Ex post facto law
Encyclopedia
An ex post facto law or retroactive law is a law
that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law. In reference to criminal law
, it may criminalize
actions that were legal when committed; or it may aggravate a crime
by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence
in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted. Conversely, a form of ex post facto law commonly known as an amnesty law
may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with lifelong imprisonment) retroactively. Such laws are also known by the Latin term In mitius.
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 For example, when a law repeals a previous law, the repealed legislation no longer applies to the situations it once did, even if such situations arose before the law was repealed.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
, particularly in European continental systems.
Some common law
jurisdiction
s do not permit retroactive criminal legislation, though new precedent
generally applies to events that occurred prior to the judicial decision. ex post facto laws are expressly forbidden by the United States Constitution
. In some nations that follow the Westminster system
of government, such as the United Kingdom
, ex post facto laws are technically possible as the doctrine of parliamentary supremacy allows 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.
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, the retroactive effect of legislation criminalizing certain war crimes retroactively have 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.
The same article, in section XL prohibits ex post facto criminal laws. Like France, there is an exception, when retroactive criminal laws benefits the accused person.
, ex post facto criminal laws are constitutionally prohibited by section 11(g) of the Charter of Rights and Freedoms. Also, under section 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.
Because Section 11 of the Charter is among the sections that can be overridden under Section 33
(the so-called "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 Saskatchewan's Son of Sam law
. Although the Saskatchewan law was passed long after Thatcher's murder conviction, the courts have ruled that Son of Sam laws prescribe only civil penalties (as opposed to additional criminal penalties) and are thus not subject to Charter restrictions.
used ex post facto legislation in 1945, after World War Two, in trials 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, and are banned by the Constitution of Finland
. Still, ex post facto laws may be used in civil cases, especially concerning vehicle taxes.
, any ex post facto criminal law may be applied only if the retroactive application benefits the accused person (called retroactivity "in mitius"). An example of this rule would be a case where a weaker sentence is now applicable but was not previously applicable. See also the Declaration of the Rights of Man and of the Citizen
.
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).
Some scholars assert that the Nuremberg Trials
following World War II
were based on ex post facto law, because the Allies did not negotiate the London Charter
, defining crimes against humanity and creating 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-shooter's trial).
"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 Art. 20(1) prohibits is conviction and sentence under as 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 America, 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.
In India there is a retrospective law called the Schedule Caste & Schedule Tribes (PTCL) Act, 1978. According to this strange law any SC/ST granted land bought even before the law was enacted has to be returned to the original grantee or his heirs, even though this land may have passed a number of hands (bought and sold), and each time being Registered at the Government Offices itself. All these registrations conveniently become null and void. The current buyer/owner has to give back the land with absolutely no payment. His investment is lost to this retrospective law.
n 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.
.
of Ireland
. 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.
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.
In 2011, Israel retroactively legalised their settlements in the West Bank
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.
of Japan
prohibits the retroactive application of laws. Article 6 of Criminal Code of Japan
further state that if a new law comes into force after the deed was committed, the lighter punishment must be given.
and UNDHR
, 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.
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.
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."
of the Republic of South Africa
; an exception exists for offenses which were illegal under international law
at the time of commission.
, 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.
of Turkey
.
, 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, in 1990 the Pakistan Act (which readmitted Pakistan to the Commonwealth
) 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.
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. For example, the War Crimes Act 1991
created an ex post facto jurisdiction of British courts over war crime
s committed during the Second World War
.
Taxation law has on multiple occasions been changed to retrospectively disallow tax avoidance
schemes.
, the federal government is prohibited from passing ex post facto laws by clause 3 of Article I
, section 9 of the U.S. Constitution and the states are prohibited from the same by clause 1 of Article I
, section 10. susan b. anthony talked about the ex post facto law in her womenssuffrage speech. This is one of the very few restrictions that the United States Constitution made to both the power of the federal and state governments prior to the Fourteenth Amendment
. 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
, 3 U.S. 386 (1798), in which Justice Samuel Chase
established four categories of unconstitutional ex post facto laws. The case dealt with Article I, section 10, since it dealt with a Connecticut state law.
However, not all laws with ex post facto effects have been found to be unconstitutional. One current U.S. law that has an ex post facto effect is the Adam Walsh Child Protection and Safety Act
of 2006. This law, which imposes new registration requirements on convicted sex offenders, also applies to offenders whose crimes were committed before the law was enacted. 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 does not violate the constitutional prohibition against ex post facto laws, because this does not constitute any kind of punishment.
Another example is the Domestic Violence Offender Gun Ban
, where firearms prohibitions were imposed on those convicted of misdemeanor domestic violence offenses and subjects of restraining orders (which do not require a criminal conviction). These individuals can now be sentenced to up to 10 years in a federal prison
for possession of a firearm, regardless of whether or not the weapon was legally possessed at the time the law was passed. Among those that it is claimed the law has affected is a father who was convicted of a misdemeanor of child abuse
for spanking
his child, since anyone convicted of child abuse now faces a lifetime firearms prohibition. The law has been legally upheld because it is considered regulatory, not punitive—it is a status offense
.
Finally, Calder v. Bull
expressly stated that a law that "mollifies" a criminal act was merely retrospective and not an ex post facto law.
A large "exception" to the ex post facto prohibition can be found in administrative law
, as federal agencies may apply their rules retroactively if Congress has authorized them to do so. Retroactive application is disfavored by the courts for a number of reasons, but Congress may grant agencies this authority through express statutory provision. Furthermore, when an agency engages in adjudication
, it may apply its own policy goals and interpretation of statutes retroactively, even if it has not formally promulgated a rule
on a subject.
Retroactive taxes are not ex post facto laws. Substantive due process challenges to retroactive tax laws are given rational basis review per United States v. Carlton.
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 under 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...."
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."
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.
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.
with the wrong grammatical case
to agree with post. Indeed, the Latin for this phrase is actually two words, ex postfacto, literally, out of a postfactum (an after-deed), or more naturally, from a law passed afterward.
Therefore, ex post facto or ex postfacto is natively an adverbial phrase, a usage demonstrated by the sentence "He was convicted ex post facto (i.e., 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.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law. In reference to criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, it may criminalize
Criminalization
Criminalization or criminalisation, in criminology, is "the process by which behaviors and individuals are transformed into crime and criminals". Previously legal acts may be transformed into crimes by legislation or judicial decision...
actions that were legal when committed; or it may aggravate a crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence
Rules of evidence
Rules of evidence govern whether, when, how, and for what purpose, proof of a legal case may be placed before a trier of fact for consideration....
in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted. Conversely, a form of ex post facto law commonly known as an amnesty law
Amnesty law
An amnesty law is any law that retroactively exempts a select group of people, usually military leaders and government leaders, from criminal liability for crimes committed.Most allegations involve human rights abuses and crimes against humanity.-History:...
may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with lifelong imprisonment) retroactively. Such laws are also known by the Latin term In mitius.
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
Nullum crimen, nulla poena sine praevia lege poenali
Nullum crimen, nulla poena sine praevia lege poenali is a basic maxim in continental European legal thinking...
, particularly in European continental systems.
Some common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s do not permit retroactive criminal legislation, though new precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
generally applies to events that occurred prior to the judicial decision. ex post facto laws are expressly forbidden by the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. In some nations that follow the Westminster system
Westminster System
The Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
of government, such as the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, ex post facto laws are technically possible as the doctrine of parliamentary supremacy allows Parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
to pass any law it wishes. However, in a nation with an entrenched bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
or a written constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
, ex post facto legislation may be prohibited.
Australia
AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
has no strong constitutional prohibition on ex post facto laws, although narrowly retroactive laws might violate the constitutional separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
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
Tax avoidance
Tax avoidance is the legal utilization of the tax regime to one's own advantage, to reduce the amount of tax that is payable by means that are within the law. The term tax mitigation is a synonym for tax avoidance. Its original use was by tax advisors as an alternative to the pejorative term tax...
were passed in the early 1980s by the Fraser
Malcolm Fraser
John Malcolm Fraser AC, CH, GCL, PC is a former Australian Liberal Party politician who was the 22nd Prime Minister of Australia. He came to power in the 1975 election following the dismissal of the Whitlam Labor government, in which he played a key role...
government (see Bottom of the harbour tax avoidance
Bottom of the harbour tax avoidance
Bottom of the harbour tax avoidance was a form of tax avoidance used in Australia in the 1970s. Legislation made it a criminal offence in 1980...
). Similarly, the retroactive effect of legislation criminalizing certain war crimes retroactively have been held to be constitutional (see Polyukhovich v Commonwealth
Polyukhovich v Commonwealth
Polyukovich v The Commonwealth [1991] HCA 32; 172 CLR 501, commonly referred to as the War Crimes Act Case, was a significant case decided in the High Court of Australia regarding the scope of the external affairs power in section 51 of the Constitution and the judicial power of the...
).
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 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 benefits the accused person.
Canada
In CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, ex post facto criminal laws are constitutionally prohibited by section 11(g) of the Charter of Rights and Freedoms. Also, under section 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.
Because Section 11 of the Charter is among the sections that can be overridden under Section 33
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
(the so-called "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
Civil law
Civil law may refer to:* Civil law , a branch of continental law which is the general part of private law* Civil law , a branch of common law dealing with relations between individuals or organizations...
in Canada can be (and occasionally are) enacted ex post facto. In one example, convicted murderer Colin Thatcher
Colin Thatcher
Wilbert Colin Thatcher is a Canadian former politician convicted for the murder of his ex-wife, JoAnn Wilson.-Political life:Colin Thatcher is the son of Wilbert Ross Thatcher, premier of Saskatchewan from 1964 to 1971...
was ordered to forfeit proceeds from a book he had published (after being paroled from prison) under Saskatchewan's Son of Sam law
Son of Sam law
A Son of Sam Law is any American law designed to keep criminals from profiting from the publicity of their crimes, often by selling their stories to publishers. However, this is not in the same manner of asset forfeiture, which is intended to seize assets acquired directly as a result of criminal...
. Although the Saskatchewan law was passed long after Thatcher's murder conviction, the courts have ruled that Son of Sam laws prescribe only civil penalties (as opposed to additional criminal penalties) and are thus not subject to Charter restrictions.
Finland
FinlandFinland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...
used ex post facto legislation in 1945, after World War Two, in trials of the war responsibilities in Finland
War-responsibility trials in Finland
The war-responsibility trials in Finland was a trial of the Finnish wartime leaders held responsible for "definitely influencing Finland in getting into a war with the Soviet Union and United Kingdom in 1941 or preventing peace" during the Continuation War, 1941-1944. Unlike other World War II...
. 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, and are banned by the Constitution of Finland
Constitution of Finland
The Constitution of Finland is the supreme source of national law of Finland. It defines the basis, structures and organisation of government, the relationship between the different constitutional organs, and lays out the fundamental rights of Finnish citizens...
. Still, ex post facto laws may be used in civil cases, especially concerning vehicle taxes.
France
The expression "Ex post facto law" translates to "loi rétroactive" in French. In FranceFrance
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, any ex post facto criminal law may be applied only if the retroactive application benefits the accused person (called retroactivity "in mitius"). An example of this rule would be a case where a weaker sentence is now applicable but was not previously applicable. See also the Declaration of the Rights of Man and of the Citizen
Declaration of the Rights of Man and of the Citizen
The Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...
.
Germany
Article 103 of the German basic lawBasic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies of World War II on 12 May, came into effect on 23 May, as the constitution of those states of West Germany that were initially included...
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
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
following civil law).
Some scholars assert that the Nuremberg Trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
following World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
were based on ex post facto law, because the Allies did not negotiate the London Charter
London Charter of the International Military Tribunal
The London Charter of the International Military Tribunal was the decree issued on August 8, 1945, that set down the laws and procedures by which the Nuremberg trials were to be conducted.The charter stipulated that crimes of the European Axis Powers could be tried...
, defining crimes against humanity and creating the International Military Tribunal, until well after the acts charged. Others, including the International Military Tribunal, argued that the London Charter
London Charter of the International Military Tribunal
The London Charter of the International Military Tribunal was the decree issued on August 8, 1945, that set down the laws and procedures by which the Nuremberg trials were to be conducted.The charter stipulated that crimes of the European Axis Powers could be tried...
merely restated and provided jurisdiction to prosecute offenses that were already made unlawful by the Kellogg-Briand Pact
Kellogg-Briand Pact
The Kellogg–Briand Pact was an agreement signed on August 27, 1928, by the United States, France, the United Kingdom, Italy, Japan, Weimar Germany and a number of other countries.The pact renounced war , prohibiting the use of war...
, the Covenant of the League of Nations
Covenant of the League of Nations
-Creation:Early drafts for a possible League of Nations began even before the end of the First World War. A London-based study group led by James Bryce and G. Lowes Dickinson made proposals adopted by the British League of Nations Society, founded in 1915. Another group in the United States—which...
, and the various Hague Conventions
Hague Conventions (1899 and 1907)
The Hague Conventions were two international treaties negotiated at international peace conferences at The Hague in the Netherlands: The First Hague Conference in 1899 and the Second Hague Conference in 1907...
.
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-shooter's trial).
Hungary
In 2010, the Fidesz-dominated 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 last 5 years.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 Art. 20(1) prohibits is conviction and sentence under as 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 America, 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.
In India there is a retrospective law called the Schedule Caste & Schedule Tribes (PTCL) Act, 1978. According to this strange law any SC/ST granted land bought even before the law was enacted has to be returned to the original grantee or his heirs, even though this land may have passed a number of hands (bought and sold), and each time being Registered at the Government Offices itself. All these registrations conveniently become null and void. The current buyer/owner has to give back the land with absolutely no payment. His investment is lost to this retrospective law.
Indonesia
Article 28I of the IndonesiaIndonesia
Indonesia , officially the Republic of Indonesia , is a country in Southeast Asia and Oceania. Indonesia is an archipelago comprising approximately 13,000 islands. It has 33 provinces with over 238 million people, and is the world's fourth most populous country. Indonesia is a republic, with an...
n 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 Iran's constitutionConstitution of Islamic Republic of Iran
The Constitution of the Islamic Republic of Iran was adopted by referendum on October 24, 1979, and went into force on December 3 of that year, replacing the Constitution of 1906. It was amended on July 28, 1989. The constitution has been called a "hybrid" of "authoritarian, theocratic and...
.
Ireland
The imposition of retroactive criminal sanctions is prohibited by Article 15.5.1° of the constitutionConstitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
of Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
. 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
Supreme Court (Ireland)
The Supreme Court of Ireland is the highest judicial authority in the Republic of Ireland. It is a court of final appeal and exercises, in conjunction with the High Court, judicial review over Acts of the Oireachtas . The Court also has jurisdiction to ensure compliance with the Constitution of...
having found that such a right is a constitutionally protected property right.
Israel
IsraelIsrael
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
enacted the 1950 "Nazi and Nazi Collaborators (Punishment) Law" for the purpose of punishing acts that occurred during the Second World War, when Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
did not exist as a state. The law was used to punish Adolf Eichmann
Adolf Eichmann
Adolf Otto Eichmann was a German Nazi and SS-Obersturmbannführer and one of the major organizers of the Holocaust...
and others.
In 2011, Israel retroactively legalised their settlements in the West Bank
West Bank
The West Bank ) of the Jordan River is the landlocked geographical eastern part of the Palestinian territories located in Western Asia. To the west, north, and south, the West Bank shares borders with the state of Israel. To the east, across the Jordan River, lies the Hashemite Kingdom of Jordan...
Italy
Article 25, paragraph 2, of the Italian ConstitutionConstitution of Italy
The Constitution of the Italian Republic was enacted by the Constituent Assembly on 22 December 1947, with 453 votes in favour and 62 against. The text, which has since been amended 13 times, was promulgated in the extraordinary edition of Gazzetta Ufficiale No. 298 on 27 December 1947...
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
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
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.
Japan
Article 39 of the constitutionConstitution of Japan
The is the fundamental law of Japan. It was enacted on 3 May, 1947 as a new constitution for postwar Japan.-Outline:The constitution provides for a parliamentary system of government and guarantees certain fundamental rights...
of Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
prohibits the retroactive application of laws. Article 6 of Criminal Code of Japan
Criminal Code of Japan
The Penal Code of Japan was passed in 1907 as Law No. 45. It is one of the Six Codes that form the foundation of Japanese law.- External links :* - Japanese Ministry of Justice...
further state that if a new law comes into force after the deed was committed, the lighter punishment must be given.
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 ICCPRInternational Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
and UNDHR
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
, 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
Parliament of New Zealand
The Parliament of New Zealand consists of the Queen of New Zealand and the New Zealand House of Representatives and, until 1951, the New Zealand Legislative Council. The House of Representatives is often referred to as "Parliament".The House of Representatives usually consists of 120 Members of...
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 NorwegianNorway
Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million...
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.
Pakistan
Article 12 of the constitution of Pakistan prohibits any law to be given retroactive effect by stating:- 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 PhilippinesPhilippines
The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...
categorically prohibits the passing of any ex post facto law. Article III (Bill of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
), Section 22 specifically states: "No ex post facto law or bill of attainder
Bill of attainder
A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.-English law:...
shall be enacted."
Russia
Ex post facto punishment in criminal and administrative law is prohibited by art.54 of Constitution; Ex post facto tax laws by art.57 of 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.South Africa
Prohibited in criminal law by clause 35.(3)(l) of the ConstitutionConstitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
of the Republic of South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
; an exception exists for offenses which were illegal under international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
at the time of commission.
Sweden
In SwedenSweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....
, 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
Swedish Act of Succession
The Act of Succession is a part of the Swedish Constitution. It was adopted by the Riksdag of the Estates on September 26, 1810, and it regulates the right of members of the House of Bernadotte to accede to the Swedish throne...
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
Inheritance tax
An inheritance tax or estate tax is a levy paid by a person who inherits money or property or a tax on the estate of a person who has died...
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
2004 Indian Ocean earthquake
The 2004 Indian Ocean earthquake was an undersea megathrust earthquake that occurred at 00:58:53 UTC on Sunday, December 26, 2004, with an epicentre off the west coast of Sumatra, Indonesia. The quake itself is known by the scientific community as the Sumatra-Andaman earthquake...
, which took place on December 26.
Turkey
Ex post facto punishment is prohibited by Article 38 of the ConstitutionConstitution of Turkey
This article relates to a current event. See also the Turkish constitutional referendum, 2010The Constitution of the Republic of Turkey is Turkey's fundamental law. It establishes the organization of the government and sets out the principles and rules of the state's conduct along with its...
of Turkey
Turkey
Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...
.
United Kingdom
In the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, ex post facto laws are frowned upon, but are permitted by virtue of the doctrine of parliamentary sovereignty
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
. 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
Acts of Parliament (Commencement) Act 1793
The Acts of Parliament Act 1793 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...
.
Some laws are still passed retrospectively, in 1990 the Pakistan Act (which readmitted Pakistan to the Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
) 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.
Retrospective criminal laws are prohibited by Article 7 of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, 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. For example, the War Crimes Act 1991
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...
created an ex post facto jurisdiction of British courts over war crime
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
s committed during the Second World War
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
.
Taxation law has on multiple occasions been changed to retrospectively disallow tax avoidance
Tax avoidance
Tax avoidance is the legal utilization of the tax regime to one's own advantage, to reduce the amount of tax that is payable by means that are within the law. The term tax mitigation is a synonym for tax avoidance. Its original use was by tax advisors as an alternative to the pejorative term tax...
schemes.
United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the federal government is prohibited from passing ex post facto laws by clause 3 of Article I
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...
, section 9 of the U.S. Constitution and the states are prohibited from the same by clause 1 of Article I
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...
, section 10. susan b. anthony talked about the ex post facto law in her womenssuffrage speech. This is one of the very few restrictions that the United States Constitution made to both the power of the federal and state governments prior to the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. 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
Calder v. Bull
Calder v. Bull, 3 U.S. 386 , is a United States Supreme Court case in which the Court examined its authority to review state legislature decisions.-Background:...
, 3 U.S. 386 (1798), in which Justice Samuel Chase
Samuel Chase
Samuel Chase was an Associate Justice of the United States Supreme Court and earlier was a signatory to the United States Declaration of Independence as a representative of Maryland. Early in life, Chase was a "firebrand" states-righter and revolutionary...
established four categories of unconstitutional ex post facto laws. The case dealt with Article I, section 10, since it dealt with a Connecticut state law.
However, not all laws with ex post facto effects have been found to be unconstitutional. One current U.S. law that has an ex post facto effect is the Adam Walsh Child Protection and Safety Act
Adam Walsh Child Protection and Safety Act
The Adam Walsh Child Protection and Safety Act is a federal statute that was signed into law by U.S. President George W. Bush on July 27, 2006. The Walsh Act organizes sex offenders into three tiers and mandates that Tier 3 offenders update their whereabouts every three months with lifetime...
of 2006. This law, which imposes new registration requirements on convicted sex offenders, also applies to offenders whose crimes were committed before the law was enacted. The U.S. Supreme Court ruled in Smith v. Doe
Smith v. Doe
Smith v. Doe, , was a court case in the United States which questioned the constitutionality of the Alaska Sex Offender Registration Act's retroactive requirements. Under the Act, any sex offender must register with the Department of Corrections or local law enforcement within one business day of...
(2003) that forcing sex offenders to register their whereabouts at regular intervals and the posting of personal information about them on the Internet does not violate the constitutional prohibition against ex post facto laws, because this does not constitute any kind of punishment.
Another example is the Domestic Violence Offender Gun Ban
Domestic Violence Offender Gun Ban
The Domestic Violence Offender Gun Ban is an amendment to the Omnibus Consolidated Appropriations Act of 1997 enacted by the 104th United States Congress in 1996...
, where firearms prohibitions were imposed on those convicted of misdemeanor domestic violence offenses and subjects of restraining orders (which do not require a criminal conviction). These individuals can now be sentenced to up to 10 years in a federal prison
Federal prison
Federal prisons are run by national governments in countries where subdivisions of the country also operate prisons.In the United States federal prisons are operated by the Federal Bureau of Prisons. In Canada the Correctional Service of Canada operates federal prisons. Prison sentences in these...
for possession of a firearm, regardless of whether or not the weapon was legally possessed at the time the law was passed. Among those that it is claimed the law has affected is a father who was convicted of a misdemeanor of child abuse
Child abuse
Child abuse is the physical, sexual, emotional mistreatment, or neglect of a child. In the United States, the Centers for Disease Control and Prevention and the Department of Children And Families define child maltreatment as any act or series of acts of commission or omission by a parent or...
for spanking
Spanking
Spanking refers to the act of striking the buttocks of another person to cause temporary pain without producing physical injury. It generally involves one person striking the buttocks of another person with an open hand. When an open hand is used, spanking is referred to in some countries as...
his child, since anyone convicted of child abuse now faces a lifetime firearms prohibition. The law has been legally upheld because it is considered regulatory, not punitive—it is a status offense
Status offense
Two common definitions of a status offense or status crime are1. A status offense is an action that is prohibited only to a certain class of people, and most often applied to offenses only committed by minors....
.
Finally, Calder v. Bull
Calder v. Bull
Calder v. Bull, 3 U.S. 386 , is a United States Supreme Court case in which the Court examined its authority to review state legislature decisions.-Background:...
expressly stated that a law that "mollifies" a criminal act was merely retrospective and not an ex post facto law.
A large "exception" to the ex post facto prohibition can be found in administrative law
United States administrative law
United States administrative law encompasses a number of statutes and cases which define the extent of the powers and responsibilities held by administrative agencies of the United States Government. The executive, legislative, and judicial branches of the U.S. federal government cannot always...
, as federal agencies may apply their rules retroactively if Congress has authorized them to do so. Retroactive application is disfavored by the courts for a number of reasons, but Congress may grant agencies this authority through express statutory provision. Furthermore, when an agency engages in adjudication
Adjudication
Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved....
, it may apply its own policy goals and interpretation of statutes retroactively, even if it has not formally promulgated a rule
Rulemaking
In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...
on a subject.
Retroactive taxes are not ex post facto laws. Substantive due process challenges to retroactive tax laws are given rational basis review per United States v. Carlton.
Universal Declaration of Human Rights and related treaties
Article 11, paragraph 2 of the Universal Declaration of Human RightsUniversal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
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
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
, 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 under 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' RightsAfrican Charter on Human and Peoples' Rights
The African Charter on Human and Peoples' Rights is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent....
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 ManAmerican Declaration of the Rights and Duties of Man
The American Declaration of the Rights and Duties of Man was the world's first international human rights instrument of a general nature, predating the Universal Declaration of Human Rights by less than a year....
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
Most European states, and all European UnionEuropean Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
states, are bound by the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
. 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.
Quotations
Grammatical form and usage
The phrase isn't grammatically correct in Latin, as it consists of the preposition ex, the preposition post, and a nounNoun
In linguistics, a noun is a member of a large, open lexical category whose members can occur as the main word in the subject of a clause, the object of a verb, or the object of a preposition .Lexical categories are defined in terms of how their members combine with other kinds of...
with the wrong grammatical case
Grammatical case
In grammar, the case of a noun or pronoun is an inflectional form that indicates its grammatical function in a phrase, clause, or sentence. For example, a pronoun may play the role of subject , of direct object , or of possessor...
to agree with post. Indeed, the Latin for this phrase is actually two words, ex postfacto, literally, out of a postfactum (an after-deed), or more naturally, from a law passed afterward.
Therefore, ex post facto or ex postfacto is natively an adverbial phrase, a usage demonstrated by the sentence "He was convicted ex post facto (i.e., 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.
See also
- Nulla poena sine legeNulla poena sine legeNulla poena sine lege is a legal principle, requiring that one cannot be punished for doing something that is not prohibited by law. This principle is accepted as just and upheld by the penal codes of constitutional states, including virtually all modern democracies...
- the principle that no one may be punished for an act which is not against the law. - Rokotov–Faibishenko case