Ex post facto law
Encyclopedia : E : EX : EXP : Ex post facto law
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A hypothetical example: someone committed a high-profile, brutal murder, but the public thinks the existing laws will not punish the murderer severely enough; so the legislature enacts laws that will more severely punish those who have committed the crime of murder ensuring that this specific murderer will get a prison sentence longer than that prescribed at the time he committed the crime.
A law may have an ex post facto effect without being technically ex post facto. For example, when a law repeals a previous law, the repealed legislation no longer applies to the situations it once did, even if such situations arose before the law was repealed. The principle of prohibiting the continued application of these kinds of laws is also known as Nullum crimen, nulla poena sine praevia lege poenali.
Generally speaking, ex post facto laws are seen as a violation of the rule of law as it applies in a free and democratic society. Most common law jurisdictions do not permit retroactive legislation, though some have suggested that judge-made 'law' is retroactive as a new precedent applies to events that occurred prior to the judicial decision. In some nations that follow the Westminster system of government, such as the United Kingdom, ex post facto laws are technically possible as parliamentary supremacy allows the parliament to pass any law it wishes. However, in a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited.
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Ex post facto laws internationally
- Australia - Australia has no strong constitutional prohibition on ex post facto laws, though narrow retroactive laws may violate constitutional separation of powers principles. Courts do interpret statutes with a strong presumption that they do not apply retroactively. Retroactive laws designed to combat tax avoidance were passed in the early 1980s by the Fraser government.
- Canada - ex post facto criminal laws are constitutionally prohibited by section 11(g) of the Charter of Rights and Freedoms however if the punishment for a crime has varied between the time the crime was committed and the time of a conviction the convicted person is entitled to the lesser punishment.
- Finland has used ex post facto legislature in 1945, after the World War Two on the trial of the war responsibilities in Finland. A law which made the pre-war politics criminal was passed in order to get the leaders nominated by Stalin sentenced. Generally ex post facto jurisprudence is considered violating the Romano-German judicial system, but it is not prohibited in the Finnish law.
- France - any ex post facto criminal law may only be applied if it benefits the accused person (for instance, if weaker sentences are now applicable but were not previously applicable); otherwise, prohibited by the Declaration of the Rights of Man and of the Citizen.
- Germany - Article 103 of the German basic law requires that an act may only be punished if it has already been punishable by law at the time it was committed (specifically: by written law, Germany following civil law).
- The Nuremberg Trials and other post-World War II laws that prosecuted former members of the Nazi party are often accused of being ex post facto laws.
- Indonesia - Article 28I of the Indonesian constitution prohibits trying citizens under retroactive laws in any circumstance. This was tested in 2004 when the conviction of one of the Bali bombers under retroactive anti-terrorist legislation was quashed.
- Iran - Ex post facto laws, in all contexts, are prohibited by Article 169 (Chapter 11) of the Constitution of Iran.
- Italy - Article 25, paragraph 2, of the Italian Constitution establishing that "nobody can be punished but according to a law come into force before the deed was committed" prohibits indictment pursuant a retroactive laws. Article 11 of preliminary provisions to the Italian Civil Code and Article 3, paragraph 1, of the Statute of taxpayer's rights prohibit retroactive laws on principle, but such provisions can be derogated by acts having force of the ordinary law.
- Ireland - The imposition of retrospective criminal sanctions is prohibited by Article 15.5.1° of the Constitution of Ireland. Retrospective changes of the civil law have also been found to violate the constitution when they would have resulted in the loss in a right to damages before the courts, the Irish Supreme Court having found that such a right is a constitutionally protected property right.
- Norway - Article 97 of the Norwegian constitution prohibits any law to be given retroactive force.
- South Africa - Prohibited in criminal law by clause 35.(3)(l) of the Constitution of the Republic of South Africa; an exception exists for offences which were illegal under international law at the time of commission.
- Sweden - Retroactive penal sanctions and other retroactive legal effects of criminal acts, and retroactive taxes or charges due the State are prohibited by chapter 2, article 22, point 5 of the Instrument of Government (Regeringsformen).
- United Kingdom - Ex post facto laws are permitted under the doctrine of the parliamentary sovereignty; in criminal law, however, ex post facto laws are prohibited by article 7 of the European Convention on Human Rights.
- United States - Prohibited by Article I section 9 (applying to federal law) and section 10 (applying to state law) of the U.S. Constitution. Over the years, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in the Calder v. Bull case of 1798, in which Justice Chase established four categories of unconstitutional ex post facto laws. See also Fourteenth Amendment, Bouie v. City of Columbia, Rogers v. Tennessee
European Convention on Human Rights
Most European nations, and all European Union nations, are bound by the European Convention on Human Rights. Article 7 of the convention prohibits ex post facto criminal laws subject to two exceptions. It also prohibits a heavier penalty being imposed than was applicable at the time when an act was committed. The exceptions are:
- Acts illegal under international law at the time of their commission.
- Acts criminal according to "the general principles of law recognised by civilised nations".
Quotes
- "The sentiment that ex post facto laws are against natural right, is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong. Nor ought it to be presumed that the legislature meant to use a phrase in an unjustifiable sense, if by rules of construction it can be ever strained to what is just." (Thomas Jefferson, Letter to Isaac McPherson, August 13th, 1813)
See also
- Nulla poena sine lege - the principle that no-one may be punished for an act which is not against the law.
- Star Trek Voyager Series 1, Episode 8 'Ex Post Facto'
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