LLB - Principles of Criminal Law

Criminal Law I
Cje
Lecture 6 & 7
Principles of Criminal Law and Criminal
Liability
Karolina Kremens, LL.M., Ph.D.

Wojciech Jasiński, Ph.D.
Department of Criminal Procedure
Faculty of Law, Administration and Economics
University of Wrocław
Lecture
PRINCIPLES OF CRIMINAL LAW AND CRIMINAL LIABILITY
Principle
1. A basic truth, law, or assumption

2. A basic or essential quality or element
determining intrinsic nature or
characteristic behavior
3. Fundamental norms, rules, or values that
represent what is desirable and positive for
a person, group, organization, or
community, and help it in determining the
rightfulness or wrongfulness of its actions.
Principles are more basic than policy and
objectives, and are meant to govern both.
Lecture
Principles of Criminal Law
Principles governing the range of criminal

law
Principle of minimum criminalisation

(the minimalist approach)
Lecture
Principles governing the range of criminal law

respect for human rights

(general priority of rights and freedoms)
the right not to be punished

(decision to criminalize and to impose punishment
needs special justification, exceeding what is
necessary in other cases, e.g. taxation)
Lecture

criminalisation as ultima ratio (last resort)

(criminal law should not be invoked unless other
techniques are appropriate)
no counter-productive criminalisation
(social costs should be analysed)
Lecture

Principle of liability for acts not ommissions
Criminalisation of omission needs a special justification

(positive duties)
German Criminal Code
Section 13
Omissions
(1) Whosoever fails to avert a result which is an element of a criminal
provision shall only be liable under this law if he is responsible under law
to ensure that the result does not occur, and if the omission is
equivalent to the realisation of the statutory elements of the offence
through a positive act.
(2) The sentence may be mitigated pursuant to section 49(1).
Lecture
Principle of liability for acts not ommissions
Criminalisation of ommission needs a special

justification (positive duties)
Polish Criminal Code

Art. 2.
Criminal consequences by ommission
Only a person with a specific legal duty to prevent criminal

consequences committed by omission bears criminal liability for an
offence with such consequences.
Lecture

Principles of criminal liability
1) Personal and individual liability

2) Mens rea principle (the principle of guilt)
3) Nullum crimen sine lege (certa, scripta) –
principle of legality
4) Nulla poena sine lege
5) Non-retroactivity of criminal law
(lex retro non agit)
6) Principle of proportionality
Lecture
Personal and individual liability
- non-transferable liability
- prohibition of collective liability

Lecture

Personal and individual liability – ECHR case-law
In the case of A.P., M.P. and T.P. v. Switzerland, 29 August 1997,
a number of heirs had been punished for a criminal offence
committed by the deceased. The Court considered that the
criminal sanction imposed on the heirs for tax fraud attributed
to the deceased was incompatible with the fundamental rule
of criminal law that criminal liability does not survive the person
who has committed the criminal act (ibid., § 48). Swiss law
explicitly acknowledged this principle, and the Court affirmed
that this rule was also required by the presumption of
innocence enshrined in Article 6 § 2 of the Convention.
Inheritance of the guilt of the dead is not compatible with the
standards of criminal justice in a society governed by the rule
of law. A system which punished persons for an offence
committed by another would be inconceivable.
Lecture

Personal and individual liability – ECHR case-law
That principle was reaffirmed in the case of Lagardère (Lagardère
v. France, no. 18851/07, 12 April 2012, § 77), in which the Court
reiterated that the rule that criminal liability does not survive the
person who has committed the criminal act is not only required by
the presumption of innocence enshrined in Article 6 § 2 of the
Convention, but also by the principle that inheritance of the guilt of
the dead is incompatible with the standards of criminal justice in a
society governed by the rule of law
The Court considers that the rule reiterated by it in the preceding
paragraph is also valid from the angle of Article 7 of the
Convention, which requires that no one can be held guilty of a
criminal offence committed by another. While it is true that
anyone must be able at any time to ascertain what is permitted
and what is prohibited via clear and detailed laws, a system which
punished persons for an offence committed by another would be
inconceivable.
Lecture
Mens rea principle (principle of guilt)

Nulla poena sine culpa
Strict liability offences – exception

Mens rea do not have to be proven for one or
more aspects of actus reus
Absolute liability offences - exception
no mens rea, no causation, no defences
Lecture
Nullum crimen sine lege

Sources:
Universal Declaration of Human Rights (1947)

Article 11.
(2) No one shall be held guilty of any penal offence on account of
any act or omission which did not constitute a penal 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 penal offence was
committed.
Lecture

Sources:
International Covenant on Civil and Political Rights (1966)
Article 15
1 . 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.
2. Nothing in this article shall prejudice the trial and punishment of
any person for any act or omission which, at the time when it
was committed, was criminal according to the general
principles of law recognized by the community of nations.
Lecture

Sources:
Article 4
1 . In time of public emergency which threatens the life of the
nation and the existence of which is officially proclaimed, the
States Parties to the present Covenant may take measures
derogating from their obligations under the present Covenant
to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with their
other obligations under international law and do not involve
discrimination solely on the ground of race, colour, sex,
language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15,
16 and 18 may be made under this provision.
Lecture

Sources:
European Convention on Human Rights (1950)
Article 7 – No punishment without law (non-derogable right)
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. (…)
This article shall not prejudice the trial and punishment of any
person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of
law recognised by civilised nations.
Lecture
Nulla poena sine lege

Sources:

Article 11.
committed.
Lecture

Sources:
Article 15
1 .(…). Nor shall a heavier penalty be imposed than the one
that was applicable at the time when the criminal
offence was committed. If, subsequent to the
commission of the offence, provision is made by law for
the imposition of the lighter penalty, the offender shall
benefit thereby.
Lecture

Sources:
Article 4
1 . In time of public emergency which threatens the life of the
nation and the existence of which is officially proclaimed, the
States Parties to the present Covenant may take measures
derogating from their obligations under the present Covenant
to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with their
other obligations under international law and do not involve
discrimination solely on the ground of race, colour, sex,
language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15,
16 and 18 may be made under this provision.
Lecture

Sources:
European Convention on Human Rights (1950)
Article 7 – No punishment without law
No one shall be held guilty of any criminal offence on account of

under national or international law at the time when it was
one that was applicable at the time the criminal offence was
committed.
A non-derogable right
Lecture

Sources:
EU Charter of Fundamental Rights
Article 49
Principles of legality and proportionality of criminal offences
and penalties
1. No one shall be held guilty of any criminal offence on account of
under national law or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than that
which was applicable at the time the criminal offence was
committed. If, subsequent to the commission of a criminal
offence, the law provides for a lighter penalty, that penalty
shall be applicable.
Lecture

Nullum crimen/nulla poena sine lege
European Court of Human Rights – General principles
CASE OF VYERENTSOV v. UKRAINE, 11/04/2013
62. The Court reiterates that 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
under Article 15 of the Convention in time of war or other
public emergency. 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 (see S.W. v. the United Kingdom, 22
November 1995, § 34, Series A no. 335-B, and C.R. v. the United
Kingdom, 22 November 1995, § 33, Series A no. 335-C).
Lecture

62. Accordingly, it embodies, in general terms, the principle that

only the law can define a crime and prescribe a penalty
(nullum crimen, nulla poena sine lege) (see Kokkinakis v.
Greece, 25 May 1993, § 52, Series A no. 260-A). While it
prohibits in particular extending the scope of existing offences
to acts which previously were not criminal offences, it also lays
down the principle that the criminal law must not be
extensively construed to an accused’s detriment, for instance
by analogy (see Coëme and Others v. Belgium, nos. 32492/96,
32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000-
VII; Achour v. France [GC], no. 67335/01, § 41, ECHR 2006-IV;
and Kononov v. Latvia [GC], no. 36376/04, § 185, ECHR 2010).
Lecture

63. 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 (see, mutatis mutandis, The Sunday Times
(no. 1), cited above, § 47; Kruslin v. France, 24 April 1990, § 29,
Series A no. 176-A; and Casado Coca v. Spain, 24 February
1994, § 43, Series A no. 285-A). In this connection, the Court has
always understood the term “law” in its “substantive” sense, not
its “formal” one. It has thus included both enactments of lower
rank than statutes and unwritten law (see, in particular, mutatis
mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June
1971, § 93, Series A no. 12). In sum, the “law” is the provision in
force as the competent courts have interpreted it.
Lecture

64. Furthermore, the term “law” implies qualitative requirements, including

those of accessibility and foreseeability (…). These qualitative requirements
must be satisfied as regards both the definition of an offence and the
penalty that the offence in question carries (see Achour [GC], cited above,
§ 41). An individual must know from the wording of the relevant provision
and, if need be, with the assistance of the courts’ interpretation thereof,
what acts and omissions will render him criminally responsible and what
penalty will be imposed for the act and/or omission in question (see,
among other authorities, Cantoni, cited above, § 29). Furthermore, a law
may still satisfy the requirement of “foreseeability” where the person
concerned has to take appropriate legal advice to assess, to a degree
that is reasonable in the circumstances, the consequences which a given
action may entail (see, among other authorities, Cantoni, cited above, §
35, and Achour [GC], cited above, § 54).
Lecture

65. The Court has acknowledged in its case-law that, however clearly
drafted a legal provision may be, in any system of law, including
criminal law, there is an inevitable element of judicial interpretation.
There will always be a need for elucidation of doubtful points and for
adaptation to changing circumstances. Again, whilst certainty is highly
desirable, it may bring in its train excessive rigidity and the law must be
able to keep pace with changing circumstances. Accordingly, many
laws are inevitably couched in terms which, to a greater or lesser
extent, are vague and whose interpretation and application are
questions of practice (see, mutatis mutandis, The Sunday Times (no. 1),
cited above, § 49, and Kokkinakis, cited above, § 40). The role of
adjudication vested in the courts is precisely to dissipate such
interpretational doubts as remain (see, mutatis mutandis, Cantoni,
cited above).
Lecture

European Court of Human Rights – Examples of cases
CASE OF KOKKINAKIS v. GREECE 25/05/1993
Applicant accused of proselytism - VAGUENESS
section 2 of Law no. 1672/1939

"1. Anyone engaging in proselytism shall be liable to imprisonment and a fine of
between 1,000 and 50,000 drachmas; he shall, moreover, be subject to police
supervision for a period of between six months and one year to be fixed by the court
when convicting the offender.
The term of imprisonment may not be commuted to a fine.
2. By ‘proselytism’ is meant, in particular, any direct or indirect attempt to intrude on
the religious beliefs of a person of a different religious persuasion (eterodoxos), with
the aim of undermining those beliefs, either by any kind of inducement or promise of
an inducement or moral support or material assistance, or by fraudulent means or by
taking advantage of his inexperience, trust, need, low intellect or naïvety.
3. The commission of such an offence in a school or other educational establishment
or a philanthropic institution shall constitute a particularly aggravating circumstance."
Lecture

CASE OF KOKKINAKIS v. GREECE 25/05/1993
The Court has already noted that the wording of many statutes is not
absolutely precise. The need to avoid excessive rigidity and to keep pace
with changing circumstances means that many laws are inevitably
couched in terms which, to a greater or lesser extent, are vague (…).
Criminal-law provisions on proselytism fall within this category. The
interpretation and application of such enactments depend on practice.
In this instance there existed a body of settled national case-law (…). This
case-law, which had been published and was accessible, supplemented
the letter of section 4 and was such as to enable Mr Kokkinakis to regulate
his conduct in the matter. As to the constitutionality of section 4 of Law no.
1363/1938, the Court reiterates that it is, in the first instance, for the national
authorities, and in particular the courts, to interpret and apply domestic law
(…). And the Greek courts that have had to deal with the issue have ruled
that there is no incompatibility.
Lecture

CASE OF WINGROVE v. THE UNITED KINGDOM 25/11/1996
Case concerning blasphemy - VAGUENESS
Case of Whitehouse v. Gay News Ltd and Lemon [1979], Lord Scarman
held that the modern law of blasphemy was correctly formulated in
Article 214 of Stephen’s Digest of the Criminal Law, 9th edition (1950).
This states as follows:
"Every publication is said to be blasphemous which contains any
contemptuous, reviling, scurrilous or ludicrous matter relating to God,
Jesus Christ or the Bible, or the formularies of the Church of England as
by law established. It is not blasphemous to speak or publish opinions
hostile to the Christian religion, or to deny the existence of God, if the
publication is couched in decent and temperate language. The test to
be applied is as to the manner in which the doctrines are advocated
and not to the substance of the doctrines themselves."
Lecture

Case concerning blasphemy
The House of Lords in that case also decided that the

mental element in the offence (mens rea) did not
depend upon the accused having an intent to
blaspheme. It was sufficient for the prosecution to
prove that the publication had been intentional and
that the matter published was blasphemous.
Lecture

41. It is observed that, in refusing a certificate for distribution of the

applicant’s video on the basis that it infringed a provision of the
criminal law of blasphemy, the British Board of Film Classification
acted within its powers under section 4 (1) of the 1984 Act (…).
42. The Court recognises that the offence of blasphemy cannot
by its very nature lend itself to precise legal definition. National
authorities must therefore be afforded a degree of flexibility in
assessing whether the facts of a particular case fall within the
accepted definition of the offence (…).
Lecture

43. There appears to be no general uncertainty or disagreement between

those appearing before the Court as to the definition in English law of the
offence of blasphemy, as formulated by the House of Lords in the case of
Whitehouse v. Gay News Ltd and Lemon (see paragraph 27 above).
Having seen for itself the content of the video work, the Court is satisfied
that the applicant could reasonably have foreseen with appropriate legal
advice that the film, particularly those scenes involving the crucified figure
of Christ, could fall within the scope of the offence of blasphemy. The
above conclusion is borne out by the applicant’s decision not to initiate
proceedings for judicial review on the basis of counsel’s advice that the
Panel’s formulation of the law of blasphemy represented an accurate
statement of the law (…).
Lecture

CASE OF JORGIC v. GERMANY 12/07/2007
Case concerning genocide (ethnic cleansing) - FORESEEABILITY
7. In 1969 the applicant, a national of Bosnia and Herzegovina

of Serb origin, entered Germany, where he legally resided until
the beginning of 1992. He then returned to Kostajnica, which
forms part of the city of Doboj in Bosnia, where he was born.
8. On 16 December 1995 the applicant was arrested when
entering Germany and placed in pre-trial detention on the
ground that he was strongly suspected of having committed
acts of genocide.
Lecture

Case concerning genocide (ethnic cleansing)
Article 220a
Genocide
1. Whoever, acting with the intent to destroy, in whole or in part, a
national, racial, religious or ethnical group as such,
(1) kills members of the group,
(2) causes serious bodily or mental harm to members of the group,
(3) places the group in living conditions capable of bringing about
their physical destruction in whole or in part,
(4) imposes measures which are intended to prevent births within the
group,
(5) forcibly transfers children of the group into another group, shall be
punished with life imprisonment.
Lecture

36. The applicant is the first person to be convicted of genocide by

German courts under Article 220a since the incorporation of that
Article into the Criminal Code. At the time the applicant committed his
acts in 1992, a majority of scholars took the view that genocidal “intent
to destroy a group” under Article 220a of the Criminal Code had to be
aimed at the physical-biological destruction of the protected group
(…). However, a considerable number of scholars were of the opinion
that the notion of destruction of a group as such, in its literal meaning,
was wider than a physical-biological extermination and also
encompassed the destruction of a group as a social unit (…).
Lecture

105. The Court notes that the domestic courts construed the “intent to
destroy a group as such” systematically in the context of Article 220a § 1 of
the Criminal Code as a whole, having regard notably to alternatives no. 4
(imposition of measures which are intended to prevent births within the
group) and no. 5 (forcible transfer of children of the group into another
group) of that provision, which did not necessitate a physical destruction of
living members of the group in question. The Court finds that the domestic
courts’ interpretation of “intent to destroy a group” as not necessitating a
physical destruction of the group, which has also been adopted by a
number of scholars (see paragraphs 36 and 47 above), is therefore
covered by the wording, read in its context, of the crime of genocide in the
Criminal Code and does not appear unreasonable.
Lecture

106. Furthermore, the Court, like the national courts, considers it

necessary, in order to determine the essence of the offence of
genocide, to take into consideration also the codification of the
prohibition of genocide in Article II of the Genocide
Convention, for the observance of which Article 220a had been
incorporated into the Criminal Code and in the light of which
the said Article was to be construed. As the wording of
Article 220a of the Criminal Code corresponds to that of Article
II of the Genocide Convention in so far as the definition of
genocide is concerned, the above reasoning with respect to
the scope of the prohibition of genocide equally applies.
Lecture

107. Moreover, the German courts’ interpretation

has not only been supported by a number of scholars
at the relevant time of the commission of the crime
(see paragraph 36 above), the United Nations
General Assembly also agreed with the wider
interpretation adopted by the German courts in the
present case in its Resolution 47/121 of 18 December
1992, (see paragraph 41 above).
Lecture

108. Consequently, the applicant’s acts, which he

committed in the course of the ethnic cleansing in
the Doboj region with intent to destroy the group of
Muslims as a social unit, could reasonably be
regarded as falling within the ambit of the offence of
genocide.
Lecture

109. In deciding, secondly, whether the domestic courts’ interpretation of

the crime of genocide could reasonably be foreseen by the applicant at
the material time, the Court notes that the applicant is the first person to be
convicted of genocide by German courts under Article 220a since the
incorporation of that Article into the Criminal Code in 1955. In these
circumstances the Court finds that, as opposed to cases concerning a
reversal of pre-existing case-law, an interpretation of the scope of the
offence which was – as in the present case – consistent with the essence of
that offence must, as a rule, be considered as foreseeable. Despite this, the
Court does not exclude that, exceptionally, an applicant could rely on a
particular interpretation of the provision being taken by the domestic courts
in the special circumstances of the case.
Lecture

111. The Court notes in this connection that at the material time the
scope of Article II of the Genocide Convention, on which Article 220a
of the Criminal Code is based, was contested amongst scholars as
regards the definition of “intent to destroy a group”. Whereas the
majority of legal writers took the view that ethnic cleansing, in the way
in which it was carried out by the Serb forces in Bosnia and
Herzegovina in order to expel Muslims and Croats from their homes, did
not constitute genocide, a considerable number of scholars suggested
that these acts did indeed amount to genocide (see paragraph 47
above).
Lecture

113. (…) the Court concludes that, while many authorities had favoured a
narrow interpretation of the crime of genocide, there had already been
several authorities at the material time which had construed the offence of
genocide in the same wider way as the German courts. In these
circumstances, the Court finds that the applicant, if need be with the
assistance of a lawyer, could reasonably have foreseen that he risked
being charged with and convicted of genocide for the acts he committed
in 1992. In this context the Court also has regard to the fact that the
applicant was found guilty of acts of a considerable severity and duration:
the killing of several people and the detention and ill-treatment of a large
number of people over a period of several months as the leader of a
paramilitary group in pursuit of the policy of ethnic cleansing.
Lecture

114. Therefore, the national courts’ interpretation of the crime of

genocide could reasonably be regarded as consistent with
the essence of that offence and could reasonably be foreseen
by the applicant at the material time. These requirements
being met, it was for the German courts to decide which
interpretation of the crime of genocide under domestic law
they wished to adopt. Accordingly, the applicant’s conviction
for genocide was not in breach of Article 7 § 1 of the
Convention.
Lecture

CASE OF STRELETZ, KESSLER AND KRENZ v. GERMANY 22/03/2001
Case concern shooting to people escaping from East Germany –
WHEATHER AN ACT IS AN OFFENCE
Three of the applicants, all German nationals, were senior officials

of the German Democratic Republic (GDR): Fritz Streletz, who
was born in 1926, was a Deputy Minister of Defence; Heinz
Kessler, who was born in 1920, was a Minister of Defence; Egon
Krenz, who was born in 1937, was President of the Council of
State.
All three applicants were convicted by the courts of the Federal
Republic of Germany (FRG), after German unification on 3
October 1990, under the relevant provisions of the GDR’s
Criminal Code, and subsequently those of the FRG’s Criminal
Code, which were more lenient than those of the GDR.
Lecture

Case concern shooting to people escaping from East Germany
Mr Streletz, Mr Kessler and Mr Krenz were sentenced to terms of

imprisonment of five-and-a-half years, seven-and-a-half years
and six-and-a-half years respectively for intentional homicide
as indirect principals (Totschlag in mittelbarer Täterschaft), on
the ground that through their participation in decisions of the
GDR’s highest authorities, such as the National Defence
Council or the Politbüro, concerning the regime for the
policing of the GDR’s border (Grenzregime), they were
responsible for the deaths of a number of people who had
tried to flee the GDR across the intra-German border between
1971 and 1989.
Lecture

Case concern shooting to people escaping from East Germany
The Court observed that its task was to consider, from the
standpoint of Article 7 § 1 of the Convention, whether, at the
time when they were committed, the applicants’ acts
constituted offences defined with sufficient accessibility and
foreseeability by the law of the GDR or international law.
The aswer was twice „yes”. Their actions, although legal

according to statutory rules were a violation of the right to life
enshrined in national constitution and international law and
punishable by criminal legal-regulations in East Germany.
Conviction was neither arbitrary nor unforseeable.
Lecture

Dragotoniu and Militaru-Pidhorni v. Romania - 77193/01

Judgment 24.5.2007 - ANALOGY
Facts: The two applicants, employees of a privately owned

commercial bank, were convicted under the Criminal Code of
accepting bribes. The applicants and the prosecution
appealed. The applicants claimed, inter alia, that the offences
had not been offences under domestic law at the material
time. Accepting bribes was an offence at the time only if
committed by a public servant or a person working for a State-
owned company, whereas they had been employees of a
private bank. The Court of Appeal allowed the prosecution’s
appeal and upheld the applicants’ conviction.
Lecture

Judgment 24.5.2007
Facts: While acknowledging that accepting bribes was an
offence under the Criminal Code only if committed by a public
servant or a person working for a State-owned company, it held
that in view of the Criminal Code and considering the purpose
of the law, accepting bribes was also an offence when
committed by employees of private firms, even prior to the
enactment of the new law. The purpose of the law was to
punish any person with professional obligations towards a legal
entity who disregarded those obligations in their dealings with
others. The Supreme Court upheld the Court of Appeal’s
decision.
Lecture


Judgment 24.5.2007
Law: The Supreme Court could not be accused of retroactive
application of the criminal law as it had expressly stated that it had
applied the law in force at the material time. However, it had never
previously been explicitly established that the accepting of bribes by
employees of privately owned commercial firms was a criminal
offence. Even though the applicants were in a profession where they
could seek legal advice, it would have been difficult, if not impossible,
for them to foresee the Supreme Court’s departure from precedent
and thus to know, at the time when they committed them, that their
acts might give rise to criminal sanctions. The Court of Appeal had
deliberately applied criminal law in an extensive manner.
Lecture

CASE OF C.R. v. THE UNITED KINGDOM 22/11/1995 , appl. 20190/92 -

FORESEEABILITY
Conviction of man for attempted rape of wife: no violation
Article 7 should be construed and applied, as follows from its

object and purpose, so as to provide effective safeguards
against arbitrary prosecution, conviction and punishment –
progressive development of criminal law through judicial
interpretation, elucidation, and adaptation to changing
circumstances not contrary to Article 7, provided consistent with
essence of offence and reasonably foreseeable.
Lecture

CASE OF C.R. v. THE UNITED KINGDOM 22/11/1995 , appl. 20190/92
Decisions of Court of Appeal and House of Lords upholding
conviction of applicant's attempted rape of wife continued line of
case-law development dismantling marital immunity for rape,
consistent with essence of offence as defined by section 1 (1) (a)
Sexual Offences (Amendment) Act 1976 – law had reached stage
where judicial recognition of absence of immunity reasonably
foreseeable.
Essentially debasing character of rape so manifest that conviction
for attempted rape of wife not at variance with object and
purpose of Article 7 – abandonment of marital immunity conforms
with civilised concept of marriage and fundamental objectives of
Convention, respect for human dignity and freedom.
Conclusion: no violation (unanimously).
Lecture

Camilleri v. Malta - 42931/10, Judgment 22.1.2013
Facts – In 2003 the applicant was charged with possession of illegal

drugs not intended for his exclusive use. The relevant domestic law
provided two different ranges of sentence for that offence, namely
four years to life imprisonment on conviction by the Criminal Court,
or six months to ten years on conviction by the Court of
Magistrates. Under domestic law, it was the public prosecutor who
decided in which court the accused would be tried. The applicant
was tried in the Criminal Court and sentenced to fifteen years’
imprisonment and a EUR 35,000 fine. The judgment was upheld on
appeal.
Lecture

Law – Article 7: While it was clear that the sentence imposed on the
applicant had been established by law and had not exceeded the
statutory limits, the law did not make it possible for him to know, before
the decision of the public prosecutor determining the court where he
was to be tried, which of the two ranges of sentence would apply to
him. The domestic case-law seemed to indicate that such decisions
were at times unpredictable. The applicant would not have been able
to know the punishment applicable to him even if he had obtained
legal advice on the matter, as the decision was solely dependent on
the prosecutor’s discretion to determine the trial court. The criteria to
be applied by the prosecutor when taking his decision were not
specified in any legislative text and had not been clarified by the
courts. The law did not provide any guidance on what would amount
to a more serious offence or a less serious one. The lack of such
guidelines had also been noted by the Constitutional Court.
Lecture

Thus, the law did not determine with any degree of precision
the circumstances in which a particular range of sentence
applied. The prosecutor had in effect an unfettered discretion
to decide which minimum penalty would be applicable with
respect to the same offence. His decision was inevitably
subjective and left room for arbitrariness, particularly given the
lack of procedural safeguards. The domestic courts were bound
by that decision and could not impose a sentence below the
minimum established by law despite any concerns they might
have as to the use of the prosecutor’s discretion. The relevant
legal provision had therefore failed to satisfy the foreseeability
requirement and provide effective safeguards against arbitrary
punishment.
Lecture
Non-retroactivity of criminal law (lex retro non agit)

Sources:

Article 11.
committed.
Lecture
Sources:
International Covenant on Civil and Politic Rights

European Convention on Human Rights
EU Charter of Fundamental Rights
Lecture
1) Prohibition of retroactive criminalisation

2) Prohibition of imposing heavier penalty than
provided by law
3) Obligation to apply lex mitior agit principle
Lecture

Prohibition of retroactive criminalisation
Veeber v. Estonia (no. 2) (application no. 45771/99), 21.01. 2003
On 7 October 1996 applicant was charged, as chairman of the board
of AS Giga and AS Tartu Jõujaam and as the owner of the former
company, under Article 148-1 § 7 of the Criminal Code, with: forgery
and fabrication of documents on five occasions from 1993-1994 to
show commercial interaction with a fictitious company; the use at the
end of 1994 and in 1995 of fictitious documents in relation to salary
payments; and, on 12 May 1995, concluding a sham contract to
circumvent tax laws.
On 13 October 1997 the applicant was found guilty as charged and
given a suspended prison sentence of three years and six months. In
convicting the applicant of tax evasion under Article 148-1 § 7 of the
Criminal Code, the court observed that the criminal acts started in the
third quarter of 1993 and that the last act began on 12 May 1995. It
considered that the acts constituted an ongoing crime. The applicant
was ordered to pay the city tax authorities 853,550 Estonian kroons.
Lecture

Prohibition of retroactive criminalisation
Veeber v. Estonia (no. 2) (application no. 45771/99), 21.01. 2003
The applicant appealed, arguing that Article 148-1 § 7 had been
applied retroactively, as it only entered into force on 13 January 1995.
Prior to that date, conviction under Article 148-1 could follow only if the
person concerned had been subjected to an administrative sanction
for the same action or had a previous criminal conviction for the same
offence. His appeals were rejected.
The European Court of Human Rights observed that a considerable
number of the acts of which the applicant was convicted fell
exclusively within the period prior to January 1995 and that the
sentence imposed took into account the acts committed both before
and after January 1995.
Finding that the Estonian courts applied retrospectively the 1995 law to
behaviour which previously did not constitute a criminal offence, the
European Court of Human Rights held, unanimously, that there had
been a violation of Article 7 § 1
Lecture

Prohibition of imposing heavier penalty than
provided by law
Maktouf and Damjanović v. Bosnia and Herzegovina [GC] - 2312/08
and 34179/08, Judgment 18.7.2013 [GC]
Facts – Both applicants were convicted by the Court of Bosnia and

Herzegovina (“the State Court”) of war crimes committed against
civilians during the 1992-1995 war. War crimes chambers were set up
within the State Court in early 2005 as part of the International Criminal
Tribunal for the former Yugoslavia’s completion strategy. The State
Court, which consists of international and national judges, can decide
to take over war crime cases because of their sensitivity or complexity,
and can transfer less sensitive and complex cases to the competent
courts of the two entities of Bosnia and Herzegovina (the Entity courts”)
Lecture

provided by law
and 34179/08, Judgment 18.7.2013 [GC]
The first applicant (Mr Maktouf) was convicted by the State Court in
July 2005 of aiding and abetting the taking of two civilian hostages as
a war crime and sentenced to five years’ imprisonment under the 2003
Criminal Code of Bosnia and Herzegovina (“the 2003 Criminal Code”).
In April 2006, an appeals chamber of the court confirmed his
conviction and the sentence after a fresh hearing with the
participation of two international judges. The second applicant
(Mr Damjanović), who had taken a prominent part in the beating of
captured Bosniacs in Sarajevo in 1992, was convicted in June 2007 of
torture as a war crime and sentenced to eleven years’ imprisonment
under the 2003 Criminal Code.
Lecture

provided by law

and 34179/08, Judgment 18.7.2013 [GC]
In their applications to the European Court, both men complained,

inter alia, that the State Court had retroactively applied to them a
more stringent criminal law, the 2003 Criminal Code, than that which
had been applicable at the time of their commission of the offences,
namely the 1976 Criminal Code of the Socialist Federal Republic of
Yugoslavia (“the 1976 Criminal Code”) and that they had received
heavier sentences as a result.
Lecture

provided by law

and 34179/08, Judgment 18.7.2013 [GC]
Law – Article 7: What was at issue was not the lawfulness of their
convictions but the different sentencing frameworks applicable to war
crimes under the two Codes.
The State Court had sentenced the first applicant to five years’
imprisonment; the lowest possible sentence for aiding and abetting
war crimes under the 2003 Code, whereas under the 1976 Code his
sentence could have been reduced to one year. Likewise, the second
applicant had been sentenced to eleven years’ imprisonment, slightly
above the ten-year minimum applicable in his case under the 2003
Code. However, under the 1976 Code, it would have been possible to
impose a sentence of only five years.
Lecture

provided by law
and 34179/08, Judgment 18.7.2013 [GC]
As the applicants had received sentences at the lower end of

the sentencing range, it was of particular relevance that the
1976 Code was more lenient in respect of the minimum
sentence. In this context, the fact that the 2003 Code may have
been more lenient as regards the maximum sentence was
immaterial as the crimes of which the applicants had been
convicted clearly did not belong to the category to which the
maximum sentence was applicable.
Lecture

provided by law
and 34179/08, Judgment 18.7.2013 [GC]
Further, while the Court accepted that the applicants’ sentences were
within the latitude of both the 1976 Criminal Code and the 2003
Criminal Code, so that it could not be said with any certainty that
either applicant would have received lower sentences had the 1976
Code been applied, the crucial point was that the applicants could
have received lower sentences if it had been. Accordingly, since there
was a real possibility that the retroactive application of the 2003 Code
had operated to the applicants’ disadvantage as regards sentencing,
it could not be said that they had been afforded effective safeguards
against the imposition of a heavier penalty.
Lecture

provided by law
and 34179/08, Judgment 18.7.2013 [GC]
Nor was the Court able to agree with the Government’s argument that
if an act was criminal under “the general principles of law recognised
by civilised nations” (Article 7 § 2 of the Convention) at the time it was
committed then the rule of non-retroactivity of crimes and punishments
did not apply. That argument was inconsistent with the intention of the
drafters of the Convention that Article 7 § 1 contained the general rule
of non-retroactivity and that Article 7 § 2 was only a contextual
clarification, included to ensure that there was no doubt about the
validity of prosecutions after the Second World War in respect of crimes
committed during that war. It was thus clear that the drafters of the
Convention had not intended to allow for any general exception to
the rule of non-retroactivity.
Lecture

provided by law
and 34179/08, Judgment 18.7.2013 [GC]
With regard to the Government’s argument that a duty under
international humanitarian law to punish war crimes adequately
required that the rule of non-retroactivity be set aside in the applicants’
case, the Court noted that that rule also appeared in the Geneva
Conventions and their Additional Protocols. Moreover, as the
applicants’ sentences were within the compass of both the 1976 and
2003 Criminal Codes, the Government’s argument that the applicants
could not have been adequately punished under the former Code
was clearly unfounded.
Accordingly, there had been a violation of Article 7. However, the
Court emphasised that that conclusion did not indicate that lower
sentences ought to have been imposed, but simply that the
Lecture

provided by law
M. v. Germany - 19359/04
Judgment 17.12.2009
Facts – In 1986 the applicant was convicted of attempted

murder and robbery and sentenced to five years’ imprisonment.
In addition, the trial court ordered his placement in preventive
detention, a measure considered necessary in view of the
applicant’s strong propensity to commit offences which
seriously damaged his victims’ physical integrity. He had already
been convicted and imprisoned on numerous occasions,
notably for attempted murder, theft, assault and blackmail.
Lecture

provided by law
The court of appeal confirmed that the applicant’s dangerousness
necessitated his continued preventive detention and added that
such detention was not contrary to the prohibition of retrospective
provisions in the criminal law. The applicant lodged an unsuccessful
constitutional complaint. The Federal Constitutional Court held, in
particular, that the abolition of the maximum period of detention,
and the application of this measure to criminals who had been
placed in preventive detention prior to the entry into force of the
new legislation and had not yet finished serving their sentences,
were compatible with the Constitution. It also considered that the
retrospective application of the amended provision of the Criminal
Code was not disproportionate.
Lecture

provided by law
Facts –The applicant finished serving his prison sentence in August 1991
and has been in preventive detention ever since. In April 2001 a court
refused to release him on licence and ordered that he be kept in
preventive detention beyond 8 September 2001, the date the
maximum ten-year period previously authorised for such detention was
due to expire. In making that order the court applied the Criminal
Code as amended by a law which had entered into force in January
1998. It stated that the amended provision was applicable also to
prisoners who had been placed in preventive detention prior to the
law’s entry into force and added that, on account of the gravity of the
applicant’s criminal record and the likelihood of his committing further
offences, his continued placement in preventive detention was not
disproportionate.
Lecture

provided by law
The Court had to determine whether the applicant’s preventive
detention constituted a “penalty” within the meaning of this provision.
Under German law, such a measure was not considered a penalty to
which the absolute ban on retrospective punishment applied, but
rather a measure of correction and prevention aimed at protecting
the public from a dangerous offender. However, just like a prison
sentence, preventive detention entailed a deprivation of liberty.
Persons subject to preventive detention were detained in ordinary
prisons, albeit in separate wings. Minor alterations to the detention
regime compared to that of an ordinary prisoner serving his sentence,
including privileges such as detainees’ right to wear their own clothes,
could not mask the fact that there was no substantial difference
between the execution of a prison sentence and that of a preventive-
detention order.
Lecture

provided by law
There was currently no sufficient psychological support specifically aimed
at prisoners in preventive detention to secure the prevention of offences by
the persons concerned. The Court could not therefore subscribe to the
Government’s argument that preventive detention served a purely
preventive, and no punitive, purpose. Pursuant to the Criminal Code,
preventive-detention orders could be made only against persons who had
repeatedly been found guilty of criminal offences of a certain gravity.
Given its unlimited duration, preventive detention might well be understood
as constituting an additional punishment and entailed a clear deterrent
element. Courts belonging to the criminal-justice system were involved in
making and implementing orders for preventive detention. The suspension
of preventive detention on probation was subject to a court’s finding that
there was no danger that the detainee would commit further serious
offences, a condition which could be difficult to fulfil.
Lecture

provided by law
This measure appeared, therefore, to be among the most severe – if
not the most severe – which could be imposed under the German
Criminal Code. In view of the foregoing, the Court concluded that
preventive detention under the German Criminal Code was to be
qualified as a “penalty” for the purposes of Article 7 § 1 of the
Convention.
The Court was further unconvinced by the Government’s argument
that the extension of the applicant’s detention merely concerned the
execution of the penalty imposed on the applicant by the sentencing
court. Given that at the time the applicant committed the offence he
could have been kept in preventive detention only for a maximum of
ten years, the extension had constituted an additional penalty which
had been imposed on him retrospectively, under a law enacted after
he had committed his offence.
Lecture

Obligation to apply lex mitior agit principle
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.
No explicit lex mitior agit principle (unlike ICCP, EU Charter)

Lecture

Scoppola v. Italy (no. 2) [GC] - 10249/03, Judgment 17.9.2009
Facts – In 1999 the applicant killed his wife and injured one of
his children. After an investigation the prosecution service
requested that he be committed to stand trial on charges of
murder, attempted murder, ill-treatment of his family and
unauthorised possession of a firearm. At the time when the
offences were committed they attracted a sentence of life
imprisonment with daytime isolation. At the hearing before the
preliminary hearings judge the applicant was granted his
request to be tried under the summary procedure, a simplified
process which entailed a reduction of sentence in the event of
conviction. In the version in force at that time Article 442 § 2 of
the Code of Criminal Procedure (“the CCP”) provided that, if
the crime committed by the defendant was punishable by life
imprisonment, the appropriate sentence should be thirty years.
Lecture

Facts – The preliminary hearings judge found the applicant guilty and
noted that he was accordingly liable to life imprisonment; however, as
the applicant had opted for the summary procedure, the judge
sentenced him to a term of thirty years. The Public Prosecutor’s Office
at the Court of Appeal appealed on points of law against the
preliminary hearings judge’s judgment, arguing that he should have
applied Article 7 of Legislative Decree no. 341 of 24 November 2000,
which had entered into force on the very day when the applicant was
convicted. The prosecution contended in particular that the said
Article 7 had amended Article 442 of the CCP and now provided that,
in the event of trial under the summary procedure, life imprisonment
was to be substituted for life imprisonment with daytime isolation if
there were “cumulative offences” or a “continuous offence”. In 2002
the Assize Court of Appeal sentenced the applicant to life
imprisonment, ruling firstly that the new procedural rule was applicable
to all pending proceedings, and secondly that the applicant could
have withdrawn his request to be tried under the summary procedure
and have stood trial under the ordinary procedure.
Lecture

Law – Article 7: European Commission of Human Rights had expressed
the opinion that, unlike Article 15 § 1 in fine of the United Nations
Covenant on Civil and Political Rights, Article 7 of the Convention
did not guarantee the right to a more lenient penalty provided for
in a law subsequent to the offence. Repeating that ruling, the
Court had reiterated that Article 7 does not afford the right of an
offender to application of a more favourable criminal law.
However, since 1978, a consensus had gradually emerged in
Europe and internationally around the view that application of a
criminal law providing for a more lenient penalty, even one
enacted after the commission of the offence, had become a
fundamental principle of criminal law. In reaching that finding the
Court referred to the American Convention on Human Rights, the
European Union’s Charter of Fundamental Rights, the case-law of
the Court of Justice of the European Communities, the Statute of
the International Criminal Court and the case-law of the
International Criminal Tribunal for the former Yugoslavia.
Lecture

Law – In the Court’s opinion, it was consistent with the principle of the
rule of law, of which Article 7 formed an essential part, to expect a
trial court to apply to each punishable act the penalty which the
legislator considered proportionate. Inflicting a heavier penalty for
the sole reason that it was prescribed at the time of the
commission of the offence would mean applying to the
defendant’s detriment the rules governing the succession of
criminal laws in time. In addition, it would amount to disregarding
any legislative change favourable to the accused which might
have come in before the conviction and continuing to impose
penalties which the State – and the community it represented –
now considered excessive. The Court noted that the obligation to
apply, from among several criminal laws, the one whose provisions
were the most favourable to the accused was a clarification of
the rules on the succession of criminal laws, which was in accord
with another essential element of Article 7, namely the
foreseeability of penalties.
Lecture

Law – The Court accordingly took the view that it was
necessary to depart from the case-law established by
the Commission in the case of X v. Germany and affirm
that Article 7 § 1 of the Convention guaranteed not only
the principle of non-retrospectiveness of more stringent
criminal laws but also, and implicitly, the principle of
retrospectiveness of the more lenient criminal law. That
principle was embodied in the rule that where there
were differences between the criminal law in force at
the time of the commission of the offence and
subsequent criminal laws enacted before a final
judgment was rendered, the courts were required to
apply the law whose provisions were most favourable to
the defendant.
Violation (11votes to 6)
Lecture
Principle of proportionality
Prohibition of inhuman or degrading punishment

Article 3 ECHR
Article 7 ICCPR
Article 4 EU Charter
Prohibition of grossly disproportionate to the offense
Amendment VIII to American Constitution
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
„Conditions [of isolation] must not involve the wanton
and unnecessary infliction of pain, nor may they be
grossly disproportionate to the severity of the crime
warranting imprisonment” US Supreme Court.

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Criminal Law I

Karolina Kremens, LL.M., Ph.D.

1. A basic truth, law, or assumption

Principles of Criminal Law

Principles governing the range of criminal

Principle of minimum criminalisation

Principles of Criminal Law

Principles governing the range of criminal law

Principle of minimum criminalisation

respect for human rights

the right not to be punished

Principles of Criminal Law

Principles governing the range of criminal law

Principle of minimum criminalisation

criminalisation as ultima ratio (last resort)

Principles of Criminal Law

Principle of liability for acts not ommissions

Criminalisation of omission needs a special justification

Principles of Criminal Law

Principle of liability for acts not ommissions

Criminalisation of ommission needs a special

Polish Criminal Code

Only a person with a specific legal duty to prevent criminal

Principles of Criminal Law

1) Personal and individual liability

Principles of Criminal Law

Principles of criminal liability

Personal and individual liability

- prohibition of collective liability

Principles of Criminal Law

Principles of Criminal Law

Principles of Criminal Law

Principles of criminal liability

Mens rea principle (principle of guilt)

Strict liability offences – exception

Principles of Criminal Law

Nullum crimen sine lege

Universal Declaration of Human Rights (1947)

Principles of Criminal Law

Principles of Criminal Law

Principles of Criminal Law

Article 7 – No punishment without law (non-derogable right)

No one shall be held guilty of any criminal offence on account of

Principles of Criminal Law

Nulla poena sine lege

Universal Declaration of Human Rights (1947)

Principles of Criminal Law

Principles of Criminal Law

Principles of Criminal Law

Article 7 – No punishment without law

No one shall be held guilty of any criminal offence on account of

Principles of Criminal Law

Principles of Criminal Law

CASE OF VYERENTSOV v. UKRAINE, 11/04/2013

62. The Court reiterates that the guarantee enshrined in Article 7,

Principles of Criminal Law

62. Accordingly, it embodies, in general terms, the principle that

Principles of Criminal Law

63. When speaking of “law” Article 7 alludes to the very same

Principles of Criminal Law

64. Furthermore, the term “law” implies qualitative requirements, including

Principles of Criminal Law

Principles of Criminal Law

section 2 of Law no. 1672/1939