votes being necessary to the application of the maximum sentence.

the Court of appeal breaks this decision case, with regard to the sorrows “in time”, the new law is less severe, since it envisages a 30 years maximum. The maximum applicable to this infringement is thus 30 years, that is to say less than the old one and than the new maximum.

Moreover, the sorrow not having been voted in the majority qualified, the Court of appeal substitutes a 20 years of prison to him sorrow. Indeed, the Code provides that when the maximum is 30 years, if this one is not pronounced in the majority of 8 votes, the maximum applicable in the majority simple is 20 years of prison.

the sorrow applied corresponds finally to the old minimum.

Control legality of the lawful penal standards

Always pursuant to the principle of legality (with the formal direction this time), the penal judge saw himself recognizing the right to control, by way of exception, the legality of the lawful acts when the solution of the criminal trial depends on it.

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