Ex post facto law

An ex post facto law (corrupted from Latin: ex postfacto, lit. 'out of the aftermath') is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed; it may aggravate a crime by bringing it into a more severe category than it was in when it was committed; it may change the punishment prescribed for a crime, as by adding new penalties or extending sentences; or it may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.

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.

Some common-law jurisdictions do not permit retroactive criminal legislation, though new precedent generally applies to events that occurred before the judicial decision. Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws). In some nations that follow the Westminster system of government, such as the United Kingdom, ex post facto laws are technically possible, because the doctrine of parliamentary supremacy allows Parliament to pass any law it wishes. In a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited.

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.[1]

Ex post facto laws by country

Australia

Australia has no strong constitutional prohibition on ex post facto laws, although narrowly retroactive laws might violate the constitutional separation of powers principle. Australian courts normally interpret statutes with a strong presumption that they do not apply retroactively.

Retroactive 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 (see Bottom of the harbour tax avoidance). Similarly, legislation criminalising certain war crimes retroactively has been held to be constitutional (see Polyukhovich v Commonwealth).

The government will sometimes make a press release that it intends to change the tax law with effect from the date and time of the press release, before legislation is introduced into parliament.

Brazil

According to the 5th Article, section XXXVI of the Brazilian Constitution, laws cannot have ex post facto effects that affect acquired rights, accomplished juridical acts and res judicata.

The same article in section XL prohibits ex post facto criminal laws. Like France, there is an exception when retroactive criminal laws benefit the accused person.

Canada

In Canada, ex post facto criminal laws are constitutionally prohibited by paragraph 11(g) of the Charter of Rights and Freedoms. Also, under paragraph 11(i) of the Charter, if the punishment for a crime has varied between the time the crime was committed and the time of sentencing following a conviction, the convicted person is entitled to the lesser punishment.

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.[2] Canadian courts have never ruled on the somewhat retroactive nature of the sex offender registry, since this seems to have never been challenged.

Sex offender registration was not mandatory for sex offenders until 2011, and had to be ordered by a judge. [3][2][4] Somewhat bizarrely, sex offender registration was seemingly mandatory for people convicted before December 15, 2004, who were serving a sentence on that date, but was only optional for sex offenders convicted between December 15, 2004, and January 1, 2011.

Because section 11 of the Charter is among the sections that can be overridden under section 33 (the notwithstanding clause), Parliament could in theory enact ex post facto laws by invoking section 33. However, the federal Parliament (which has the sole power to enact laws punishable for violation by two years or more in penitentiary) has never attempted to enact an ex post facto law (or any other law) using section 33.

It should be emphasized that the Charter prohibition applies only to criminal law. Changes to civil law in Canada can be, and occasionally are, enacted ex post facto. In one example, convicted murderer Colin Thatcher was ordered to forfeit proceeds from a book he had published (after being paroled from prison) under a Saskatchewan law. Although the law was passed long after Thatcher's murder conviction, the courts have ruled that such laws prescribe only civil penalties (as opposed to additional criminal penalties) and are thus not subject to Charter restrictions.

Croatia

Article 90 of the Constitution of Croatia states that "only individual provisions of a law may have a retroactive effect for exceptionally justified reasons". According to Croatian legal scholar Branko Smerdel, this means that "a law cannot be applied retroactively as a whole, and regulations enacted pursuant to statutory authority can never be applied retroactively".[5]

Finland

Generally, the Finnish legal system does not permit ex post facto laws, especially those that would expand criminal responsibility. They are not expressly forbidden; instead, the ban is derived from more general legal principles and basic rights. In civil matters, such as taxation, ex post facto laws may be made in some circumstances.

However, there have been three exceptional instances when ex post facto criminal laws have been used in Finland.

Following the Finnish Civil War of 1918, the Parliament of Finland passed a law setting up tribunals to try suspected rebels. These tribunals issued death sentences in many cases, although very few of those accused could have committed a crime that carried the death penalty under Finnish law in force during the war. Several hundred people were executed under what was arguably an ex post facto legal arrangement. During the war, and before the tribunals were set up, thousands of people had been executed without trial by both sides.

After World War II, Finland was under pressure to convict political leaders whom the Allied powers considered responsible for Finnish involvement in the war. An ex post facto law was passed in the autumn of 1945 to permit prosecution for war responsibility, and eventually eight politicians were convicted.

In another post-war case, the weapons cache case, an ex post facto law was passed in 1947 so that military personnel could be prosecuted for unofficially preparing for guerrilla resistance in case of Soviet occupation.

France

In France, so-called "lois rétroactives" (retroactive laws) are technically prohibited by Article 2 of the Code Civil, which states that: "Legislation provides only for the future; it has no retrospective operation".[6] In practice, however, since the Code Civil does not have the status of constitutional legislation and can therefore be overruled by subsequent laws, the Conseil Constitutionnel has determined that retroactive laws can be passed within certain limits – such as in the case of financial or tax legislation –, particularly where it is considered to be in the "general interest"; this has been demonstrated by a series of decisions handed down by the Conseil Constitutionnel concerning retroactive tax laws.[7]

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).[8] 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.[9] The épuration légale trials held after the 1944 liberation of France introduced the status of indignité nationale for Nazi collaborators as a way to avoid ex post facto law.

Germany

Article 103 of the 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).

Robert A. Taft, at the time a U.S. Senator from Ohio, asserted that the Nuremberg Trials following World War II were based on ex post facto law because the Allies did not negotiate the London Charter, which defined crimes against humanity and created the International Military Tribunal, until well after the acts charged. Others, including the International Military Tribunal, argued that the London Charter merely restated and provided jurisdiction to prosecute offenses that were already made unlawful by the Kellogg-Briand Pact, the Covenant of the League of Nations, and the various Hague Conventions.

The problem of ex post facto law was also relevant in the 1990s as there was a discussion about the trials against East German soldiers who killed fugitives on the Inner-German border (Mauerschützen-Prozesse - Wall-shooters'/ -guards' trials). German courts in these cases recurred to the Radbruch formula.[10]

Hungary

In 2010, the parliament established a 98% punitive tax on any income over two million forints received either as a retirement package or as severance pay in the previous five years in the government sector.[11]

India

In India, without using the expression "ex post facto law", the underlying principle has been adopted in the article 20(1) of the Indian Constitution in the following words:

No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which have been inflicted under the law in force at the time of commission of the offence.

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.[12]

An example for retrospective law in India is the Karnataka Schedule Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978[13] in the state of Karnataka.

Indonesia

The Indonesian constitution prohibits trying citizens under retroactive laws in any circumstance. This was tested in 2004 when the conviction of Masykur Abdul Kadir, one of the Bali bombers, under retroactive anti-terrorist legislation was quashed.[14]

Iran

Ex post facto laws, in all contexts, are prohibited by Article 169 (Chapter 11) of Iran's constitution.

Republic of Ireland

The imposition of retroactive criminal sanctions is prohibited by Article 15.5.1° of the Irish constitution. Retroactive 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.

Israel

Israel enacted the 1950 "Nazi and Nazi Collaborators (Punishment) Law" for the purpose of punishing acts that occurred during the Second World War, when Israel did not exist as a state. The law was used to punish Adolf Eichmann and others.

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 law. 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: such provisions can be derogated, however, by acts having force of the ordinary law; on the contrary, non-retroactivity in criminal law is thought absolute.[15]

Japan

Article 39 of the constitution of Japan prohibits the retroactive application of laws. Article 6 of Criminal Code of Japan further states that if a new law comes into force after the deed was committed, the lighter punishment must be given.

Lithuania

Lithuania has no constitutional prohibition on ex post facto laws. 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.

Lithuanian lawyer Dainius Žalimas contends that there has been retroactive application of the law on Genocide (and subsequently adopted articles of the Criminal Code) against participants in Soviet repressions against Lithuanian guerilla fighters and their supporters, and gives examples of such decisions. The Article 99 of the Criminal Code of the Republic of Lithuania was introduced only in September 26, 2000 and therefore can't be used in events of 1944-1953.

Mexico

According to the first and second paragraphs of the Article 14th of the Mexican Constitution, retroactive application of the law is prohibited if it is on detriment of a person rights. But the new law can be applied if it benefits the person.

Netherlands

Article 4 of the Law on General Provisions (in effect since 1838) states that "The law has no retroactive effect".[16]

Article 1 of Criminal Law states that no act is punishable without a pre-existing law, and that in the case an act was punishable but the law was changed after the criminal act the "most favorable" (to the suspect) of the two laws will apply.[17]

In Civil Law there is no such provision.

New Zealand

Section 7 of the Interpretation Act 1999 stipulates that enactments do not have retrospective effect. The New Zealand Bill of Rights Act 1990 also affirms New Zealand's commitment to the International Covenant on Civil and Political Rights and Universal Declaration of Human Rights, with section 26 preventing the application of retroactive penalties. This is further reinforced under section 6(1) of the current Sentencing Act 2002 which provides, "[p]enal enactments not to have retrospective effect to disadvantage of offender" irrespective of any provision to the contrary.

Section 26 of the Bill of Rights and the previous sentencing legislation, the Criminal Justice Act 1985, caused significant digression among judges when the New Zealand Parliament introduced legislation that had the effect of enacting a retrospective penalty for crimes involving an element of home invasion. Ultimately, the discrepancy was restricted with what some labelled artificial logic in the cases of R v Pora and R v Poumako.

Norway

Article 97 of the Norwegian constitution prohibits any law to be given retroactive effect. The prohibition applies to both criminal and civil laws, but in some civil cases, only particularly unreasonable effects of retroactivity will be found unconstitutional.[18]

Pakistan

Article 12 of the constitution of Pakistan prohibits any law to be given retroactive effect by stating:[19]

  • 12.1 - No law shall authorize the punishment of a person:-
  • 12.1.a - for an act or omission that was not punishable by law at the time of the act or omission; or
  • 12.1.b - for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.

Philippines

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

However, the Cybercrime Prevention Act, which went into effect on October 3, 2012, is criticized for being ex post facto.[20]

Poland

Retroactive application of law is prohibited by the Article 3 of the Polish civil code, and the legal rule prohibiting such retroactive application is commonly memorised as a Latin sentence Lex retro non agit ("A law does not apply retroactively"). The said article, however, allows retroactive application of an Act of Parliament if it is expressly understood from its text or purpose.

Portugal

Article 18 of the Portuguese constitution forbids the retroactive application of any law the restricts right; article 29 of the Portuguese Constitution forbids retroactive application of criminal law; article 103 forbids the application of retroactive taxes.

Romania

Article 15 (2) of the Romanian constitution provides that the law shall only act for the future, except for the more favourable criminal or administrative law.

Russia

Ex post facto punishment in criminal and administrative law is prohibited by article 54 of the constitution; ex post facto tax laws by article 57 of the constitution.

Spain

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.

As well as Statute law mentioned above, this now also includes 'court-made law'. The Parot doctrine, in which terrorists were denied the right (enshrined in a 1973 Statute) to earn a reduction in the length of their sentences by a Spanish court ruling in 2006 was judged by the European Court of Human Rights to be contrary to relevant articles on retroactivity & liberty and security in 2013.

South Africa

Section 35(3) of the South African Bill of Rights prohibits ex post facto criminal laws, except that acts which violated international law at the time they were committed may be prosecuted even if they were not illegal under national law at the time. It also prohibits retroactive increases of criminal punishments.

Sweden

In Sweden, retroactive penal sanctions and other retroactive legal effects of criminal acts due the State are prohibited by chapter 2, section 10 of the Instrument of Government (Regeringsformen). Retroactive taxes or charges are not prohibited, but they can have retroactive effect reaching back only to the time when a new tax bill was proposed by the government. The retroactive effect of a tax or charge thus reaches from that time until the bill is passed by the parliament.

As the Swedish Act of Succession was changed in 1979, and the throne was inherited regardless of sex, the inheritance right was withdrawn from all the descendants of Charles XIV John (king 1818-44) except the current king Carl XVI Gustaf. Thereby, the heir-apparent title was transferred from the new-born Prince Carl Philip to his older sister Crown Princess Victoria.

The Swedish Parliament voted in 2004 to abolish inheritance tax by January 1, 2005. However, in 2005 they retro-actively decided to move the date to December 17, 2004. The main reason was abolishing inheritance tax for the many Swedish victims of the 2004 Indian Ocean earthquake, which took place on December 26.

Turkey

Ex post facto punishment is prohibited by Article 38 of the Constitution of Turkey. It states:

  • c1. No one shall be punished for any act which does not constitute a criminal offence under the law in force at the time committed; no one shall be given a heavier penalty for an offence other than the penalty applicable at the time when the offence was committed.
  • c2. The provisions of the above paragraph shall also apply to the statute of limitations on offences and penalties and on the results of conviction.

Thus, the article does not prohibit in mitius laws, i.e. cases wherein the retroactive application benefits the accused person.

United Kingdom

In the United Kingdom, ex post facto laws are frowned upon, but are permitted by virtue of the doctrine of parliamentary sovereignty. Historically, all acts of Parliament before 1793 were ex post facto legislation, inasmuch as their date of effect was the first day of the session in which they were passed. This situation was rectified by the Acts of Parliament (Commencement) Act 1793.

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.[21]

Retrospective criminal laws are prohibited by Article 7 of the European Convention on Human Rights, to which the United Kingdom is a signatory, but several noted legal authorities have stated their opinion that parliamentary sovereignty takes priority even over this.[22][23] For example, the War Crimes Act 1991 created an ex post facto jurisdiction of British courts over war crimes committed during the Second World War. Another important example of a case which shows the doctrine of parliamentary supremacy in action is Burmah Oil Co Ltd v Lord Advocate, which retrospectively changed the law on compensation resulting from scorched earth actions in Burma during the war. The decision of the courts was overriden with retrospective effect by the War Damage Act 1965. More recently, the Police (Detention and Bail) Act 2011 retroactively overrode a controversial court judgment resulting from an error in the drafting of the Police and Criminal Evidence Act 1984 that would potentially have invalidated thousands of criminal convictions.

One 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.[24]

Taxation law has on multiple occasions been changed to retrospectively disallow tax avoidance schemes.[25] The most significant example known concerns Double-taxation Treaty Arrangements where the Finance Act 2008 with BN66 retrospectively amended 1987 legislation creating large tax liabilities for 3,000 people where no liability existed before. More recently, the so called "2019 Loan Charge", coming in from 5 April 2019 and going back 20 years retrospectively has triggered an Early Day Motion [2] in UK Parliament and the establishment of a Loan Charge Action Group. It has since transpired that Mel Stride, Financial Secretary to the Treasury and Paymaster General of Her Majesty's Treasury, misled UK Parliament stating that “the arrangements entered into by those who are in scope of this measure [the 2019 Loan Charge] were not legal when they were entered into, even though they may have been entered into in the past”. The Loan Charge Action Group has since written to demand a formal apology and correction of parliamentary record.

United States

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 13, 1813

In the United States, Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution. The states are prohibited from passing ex post facto laws by clause 1 of Article I, 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. Thomas Jefferson described them as "equally unjust in civil as in criminal cases". Over the years, however, when deciding ex post facto cases, the 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.[26] The case dealt with the Article I, Section 10, prohibition on ex post facto laws, because it concerned a Connecticut state law.

Not all laws with retroactive effects have been held to be unconstitutional. One current U.S. law that has a retroactive effect is the Adam Walsh Child Protection and Safety Act of 2006. This law imposes new registration requirements on convicted sex offenders and also applies to offenders whose crimes were committed before the law was enacted.[27] The U.S. Supreme Court ruled in Smith v. Doe (2003) that forcing sex offenders to register their whereabouts at regular intervals, and the posting of personal information about them on the Internet, do not violate the constitutional prohibition against ex post facto laws, because these laws do not impose any kind of punishment.[28][29]

In Starkey v. Oklahoma Department Of Corrections, the 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 has been ruled as not being retroactive in nature, the Oklahoma Department of Corrections had been applying the new legislation retroactively, and "also find 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."[30]

Controversy has also arisen with regard to sexually violent predator (SVP) laws, which allow the indefinite commitment of a person with a mental abnormality which predisposes them to molest children. This issue arose in the case Kansas v. Hendricks.[31] In Hendricks, a man with a long history of sexually molesting children was scheduled to be released from prison shortly after the enactment of Kansas's SVP act. Rather than being released, he was committed on the grounds that he had a mental abnormality. Hendricks contested the law on ex post facto and double jeopardy grounds. The Supreme Court of Kansas invalidated the Act, but the Supreme Court of the United States reversed the decision and ruled that the law was constitutional on the basis that the law did not impose a criminal punishment.[31]

Another example is the Domestic Violence Offender Gun Ban, where firearms prohibitions were imposed on those convicted of misdemeanor domestic-violence offenses and on subjects of restraining orders (which do not require criminal conviction). These individuals can now be sentenced to up to ten years in a federal prison for possession of a firearm, regardless of whether the weapon was legally possessed when the law was passed.[32] The law has been legally upheld because it is considered regulatory, not punitive; it is a status offense.[33]

Finally, in Calder v. Bull, the court expressly stated that a law that "mollifies" a criminal act was merely retrospective, and was not an ex post facto law.[34] Scholars have argued that, as a historical matter, the phrase ex post facto referred to civil as well as criminal laws.[35]

In administrative law, federal agencies may apply their rules retroactively if Congress has authorized them to; otherwise, retroactive application is generally prohibited. Retroactive application of regulations is disfavored by the courts for several reasons. The courts uphold retroactive regulation where Congress has expressly granted such retroactive power to the agency, as they did in Bowen v. Georgetown University Hospital.[36]

The rules as they relate to the effects of ex post facto upon the U.S. Federal Sentencing Guidelines can be found in U.S.S.G. § 1B1.11 (2012).

See also Bouie v. City of Columbia, Rogers v. Tennessee, Stogner v. California, Republic of Austria v. Altmann, James Bamford and Samuels v. McCurdy.

Treatment by international organizations and treaties

International criminal law

In international criminal law, the Nuremberg trials prosecuted war crimes and crimes against humanity perpetrated in World War II. Although the Nuremberg Charter, the procedural law under which the trials were held, postdated V-E Day, the tribunal rejected the defence that the criminal law was ex post facto, arguing it derived from earlier treaties like the Hague Conventions of 1899 and 1907. The International Criminal Court established in 2002 cannot prosecute crimes committed before 2002.

Universal Declaration of Human Rights and related treaties

Article 11, paragraph 2 of the Universal Declaration of Human Rights provides that no person be held guilty of any criminal law that did not exist at the time of offence nor suffer any penalty heavier than what existed at the time of offence. It does however permit application of either domestic or international law.

Very similar provisions are found in Article 15, paragraph 1 of the International Covenant on Civil and Political Rights, replacing the term "penal offence" with "criminal offence". It also adds that if a lighter penalty is provided for after the offence occurs, that lighter penalty shall apply retroactively. Paragraph 2 adds a provision that paragraph 1 does not prevent trying and punishing for an act that was criminal according to the general principles of law recognized by the community of nations. Specifically addressing the use of the death penalty, article 6, paragraph 2 provides in relevant part that a death sentence may only be imposed "for the most serious crimes in accordance with the law in force at the time of the commission of the crime".

African Charter on Human and Peoples' Rights

Article 2, paragraph 7 of the African Charter on Human and Peoples' Rights provides in part that "[n]o one may be condemned for an act or omission which did not constitute a legally punishable offense at the time it was committed. No penalty may be inflicted for an offense for which no provision was made at the time it was committed."

American Declaration of the Rights and Duties of Man

Article 25 of the American Declaration of the Rights and Duties of Man provides in part that "[n]o person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law." The right to be tried in accordance to "pre-existing law" is reiterated in article 26.

Arab Charter on Human Rights

Article 15 of the Arab Charter on Human Rights provides that "[n]o crime and no penalty can be established without a prior provision of the law. In all circumstances, the law most favorable to the defendant shall be applied."

European Convention on Human Rights

Effectively all European states (except Belarus), including all European Union and European Economic Area states, are bound by the European Convention on Human Rights. Article 7 of the Convention mirrors the language of both paragraphs of Article 15 of the International Covenant on Political and Civil Rights, with the exception that it does not include that a subsequent lighter penalty must apply.

Grammatical form and usage

The phrase may not appear to be grammatically correct in Latin if it is interpreted to comprise the preposition ex, the preposition post, and a noun with the wrong grammatical case to agree with post. Indeed, the Digesta Iustiniani (15.3.10.8.3, 20.1.22.pr2, etc.) shows a two-word phrase, ex postfacto: out of a postfactum (an after-deed), or more naturally, from a law passed afterward. This same work, however, also makes use of the three-word phrase ex post facto, (2.14.17.4.2, 4.6.17.1.1, passim), suggesting that post might best be understood as an adverb. This adverbial usage of post is not at all unusual. For example, the Classical author/advocate/politician Marcus Tullius Cicero employs phrases such as multis post annis (De Re Publica 2.5.8 and elsewhere).

Therefore, ex post facto or ex postfacto is natively an adverbial phrase, a usage demonstrated by the sentence "He was convicted ex post facto (from a law passed after his crime)." The law itself would rightfully be a postfactum law (lex postfacta); nevertheless, despite its redundant or circular nature, the phrase an ex post facto law is used.

In Poland the phrase lex retro non agit ("the law does not operate retroactively") is often used.[37]

See also

References

  1. ^ Westen, Peter (May 2015). "Lex Mitior: Converse of ex post facto and window into criminal desert". New Criminal Law Review: An International and Interdisciplinary Journal. pp. 167–213. doi:10.1525/nclr.2015.18.2.167.
  2. ^ a b "There's a problem with Canada's sex offender registry - Macleans.ca". www.macleans.ca.
  3. ^ "sex offender registration – Double Aspect".
  4. ^ "Government Bill (Senate) S-2 (40-3) - Royal Assent - Protecting Victims From Sex Offenders Act - Parliament of Canada". www.parl.ca.
  5. ^ Smerdel, Branko. "Croatia". Constitutional Law of 28 EU States (PDF). p. 206. Retrieved 25 May 2019.
  6. ^ "Link to Civil Code" (PDF).
  7. ^ "Janvier 2013: La rétroactivité fiscale dans la jurisprudence du Conseil constitutionnel" (in French). January 2013.
  8. ^ Soyer, Jean-Claude (2012). Droit pénal et procédure pénale. Lextenso Editions (in French) (21 ed.). Paris: L.G.D.G. pp. 75–78.
  9. ^ Terré, François (2001). Introduction générale au droit. Précis (in French) (8 ed.). Paris: Dalloz. pp. 204–5.
  10. ^ Benjamin Lahusen "Aus Juristen Demokraten machen"
  11. ^ Controversial 98% tax on gov't severance pay made retroactive to 2005 Archived November 11, 2010, at the Wayback Machine
  12. ^ "Protection against ex-post-facto laws". www.legalserviceindia.com.
  13. ^ "Department of Stamps and Registration, Government of Karnataka".
  14. ^ Indonesian Constitutional Court Decision No 013/PUU-I/2003 (Masykur Abdul Kadir Case)
  15. ^ (in Italian) Giampiero Buonomo, Dura lex sed negligens, in Mondoperaio, 9/2014, p. 61.
  16. ^ Article 4 Wet algemene bepalingen
  17. ^ Article 1 Wetboek van Strafrecht (Criminal Law)
  18. ^ "Norwegian Supreme Court case 2009/1575" (PDF). domstol.no.
  19. ^ "Chapter 1: "Fundamental Rights" of Part II: "Fundamental Rights and Principles of Policy"". www.pakistani.org.
  20. ^ "By the time you read this, I will be a criminal". Retrieved 3 October 2012.
  21. ^ "Pakistan Act 1990". Government of the United Kingdom. Retrieved 17 September 2010.
  22. ^ Lord Denning in Macarthys Ltd v Smith [1979] ICR 785 at p. 789, quoted in Steiner, Josephine; Woods, Lorna; Twigg-Flesner, Christian (2006). "Section 4.4.2: Effect of the European Communities Act 1972, s.2(1) and (4)". EU Law (9th ed.). Oxford, New York: Oxford University Press. p. 79. ISBN 978-0-19-927959-3. If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it — and says so in express terms — then ... it would be the duty of our courts to follow the statute of our Parliament.
  23. ^ Straw, Jack (2005-02-08). "Select Committee on European Scrutiny Minutes of Evidence: Examination of Witnesses (Questions 229-239): Rt hon Jack Straw MP and Mr David Frost". House of Commons Publications. Retrieved 2008-01-09. I think your Committee will be familiar with what Lord Denning, then Master of the Rolls, said in McCarthy v Smith: "If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision of it or with the intention of acting inconsistently with it—it says so in express terms—I should have thought it would be the duty of our courts to follow the statute in our Parliament." That much is clear. Other consequences would follow in those circumstances, which arise from our signature on the Vienna Convention on the Law of Treaty, Article 27, which says that you have to respect the international obligations into which you have entered.
  24. ^ Whitehead, Tom (3 January 2012). "Stephen Lawrence murder: change in double jeopardy law allowed Gary Dobson prosecution" – via www.telegraph.co.uk.
  25. ^ "Will retrospective taxes affect us all?". BBC News. 5 February 2010. Retrieved 2 May 2010.
  26. ^ Calder v. Bull, 3 U.S. 386 (1798).
  27. ^ "Library of Congress text of H.R.4472".
  28. ^ Smith v. Doe, 538 U.S. 84 (2003).
  29. ^ "Ex Post Facto Laws".
  30. ^ Starkey v. Oklahoma Department Of Corrections, 2013 OK 43 (2013), at [1]; OSCN Documents http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=470336
  31. ^ a b Kansas v. Hendricks, 521 U.S. 346 (1997).
  32. ^ 18 U.S.C. § 922(g)(8), 922(g)(9), and 924.
  33. ^ United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
  34. ^ Calder, 3 U.S.
  35. ^ Zoldan, Evan. "The Civil Ex Post Facto Clause". SSRN 2469141.
  36. ^ Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988).
  37. ^ Mattila, Heikki E. S.; Christopher Goddard (2006). Comparative Legal Linguistics. Ashgate Publishing. p. 154. ISBN 978-0-7546-4874-1.

External links

Acts of Parliament (Commencement) Act 1793

The Acts of Parliament (Commencement) Act 1793 (33 Geo. 3 c. 13) was an Act of the Parliament of the Kingdom of Great Britain which provided that Acts of Parliament would come into force on the date on which they received royal assent, unless they specified some other date, instead of the first day of the session in which they were passed.

BN66

Budget Note 66 (BN66) is the mechanism by which the UK Government introduced clause 55 of the Finance Bill 2008, which would later become Section 58 of the UK Finance Act 2008. This specifically targeted tax avoidance schemes that made use of offshore trusts and double taxation treaties to reduce the tax paid by the scheme's users. These schemes were heavily marketed to the freelance community after the introduction of intermediaries legislation known as IR35, as they appeared to offer more certainty concerning tax liabilities than would be the case if running a limited company.

In introducing S58 the Government retrospectively changed the law so that not only could these schemes not operate in future but they were effectively made unlawful from the day they were first introduced.

Barron v. Baltimore

Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), is a landmark United States Supreme Court case in 1833, which helped define the concept of federalism in US constitutional law. The Court ruled that the Bill of Rights did not apply to the state governments, establishing a precedent until the ratification of the 14th amendment.

Bill of attainder

A bill of attainder (also known as an act of attainder or writ of attainder or bill of pains and penalties) is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them, often without a trial. As with attainder resulting from the normal judicial process, the effect of such a bill is to nullify the targeted person's civil rights, most notably the right to own property (and thus pass it on to heirs), the right to a title of nobility, and, in at least the original usage, the right to life itself. Bills of attainder passed in Parliament by Henry Vlll on 29 January 1542 resulted in the executions of a number of notable historical figures.

The use of these bills by Parliament eventually fell into disfavour due to the obvious potential for abuse and the violation of several legal principles, most importantly the right to due process, the precept that a law should address a particular form of behaviour rather than a specific individual or group, and the separation of powers.

Calder v. Bull

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), is a United States Supreme Court case in which the Court decided four important points of constitutional law.

First, the ex post facto clause of the United States Constitution applies to criminal laws that have at least one of four effects:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. The decision restates this categorization later as laws "that create, or aggregate, the crime; or encrease [sic] the punishment, or change the rules of evidence, for the purpose of conviction" [emphasis in the original].Second, the Supreme Court lacked the authority to nullify state laws that violate that state's constitution:

this court has no jurisdiction to determine that any law of any state Legislature, contrary to the Constitution of such state is void.

Third, the Supreme Court said that:

no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. [emphasis in the original]

Fourth, the Supreme Court decided that this specific act of the Connecticut legislature, and any other state legislative act, is not a violation of the ex post facto clause if

there is no fact done by Bull and wife, Plaintiff's in Error, that is in any manner affected by the law or resolution of Connecticut: It does not concern, or relate to, any act done by them. [emphasis in the original]

Contract Clause

The Contract Clause appears in the United States Constitution, Article I, section 10, clause 1. The clause prohibits a State from passing any law that “impairs the obligation of contracts” or “makes any thing but gold and silver coin a tender in payment of debts”. It states:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Although the clause creates the right for people to form contracts, the government can create laws that prohibit contracts that go against public policy, such as contracts for sex or child labor.

The clause immediately follows Article I section 9, which prohibits the federal government from passing bills of attainder and ex post facto laws, or granting titles of nobility. It also adds a number of other restrictions which the federal government is not subject to.

De Veau v. Braisted

De Veau v. Braisted, 363 U.S. 144 (1960), is a 5-to-3 ruling by the Supreme Court of the United States that an interstate compact restricting convicted felons from holding union office is not preempted by the National Labor Relations Act or the Labor Management Reporting and Disclosure Act, does not violate the Due Process Clause of the 14th Amendment, and is not an ex post facto law or bill of attainder in violation of Article One, Section 10 of the Constitution.

Deferred prosecution

A deferred prosecution agreement (DPA), which is very similar to a non-prosecution agreement (NPA), is a voluntary alternative to adjudication in which a prosecutor agrees to grant amnesty in exchange for the defendant agreeing to fulfill certain requirements. A case of corporate fraud, for instance, might be settled by means of a deferred-prosecution agreement in which the defendant agrees to pay fines, implement corporate reforms, and fully cooperate with the investigation. Fulfillment of the specified requirements will then result in dismissal of the charges.

Ex parte Garland

Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866), was an important United States Supreme Court case involving the disbarment of former Confederate officials.

Garner v. Board of Public Works

Garner v. Board of Public Works, 341 U.S. 716 (1951), is a ruling by the United States Supreme Court which held that a municipal loyalty oath which required an oath and affidavit about one's beliefs and actions for the previous five years and which was enacted more than five years previous is not an ex post facto law nor a bill of attainder.

Military Commissions Act of 2006

The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. The Act's stated purpose was "to authorize trial by military commission for violations of the law of war, and for other purposes".It was drafted following the Supreme Court's decision on Hamdan v. Rumsfeld (2006), which ruled that the Combatant Status Review Tribunals (CSRT), as established by the United States Department of Defense, were procedurally flawed and unconstitutional, and did not provide protections under the Geneva Conventions. It prohibited detainees who had been classified as enemy combatants or were awaiting hearings on their status from using habeas corpus to petition federal courts in challenges to their detention. All pending habeas corpus cases at the federal district court were stayed.

In Boumediene v. Bush (2008), the US Supreme Court held that section 7 of the MCA was unconstitutional because of its restrictions of detainee rights. It determined that detainees had the right to petition federal courts for habeas corpus challenges.

Nuremberg trials

The Nuremberg trials (German: Die Nürnberger Prozesse) were a series of military tribunals held by the Allied forces under international law and the laws of war after World War II. The trials were most notable for the prosecution of prominent members of the political, military, judicial and economic leadership of Nazi Germany, who planned, carried out, or otherwise participated in the Holocaust and other war crimes. The trials were held in the city of Nuremberg, Germany, and their decisions marked a turning point between classical and contemporary international law.

The first and best known of these trials was that of the major war criminals before the International Military Tribunal (IMT). It was described as "the greatest trial in history" by Sir Norman Birkett, one of the British judges who presided over them. Held between 20 November 1945 and 1 October 1946, the Tribunal was given the task of trying 24 of the most important political and military leaders of the Third Reich – though the proceeding against Martin Bormann was tried in absentia, while another defendant, Robert Ley, committed suicide within a week of the trial's commencement.

Adolf Hitler, Wilhelm Burgdorf, Hans Krebs and Joseph Goebbels had all committed suicide in the spring of 1945 to avoid capture. Heinrich Himmler attempted to commit suicide, but was captured before he could succeed; he committed suicide one day after being arrested by British forces. Krebs and Burgdorf committed suicide two days after Hitler in the same place. Reinhard Heydrich had been assassinated by Czech partisans in 1942. Josef Terboven killed himself with dynamite in Norway in 1945. Adolf Eichmann fled to Argentina to avoid Allied capture, but was apprehended by Israel's intelligence service (Mossad) and hanged in 1962. Hermann Göring was sentenced to death, but committed suicide by consuming cyanide the night before his execution in defiance of his captors. Miklós Horthy appeared as a witness at the Ministries trial held in Nuremberg in 1948.

This article primarily deals with the first trial, which was conducted by the IMT. Further trials of lesser war criminals were conducted under Control Council Law No. 10 at the U.S. Nuremberg Military Tribunal (NMT), which included the Doctors' trial and the Judges' Trial.

The categorization of the crimes and the constitution of the court represented a juridical advance that would be used afterwards by the United Nations for the development of a specific international jurisprudence in matters of war crime, crimes against humanity, war of aggression, as well as for the creation of the International Criminal Court.

The Nuremberg indictment also mentions genocide for the first time in international law (Count three, war crimes : "the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, and Gypsies and others.")

Publius Cornelius Lentulus Sura

Publius Cornelius Lentulus, nicknamed Sura (114 BC – 5 December 63 BC), was one of the chief figures in the Catilinarian conspiracy and also a stepfather of Mark Antony.

When accused by Sulla (to whom he had been quaestor in 81 BC) of having squandered the public money, he refused to render any account, but insolently held out the calf of his leg (sura), on which part of the person boys were punished when they made mistakes in playing ball, akin to inviting a slap on the wrist. He was praetor in 75 BC, governor of Sicily in 74 BC, and consul in 71 BC.

In 70, being expelled from the senate with a number of others for immorality, he joined Catiline. Relying upon a Sibylline oracle that three Cornelii should be rulers of Rome, Lentulus regarded himself as the destined successor of Lucius Cornelius Sulla and Lucius Cornelius Cinna. When Catiline left Rome after Cicero's second speech In Catilinam, Lentulus took his place as chief of the conspirators in the city. In conjunction with C. Cornelius Cethegus, he undertook to murder Cicero and set fire to Rome, but the plot failed owing to his timidity and indiscretion.

Ambassadors from the Allobroges being at the time in Rome, the bearers of a complaint against the oppressions of provincial governors, Lentulus made overtures to them, with the object of obtaining armed assistance. Pretending to fall in with his views, the ambassadors obtained a written agreement signed by the chief conspirators, and informed Q. Fabius Sanga, their "patron" in Rome, who in his turn acquainted Cicero.

The conspirators were arrested and forced to admit their guilt. Lentulus was compelled to abdicate his praetorship, and, as it was feared that there might be an attempt to rescue him, he was put to death in the Tullianum on 5 December 63 BC, along with other senatorial supporters of Catiline.

The legitimacy of these killings, which were carried out on the personal command of the consuls and without a judicial trial, was disputed. Cicero argued that his actions were lawful under the Senatus consultum ultimum, but was exiled in 58 BC after the people's tribune, Publius Clodius Pulcher, Cicero's bitter enemy, passed a law prohibiting extrajudicial killings of Roman citizens, and then accused Cicero of having violated it. This is an example of an ex post facto law. He was recalled the following year, though, by a vote of the senate.

Cicero had cause to regret his actions, as his treatment of Lentulus was one of the reasons why Mark Antony, Lentulus' stepson, later demanded Cicero's own execution as a condition of his joining the Second Triumvirate which was refuse by Octavian but he still happen.

Retroactive

Retroactive may refer to:

Retroactive (album), an album by Grand Puba

Retro-active, an album by Karizma

Retro Active, an album by Def Leppard

Retroactive (film), a 1997 movie starring James Belushi and Kylie Travis

Retrospective

A retrospective (from Latin retrospectare, "look back"), generally, is a look back at events that took place, or works that were produced, in the past. As a noun, retrospective has specific meanings in medicine, software development, popular culture and the arts. It is applied as an adjective, synonymous with the term retroactive, to laws, standards, and awards.

Search of persons

Police officers in various jurisdictions have power to search members of the public, for example, for weapons, drugs and stolen property. This article concerns searches of members of the public who have not been arrested and who are not held in detention. For search powers in relation to those persons see Search on arrest and Searches in detention. For searches of property, rather than people, see search and seizure.

Stogner v. California

Stogner v. California, 539 U.S. 607 (2003), is a decision by the Supreme Court of the United States, which held that California's retroactive extension of the statute of limitations for sexual offenses committed against minors was an unconstitutional ex post facto law.

War Crimes Act 1991

The War Crimes Act 1991 is an Act of the Parliament of the United Kingdom. It confers jurisdiction on courts in the United Kingdom to try people for war crimes committed in Nazi Germany or German-occupied territory during the Second World War by people who were not British citizens at the time, but have since become British citizens or residents. The legislation was enacted, as there then were no provisions to allow the extradition of British residents, or naturalised citizens to face trial for war crimes in third countries. Other countries, such as the United States have used civil, rather than criminal proceedings, to resolve this issue by revoking citizenship of suspects, facilitating their deportation.The Act was rejected by the House of Lords, and so it was passed with the authority of only the House of Commons, under the provisions of the Parliament Acts 1911 and 1949. The Parliament Acts are rarely invoked: the War Crimes Act was only the fourth statute since 1911 enacted under their provisions, and the first since the Parliament Act 1949. The War Crimes Act remains the only time that the Parliament Acts were invoked by a Conservative government.

To date only one person, Anthony Sawoniuk, has been convicted under the Act. In 1999, he was sentenced to life imprisonment for murder during his involvement with the collaborationist Belarusian Auxiliary Police. He died in jail in 2005.

The first person to be charged, however, was fellow Belarusian officer, Symon Serafinowicz Sr. His trial commenced in 1997 for the murder of three unnamed Jews committed as during his role as Police chief in Mir. At this stage he was in the advanced stages of dementia was declared medically unfit. He died later that year.

Weapons Cache Case

The Weapons Cache Case (Finnish: Asekätkentä, Swedish: Vapengömmoaffären) was a Finnish criminal case of the mid-1940s. It concerned a secret and officially unsanctioned military operation following the Continuation War, where a large amount of Finnish Army weapons and equipment was hidden in caches scattered around the country.

Following the Moscow Armistice of September 19, 1944, two high-ranking officers in the Operational department of Finnish Military HQ, Colonel Valo Nihtilä and Lieutenant Colonel Usko Haahti, started planning countermeasures against a possible Soviet occupation of the country. They came up with the idea of decentralized storage of light infantry weapons, so that in case of occupation, an immediate guerrilla war could be launched.

During the demobilization, an organization responsible for hiding the equipment was created and war materiel and other supplies were given to them for safekeeping. A total of 5,000–10,000 people participated in the operation. It was planned that they would cache supplies for 8,000 men, but the participants worked so eagerly that it is supposed they hid enough for 35,000 soldiers.The case started to unravel in the spring of 1945, when one man, who had stolen foodstuffs from the cache to sell them on the lucrative black market and feared reprisal from his comrades, divulged the existence of the caches to the Allied Control Commission (ACC). Initially the ACC was eager to follow the case, but after written orders from Nihtilä and Haahti surfaced, they left the investigation to Valpo, the much communist-controlled security police of Finland at the time.

Valpo interrogated more than 5,000 people but failed to completely crack the case and find all the weapons. Most of the weapons were silently returned to army depots, and some were destroyed, but even today when old buildings are demolished, caches turn up every year. The investigators failed to find out how many people participated in the operation, as the participants tended to be reluctant to divulge meaningful information.

While the operation was unofficial, there was no Finnish law under which those involved could be prosecuted. An ex post facto law was passed for the purpose in January 1947. In the end, 1,488 people were convicted, most of them sentenced to 1–4 months in prison.

Decades later, in 1980, social democrat Arvo Tuominen, a former Finnish Communist leader, claimed that the weapons cache case was the tipping point which transferred the power within the Finnish Communist movement from the revolutionary to the parliamentary wing, as the communists feared armed resistance against revolutionary takeover. However, according to historian Kimmo Rentola and others, Tuominen's claims are to be treated very sceptically.

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