This paper will analyze one of the most fundamental rules of law in criminal law, the Principle of Legality under the European Court of Human Rights (ECtHR) found in Article 7 ECHR. “Nullum crimen sine lege, nulla poena sine lege” (“no crime without law, no punishment without law”- NCSL), is often referred to as the Principle of Legality in many legal contexts. It is considered a human right and also at the heart of many national criminal legal systems. It is a crucial element of legal defense to a criminal prosecution in which no crime or punishment can exist without a legal ground. It is a guarantee of human liberty; it ensures the fairness and transparency of the judicial authority and it protects individuals from state abuse and unjust treatment. The principle of legality (“nullum crimen sine lege, nulla poena sine lege”) is found in Article 7 of the ECHR and this paper will also examine the way in which the ECHR has developed the Principle of Legality to encompass three overlapping mechanisms which are: “…only the law can define a crime and prescribe a penalty; the prohibition on retrospective criminal law and the prohibition on the imposition of harsher penalties”.
The respect for nullum crimen sine lege is of upmost importance in the international criminal law context. NCSL is contiguous to the ECHR provisions on the prohibitions on slavery and torture. The principle is often associated with ensuring that all punishments are established before the commencement of any criminal prosecution and that the criminal action is penalized. Even though NCSL is the core of the rule of law in criminal law that is inalienable to every person some scholars have also associated the rule of NCSL to the pursuit of stifling governments, states, legal and judicial institutions from enacting ex post facto legislation. International criminal law has been criticized for ignoring this essential rule in times of emergency situations which many times the world has seen the ECtHR completely disregarding this Principle.
The absence in international criminal law of a rigorous manifestation of NCSL dates back to a time when the idea of individual criminal responsibility was from a tri-dimensional view: legal, moral and criminal. NCSL can be traced back to post-World War II (WWII) period, the victorious Allies essentially renounced suggestions from within that the Axis leaders and developed international criminal tribunals to prosecute German and Japanese suspects. Justice Robert Jackson said in the “Opening Statement for the United States of America, on the Subject of International Military Tribunal No. I” , “…one of the most significant tributes that power has ever paid to reason”. After the tribunals drew to a close, the international community began drafting rules to codify the Nuremberg Principles. The Nuremberg Principles which stated two fundamental rules:
“…the leaders, their advisors and helpers remain accountable for their crimes before mankind. Neither the sovereignty of the state they headed, nor their right to decide for themselves on how to run the state absolve them from this; 2)
“…heads of state, their advisors and helpers were individually and personally made accountable for their particular contribution to a particular crime. They were not allowed to hide behind their functions within the state or their national law”. Unfortunately, many of these efforts were never fully implemented within domestic legal systems because they were either abandoned during the Cold War period or permanently compromised by polarized negotiations. Notwithstanding its abandonment the NCSL principle still find its place in the progressive positive international law. The question today is if it can still serve its initial purpose.
In international law the concept of the Principle of Legality or NCSL with nearly identical wording exists in many treaties such as the European Convention for the Protection of Human Rights and...
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