Ex post facto law: Difference between revisions

{{Short description|Law with retroactive effect}}

{{DISPLAYTITLE:''Ex post facto'' law}}

{{More citations needed|date=January 2021}}

 

Conversely, a form of ''ex post facto'' law commonly called an [[amnesty law]] may decriminalize certain acts. (Alternatively, rather than redefining the relevant acts as non-criminal, it may simply prohibit prosecution; or it may enact that there is to be no punishment, but leave the underlying conviction technically unaltered.) A [[pardon]] has a similar effect, in a specific case instead of a class of cases (though a pardon more often leaves the conviction itself – the finding of guilt – unaltered, and occasionally pardons are refused for this reason). Other legal changes may alleviate possible punishments (for example by replacing the death sentence with lifelong imprisonment) retroactively. Such legal changes are also known by the Latin term '''''in mitius'''''.{{citation needed|date=January 2021}}

 

 

''Ex post facto'' criminalization is prohibited by [[Article 7 of the European Convention on Human Rights]], Article 15(1) of the [[International Covenant on Civil and Political Rights]],<ref>{{cite journal |title=Ratnapala, Suri --- "Reason and Reach of the Objection to Ex Post Facto Law" [2007] UQLRS 1; (2007) 1 (1) The Indian Journal of Constitutional Law, 140-168 |journal=Classic.austlii.edu.au |url=http://classic.austlii.edu.au/au/journals/UQLRS/2007/1.html}}</ref> and [[Article 9 of the American Convention on Human Rights]].<ref>{{cite web |title=Article 9 Freedom from Ex Post Facto Laws {{!}} IACHR |url=https://iachr.lls.edu/violations-inter-american-convention-human-rights/article-9-freedom-ex-post-facto-laws |website=iachr.lls.edu |access-date=8 November 2020}}</ref> While American jurisdictions generally prohibit ''ex post facto'' laws, European countries apply the principle of '''''lex mitior''''' ("the milder law"). It provides that, if the law has changed after an offense was committed, the version of the law that applies is the one that is more advantageous for the accused. This means that ''ex post facto'' laws apply in European jurisdictions to the extent that they are the milder law.<ref>{{cite news |last1=Westen |first1=Peter |work=New Criminal Law Review: An International and Interdisciplinary Journal |title=Lex Mitior: Converse of ex post facto and window into criminal desert |date=May 2015 |pages=167–213 |doi=10.1525/nclr.2015.18.2.167}}</ref>

 

Retrospective laws designed to prosecute what was perceived to have been a blatantly unethical means of [[tax avoidance]] were passed in the early 1980s by the [[Fraser Government|Fraser government]] (see [[Bottom of the harbour tax avoidance]]). Similarly, legislation [[criminalization|criminalising]] certain war crimes retrospectively has been held to be constitutional (see ''[[Polyukhovich v Commonwealth]]'').

 

Australia participated in drafting the [[Universal Declaration of Human Rights]] and was an original signatory in 1948.<ref>{{cite web|title=Australia and the Universal Declaration on Human Rights|url=https://humanrights.gov.au/our-work/publications/australia-and-universal-declaration-human-rights|url-status=live|archive-url=https://web.archive.org/web/20201112022053/https://humanrights.gov.au/our-work/publications/australia-and-universal-declaration-human-rights|archive-date=12 November 2020|access-date=18 November 2020|website=[[Australian Human Rights Commission]]|language=en|quote=Australia was also one of eight nations involved in drafting the Universal Declaration.}}</ref><ref>{{cite web|title=Our commitment to human rights|url=https://www.dfat.gov.au/international-relations/themes/human-rights/Pages/human-rights|url-status=live|archive-url=https://web.archive.org/web/20201119005656/https://www.dfat.gov.au/international-relations/themes/human-rights/Pages/human-rights|archive-date=19 November 2020|access-date=19 November 2020|website=[[Department of Foreign Affairs and Trade|Australian Government Department of Foreign Affairs and Trade]]|language=en|quote=Australia's commitment to human rights is enduring: we were an original signatory to the Universal Declaration of Human Rights in 1948.}}</ref> The Declaration includes a prohibition on retrospectively holding anyone guilty of a [[Crime|penal offence]] that was not an offence at the time it was committed.<ref>{{cite web|title=Universal Declaration of Human Rights at 70: 30 Articles on 30 Articles - Article 11|url=https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23903|url-status=live|archive-url=https://archive.today/20201119004524/https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23903|archive-date=19 November 2020|access-date=18 November 2020|website=[[Office of the United Nations High Commissioner for Human Rights]]|language=en-US|quote=The second paragraph of Article 11 is a ban on retroactive laws...Paragraph 2 says: "No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed."}}</ref> The [[Australian Human Rights Commission]] states the Declaration is an "expression of the fundamental values which are shared by all members of the international community" but "does not directly create legal obligations for countries."<ref>{{cite web|title=What is the Universal Declaration of Human Rights?|url=https://humanrights.gov.au/our-work/what-universal-declaration-human-rights|url-status=live|archive-url=https://web.archive.org/web/20201119013424/https://humanrights.gov.au/our-work/what-universal-declaration-human-rights|archive-date=19 November 2020|access-date=19 November 2020|website=[[Australian Human Rights Commission]]|language=en|quote=The Universal Declaration is not a treaty, so it does not directly create legal obligations for countries...it is an expression of the fundamental values which are shared by all members of the international community.}}</ref>

 

===Canada===

 

The Canada [[sex offender registry]], which went into effect on December 15, 2004, is somewhat retroactive. When the registry was created, all offenders who were on the [[Ontario]] sex offender registry, which was created in 2001, were required to register on the national registry. In addition, sex offenders in all provinces who were serving a sentence (whether imprisoned or on probation or parole) on December 15, 2004, were required to register, regardless of when their offense and conviction occurred. However, the registry was not retroactive to anybody who had completed their sentence by late 2004 and was not on the Ontario registry.<ref name="macleans.ca">{{cite web |url=https://www.macleans.ca/news/canada/a-national-embarrassment/ |title=There's a problem with Canada's sex offender registry - Macleans.ca |website=macleans.ca}}</ref> Canadian courts have never ruled on the somewhat retroactive nature of the sex offender registry, since this seems to have never been challenged.

{{main|Danish collaborator trials}}

Following the [[liberation of Denmark]] from [[Denmark in World War II|Nazi occupation]] in 1945, the [[Folketing]], heavily influenced by the [[Frihedsrådet|Frihedsråd]], passed a [[special law]] (Lov Nr. 259 af 1. Juni 1945 om Tillæg til Borgerlig Straffelov angaaende Forræderi og anden landsskadelig Virksomhed, colloquially ''landsforræderloven'' (the traitor law) or ''strafferetstillægget'' (the penal code addendum)), temporarily reintroducing the [[death penalty]] (previously abolished in 1930) for acts of treason committed during German occupation. Passed on 1 June 1945, the law applied to actions performed subsequent to 9 April 1940, unless those actions were done under orders from the government prior to 29 August 1943. With this authorization, 103 death sentences were issued, of which 46 were carried out.<ref>{{cite web|url=https://danmarkshistorien.dk/leksikon-og-kilder/vis/materiale/retsopgoerets-love-straffelovstillaegget-1945-til-1946/|title=Retsopgørets love - straffelovstillægget 1945 til 1946|access-date=16 August 2021|date=25 August 2011}}</ref>

 

===Finland===

 

===France===

 

However, in criminal law, ''ex post facto'' sanctions are effectively forbidden as per Article 112-1 of the [[French Penal Code]], except in cases wherein the retroactive application benefits the accused person (called retroactivity ''in mitius'').<ref name = Soyer>{{cite book |last=Soyer |first=Jean-Claude |title=Droit pénal et procédure pénale |publisher=L.G.D.G. |series=Lextenso Editions |edition=21 |date=2012 |location=Paris |pages=75–78 |language=fr}}</ref> They are also considered unconstitutional, since the principle of non-retroactivity is laid down in Article 8 of the [[Declaration of the Rights of Man and of the Citizen]], which has constitutional status under French law.<ref name="Terré">{{cite book |last=Terré |first=François |title=Introduction générale au droit |publisher=Dalloz |series=Précis |edition=8 |date=2001 |location=Paris |pages=204–5 |language=fr}}</ref> The ''[[épuration légale]]'' trials held after the 1944 [[liberation of France]] introduced the status of ''[[indignité nationale]]'' for [[Collaboration with Nazi Germany and Fascist Italy|Nazi collaborators]] as a way to avoid ''ex post facto'' law.

Article 103 of the [[Basic Law for the Federal Republic of Germany|German basic law]] requires that an act may be punished only if it has already been punishable by law at the time it was committed (specifically: by ''written'' law, [[Germany]] following civil law).

 

 

[[William O. Douglas]] complained that the Allies were guilty of "substituting power for principle" at Nuremberg Trials because the actions of the defendants were lawful in the 1930s Germany. He contended that the Nuremberg Trials were implementing laws after the fact (that is, ex post facto) "to suit the clamor of the time." American Chief Justice [[Harlan Stone]], likewise, called the Nuremberg Trials a "fraud" because of the ex post facto laws.<ref>{{cite web |last1=Linder |first1=Douglas |title=The Nuremberg Trials: An Account |url=https://famous-trials.com/nuremberg/1901-home |website=Famous Trials}}</ref>

 

 

===Hungary===

Further, what article 20(1) prohibits is conviction and sentence under an ''ex post facto'' law for acts done prior thereto, but not the enactment or validity of such a law. There is, thus, a difference between the Indian and the American positions on this point; whereas in the United States, an ''ex post facto'' law is in itself invalid, it is not so in India. The courts may also interpret a law in such a manner that any objection against it of retrospective operation may be removed.<ref>{{cite web|url=http://www.legalserviceindia.com/article/l60-Protection-against-ex-post-facto-laws.html|title=Protection against ex-post-facto laws|website=legalserviceindia.com}}</ref>

 

 

===Indonesia===

 

===Ireland===

 

===Israel===

[[Israel]] enacted the 1950 [[Nazis and Nazi Collaborators (Punishment) Law]] for the purpose of punishing acts that occurred during the [[Second World War]] and the [[The Holocaust|Holocaust]], when Israel did not exist as a state. The law was used to punish [[Adolf Eichmann]] and others.{{citation needed|date=November 2020}}

Lithuania has no constitutional prohibition on ''ex post facto'' laws. However, as a signatory of the [[European Convention on Human Rights]] and as a member of the European Union whose [[Charter of Fundamental Rights of the European Union|Charter of Fundamental Rights]] has the effect of law, any retroactive law could still be struck down. Retroactive criminal sanctions are prohibited by Article 2, Part 1 (Chapter 1) of the [[Criminal Code]] of the [[Republic of Lithuania]]. Retroactive administrative sanctions are prohibited by Article 8 of the Administrative Code of the Republic of Lithuania.

 

 

===Mexico===

 

===Netherlands===

===Pakistan===

Article 12 of the [[Constitution of Pakistan of 1962|Constitution of Pakistan]] prohibits any law to be given retroactive effect by stating:<ref>{{cite web|url=http://www.pakistani.org/pakistan/constitution/part2.ch1.html|title=Chapter 1: "Fundamental Rights" of Part II: "Fundamental Rights and Principles of Policy"|website=pakistani.org}}</ref>

 

===Philippines===

The 1987 [[Constitution of the Philippines]] categorically prohibits the passing of any ''ex post facto'' law. Article III ([[Bill of rights|Bill of Rights]]), Section 22 specifically states: "No ''ex post facto'' law or [[bill of attainder]] shall be enacted."

 

 

===Poland===

Article 9.3 of the [[Spanish Constitution]] guarantees the principle of non-retroactivity of punitive provisions that are not favorable to or restrictive of individual rights. Therefore, "ex post facto" criminal laws or any other retroactive punitive provisions are constitutionally prohibited.

 

 

===South Africa===

Some laws are still passed retrospectively: e.g., the Pakistan Act 1990 (by which the United Kingdom amended its legislation consequent to the [[Commonwealth of Nations]] having re-admitted Pakistan as a member) was one such law; despite being passed on 29 June 1990, section 2 subsection 3 states that "This Act shall be deemed to have come into force on 1st October 1989", nine months before it was enacted.<ref name=NA_PA1990 >{{cite web |url=http://www.legislation.gov.uk/ukpga/1990/14/section/2 |title=Pakistan Act 1990 |publisher=Government of the United Kingdom |access-date=17 September 2010}}</ref>

 

 

Another example of an ''ex post facto'' criminal law in the UK is the [[Criminal Justice Act 2003]]. This law allows people acquitted of murder and certain other serious offences to be retried if there is "new, compelling, reliable and substantial evidence" that the acquitted person really was guilty. This Act applies retroactively and can be used to re-prosecute people who were acquitted before it came into force in 2005, or even before it was passed in 2003. As a result, two of the defendants who were acquitted in the [[murder of Stephen Lawrence]] were allowed to be retried, even though this murder occurred in 1993 and the defendants had been acquitted in 1996. Many people have criticized the Criminal Justice Act because of its essential abolition of prohibition against both ex post facto and [[double jeopardy]] laws.<ref>{{cite web|url=https://www.telegraph.co.uk/news/uknews/crime/8982608/Stephen-Lawrence-murder-change-in-double-jeopardy-law-allowed-Gary-Dobson-prosecution.html |archive-url=https://ghostarchive.org/archive/20220112/https://www.telegraph.co.uk/news/uknews/crime/8982608/Stephen-Lawrence-murder-change-in-double-jeopardy-law-allowed-Gary-Dobson-prosecution.html |archive-date=2022-01-12 |url-access=subscription |url-status=live|title=Stephen Lawrence murder: change in double jeopardy law allowed Gary Dobson prosecution|first=Tom|last=Whitehead|date=3 January 2012|work=[[The Daily Telegraph]]}}{{cbignore}}</ref>

[[United States Congress|Congress]] is prohibited from passing ''ex post facto'' laws by clause 3 of [[Article One of the United States Constitution|Article I]], [[Article One of the United States Constitution#Section 9: Limits on Federal power|Section 9]] of the [[United States Constitution]]. The states are prohibited from passing ''ex post facto'' laws by clause 1 of [[Article One of the United States Constitution|Article I]], [[Article 1 Section 10|Section 10]]. This is one of the relatively few restrictions that the United States Constitution made to both the power of the federal and state governments before the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]]. Over the years, however, when deciding ''ex post facto'' cases, the [[Supreme Court of the United States|United States Supreme Court]] has referred repeatedly to its ruling in ''[[Calder v. Bull]]'', in which Justice [[Samuel Chase]] held that the prohibition applied only to criminal matters, not civil matters, and established four categories of unconstitutional ''ex post facto'' laws.<ref>''[[Calder v. Bull]]'', {{ussc|3|386|1798}}.</ref> The case dealt with the Article I, Section 10, prohibition on ''ex post facto'' laws, because it concerned a Connecticut state law.

 

 

 

In ''Starkey v. Oklahoma Department of Corrections'', the [[Oklahoma Supreme Court|Supreme Court of the State of Oklahoma]] found the Oklahoma Sex Offender Registration Act, or SORA, to be punitive in nature, if not in intent. While the law in question had been ruled as not being retroactive in nature, the Oklahoma Department of Corrections had been applying the new legislation retroactively. The court found that "the Department's retroactive application of the level assignment provisions of 57 O.S. Supp. 2007, 582.1 – 582.5, as amended, violates the ex post facto clause."<ref>''[https://law.justia.com/cases/oklahoma/supreme-court/2013/109556.html Starkey v. Oklahoma Department Of Corrections]'', 2013 OK 43 (2013); [http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=470336 OSCN Document]</ref>

# Legislative documents of People's Councils, People's Committees at all levels, local governments in special administrative-economic units are not retroactive.

 

 

==Treatment by international organizations and treaties==

[[Category:Constitutional law]]

[[Category:Criminal procedure]]

[[Category:Latin legal terminology]]

 

[[ja:法の不遡及]]