LLB - Principles of Criminal Law
LLB - Principles of Criminal Law
LLB - Principles of Criminal Law
Cje
Lecture 6 & 7
Principles of Criminal Law and Criminal
Liability
Principle
no counter-productive criminalisation
(social costs should be analysed)
Lecture
PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
- non-transferable liability
This article shall not prejudice 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.
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
A non-derogable right
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
Article 49
Principles of legality and proportionality of criminal offences
and penalties
1. 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 law or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than that
which was applicable at the time the criminal offence was
committed. If, subsequent to the commission of a criminal
offence, the law provides for a lighter penalty, that penalty
shall be applicable.
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
65. The Court has acknowledged in its case-law that, however clearly
drafted a legal provision may be, in any system of law, including
criminal law, there is an inevitable element of judicial interpretation.
There will always be a need for elucidation of doubtful points and for
adaptation to changing circumstances. Again, whilst certainty is highly
desirable, it may bring in its train excessive rigidity and the law must be
able to keep pace with changing circumstances. Accordingly, many
laws are inevitably couched in terms which, to a greater or lesser
extent, are vague and whose interpretation and application are
questions of practice (see, mutatis mutandis, The Sunday Times (no. 1),
cited above, § 49, and Kokkinakis, cited above, § 40). The role of
adjudication vested in the courts is precisely to dissipate such
interpretational doubts as remain (see, mutatis mutandis, Cantoni,
cited above).
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
The Court has already noted that the wording of many statutes is not
absolutely precise. The need to avoid excessive rigidity and to keep pace
with changing circumstances means that many laws are inevitably
couched in terms which, to a greater or lesser extent, are vague (…).
Criminal-law provisions on proselytism fall within this category. The
interpretation and application of such enactments depend on practice.
In this instance there existed a body of settled national case-law (…). This
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. As to the constitutionality of section 4 of Law no.
1363/1938, the Court reiterates that it is, in the first instance, for the national
authorities, and in particular the courts, to interpret and apply domestic law
(…). And the Greek courts that have had to deal with the issue have ruled
that there is no incompatibility.
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
Case of Whitehouse v. Gay News Ltd and Lemon [1979], Lord Scarman
held that the modern law of blasphemy was correctly formulated in
Article 214 of Stephen’s Digest of the Criminal Law, 9th edition (1950).
This states as follows:
"Every publication is said to be blasphemous which contains any
contemptuous, reviling, scurrilous or ludicrous matter relating to God,
Jesus Christ or the Bible, or the formularies of the Church of England as
by law established. It is not blasphemous to speak or publish opinions
hostile to the Christian religion, or to deny the existence of God, if the
publication is couched in decent and temperate language. The test to
be applied is as to the manner in which the doctrines are advocated
and not to the substance of the doctrines themselves."
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
Article 220a
Genocide
1. Whoever, acting with the intent to destroy, in whole or in part, a
national, racial, religious or ethnical group as such,
(1) kills members of the group,
(2) causes serious bodily or mental harm to members of the group,
(3) places the group in living conditions capable of bringing about
their physical destruction in whole or in part,
(4) imposes measures which are intended to prevent births within the
group,
(5) forcibly transfers children of the group into another group, shall be
punished with life imprisonment.
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
105. The Court notes that the domestic courts construed the “intent to
destroy a group as such” systematically in the context of Article 220a § 1 of
the Criminal Code as a whole, having regard notably to alternatives no. 4
(imposition of measures which are intended to prevent births within the
group) and no. 5 (forcible transfer of children of the group into another
group) of that provision, which did not necessitate a physical destruction of
living members of the group in question. The Court finds that the domestic
courts’ interpretation of “intent to destroy a group” as not necessitating a
physical destruction of the group, which has also been adopted by a
number of scholars (see paragraphs 36 and 47 above), is therefore
covered by the wording, read in its context, of the crime of genocide in the
Criminal Code and does not appear unreasonable.
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
111. The Court notes in this connection that at the material time the
scope of Article II of the Genocide Convention, on which Article 220a
of the Criminal Code is based, was contested amongst scholars as
regards the definition of “intent to destroy a group”. Whereas the
majority of legal writers took the view that ethnic cleansing, in the way
in which it was carried out by the Serb forces in Bosnia and
Herzegovina in order to expel Muslims and Croats from their homes, did
not constitute genocide, a considerable number of scholars suggested
that these acts did indeed amount to genocide (see paragraph 47
above).
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
113. (…) the Court concludes that, while many authorities had favoured a
narrow interpretation of the crime of genocide, there had already been
several authorities at the material time which had construed the offence of
genocide in the same wider way as the German courts. In these
circumstances, the Court finds that the applicant, if need be with the
assistance of a lawyer, could reasonably have foreseen that he risked
being charged with and convicted of genocide for the acts he committed
in 1992. In this context the Court also has regard to the fact that the
applicant was found guilty of acts of a considerable severity and duration:
the killing of several people and the detention and ill-treatment of a large
number of people over a period of several months as the leader of a
paramilitary group in pursuit of the policy of ethnic cleansing.
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
The Court observed that its task was to consider, from the
standpoint of Article 7 § 1 of the Convention, whether, at the
time when they were committed, the applicants’ acts
constituted offences defined with sufficient accessibility and
foreseeability by the law of the GDR or international law.
Thus, the law did not determine with any degree of precision
the circumstances in which a particular range of sentence
applied. The prosecutor had in effect an unfettered discretion
to decide which minimum penalty would be applicable with
respect to the same offence. His decision was inevitably
subjective and left room for arbitrariness, particularly given the
lack of procedural safeguards. The domestic courts were bound
by that decision and could not impose a sentence below the
minimum established by law despite any concerns they might
have as to the use of the prosecutor’s discretion. The relevant
legal provision had therefore failed to satisfy the foreseeability
requirement and provide effective safeguards against arbitrary
punishment.
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
Sources:
The first applicant (Mr Maktouf) was convicted by the State Court in
July 2005 of aiding and abetting the taking of two civilian hostages as
a war crime and sentenced to five years’ imprisonment under the 2003
Criminal Code of Bosnia and Herzegovina (“the 2003 Criminal Code”).
In April 2006, an appeals chamber of the court confirmed his
conviction and the sentence after a fresh hearing with the
participation of two international judges. The second applicant
(Mr Damjanović), who had taken a prominent part in the beating of
captured Bosniacs in Sarajevo in 1992, was convicted in June 2007 of
torture as a war crime and sentenced to eleven years’ imprisonment
under the 2003 Criminal Code.
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
Law – Article 7: What was at issue was not the lawfulness of their
convictions but the different sentencing frameworks applicable to war
crimes under the two Codes.
The State Court had sentenced the first applicant to five years’
imprisonment; the lowest possible sentence for aiding and abetting
war crimes under the 2003 Code, whereas under the 1976 Code his
sentence could have been reduced to one year. Likewise, the second
applicant had been sentenced to eleven years’ imprisonment, slightly
above the ten-year minimum applicable in his case under the 2003
Code. However, under the 1976 Code, it would have been possible to
impose a sentence of only five years.
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
Further, while the Court accepted that the applicants’ sentences were
within the latitude of both the 1976 Criminal Code and the 2003
Criminal Code, so that it could not be said with any certainty that
either applicant would have received lower sentences had the 1976
Code been applied, the crucial point was that the applicants could
have received lower sentences if it had been. Accordingly, since there
was a real possibility that the retroactive application of the 2003 Code
had operated to the applicants’ disadvantage as regards sentencing,
it could not be said that they had been afforded effective safeguards
against the imposition of a heavier penalty.
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PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
Principle of proportionality