Part II

Lavinia LEFTERACHE, More favourable criminal law
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment Article 7 embodies, inter alia, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege). The Court's first task is therefore to verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a provision of national or international law which made that act punishable. By the same token, Article 7 prohibits, firstly, the extension of the scope of existing offences to acts which previously were not criminal offences and, secondly, an extensive construction of the criminal law to the accused's detriment, for instance by analogy. Offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where the individual is able to determine from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable.

When speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statute law as well as case-law and implies qualitative requirements, including those of accessibility and foreseeability.

Keywords: nullum crimen, nulla poena, sine lege, law, accessibility and foreseeability of the law

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