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Anex post facto law[1] is alaw that retrospectively changes the legal consequences or status of actions that were committed, or relationships that existed, before the enactment of the law. Incriminal law, it maycriminalize actions that were legal when committed; it may aggravate acrime by bringing it into a more severe category than it was in when it was committed; it may change thepunishment prescribed for a crime, as by adding new penalties or extending sentences; it may extend thestatute of limitations; or it may alter therules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.
Conversely, a form ofex post facto law called anamnesty law may decriminalize certain acts. Alternatively, rather than redefining the relevant acts as non-criminal, it may simply prohibit prosecution; or it may enact that there is to be no punishment, but leave the underlying conviction technically unaltered. Apardon has a similar effect, except it applies in just one case instead of a class of cases. Other legal changes may alleviate possible punishments retroactively, for example by replacing the death sentence with lifelong imprisonment. Such legal changes are also known by the Latin termin mitius.[2]
Somecommon-lawjurisdictions do not permit retroactive criminal legislation, though newprecedent generally applies to events that occurred before the judicial decision.Ex post facto laws are expressly forbidden by theUnited States Constitution in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws). In some nations that follow theWestminster system of government,ex post facto laws may be possible, because the doctrine ofparliamentary supremacy allowsParliament to pass any law it wishes, within legal constraints.[clarification needed][citation needed] In a nation with an entrenchedbill of rights or a writtenconstitution,ex post facto legislation may be prohibited or allowed, and this provision may be general or specific. For example, Article 29 of the Constitution of Albania explicitly allows retroactive effect for laws that alleviate possible punishments.
Ex post facto criminalization is prohibited byArticle 7 of the European Convention on Human Rights, Article 15(1) of theInternational Covenant on Civil and Political Rights,[3] andArticle 9 of the American Convention on Human Rights.[4] While American jurisdictions prohibitex post facto laws, European countries apply the principle oflex mitior ("the milder law"). It provides that, if the law has changed after an offense was committed, the version of the law that applies is the one that is more advantageous for the accused. This means thatex post facto laws apply in European jurisdictions to the extent that they are the milder law.[5]
Australia has no strong constitutional prohibition onex post facto laws, although narrowly retrospective laws might violate the constitutionalseparation of powers principle. Australian courts normally interpret statutes with a strong presumption that they do not apply retrospectively.
Retrospective laws designed to prosecute what was perceived to have been a blatantly unethical means oftax avoidance were passed in the early 1980s by theFraser government (seeBottom of the harbour tax avoidance). Similarly, legislationcriminalising certain war crimes retrospectively has been held to be constitutional (seePolyukhovich v Commonwealth).
Australia participated in drafting theUniversal Declaration of Human Rights and was an original signatory in 1948.[6][7] The Declaration includes a prohibition on retrospectively holding anyone guilty of apenal offence that was not an offence at the time it was committed.[8] TheAustralian Human Rights Commission states the Declaration is an "expression of the fundamental values which are shared by all members of the international community" but "does not directly create legal obligations for countries."[9]
Australia is a party to theInternational Covenant on Civil and Political Rights.[10] The implementation of retrospective criminal laws is expressly prohibited by the Covenant.[11] Australia is also a party to theOptional Protocol to the International Covenant on Civil and Political Rights.[12] The Protocol enables individuals subject to thejurisdiction of astate party to filecomplaints with theUnited Nations Human Rights Committee for that state party's non-compliance with the International Covenant on Civil and Political Rights.[13]
According to the 5th Article, section XXXVI[14] of theBrazilian Constitution, laws cannot haveex post facto effects that affect acquired rights, accomplished juridical acts andres judicata.
The same article in section XL[14] prohibitsex post factocriminal laws. Like France, there is an exception when retroactive criminal laws benefit the accused person.
InCanada,ex post facto criminal laws are constitutionally prohibited bysection 11(g) of theCharter 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. Due tosection 1 andsection 33 of theCharter of Rights and Freedoms these rights are not absolute, and may be overridden.
The Canadasex offender registry, which went into effect on December 15, 2004, is somewhat retroactive. When the registry was created, all offenders who were on theOntario sex offender registry, which was created in 2001, were required to register on the national registry. In addition, sex offenders in all provinces who were serving a sentence (whether imprisoned or on probation or parole) on December 15, 2004, were required to register, regardless of when their offense and conviction occurred. However, the registry was not retroactive to anybody who had completed their sentence by late 2004 and was not on the Ontario registry.[15] Canadian courts have never ruled on the somewhat retroactive nature of the sex offender registry, since this seems to have never been challenged.
Sex offender registration was not mandatory for sex offenders until 2011, and had to be ordered by a judge.[16][15][17] Sex offender registration was seemingly mandatory for people convicted before December 15, 2004, who were serving a sentence on that date, but was only optional for sex offenders convicted between December 15, 2004, and January 1, 2011.
Because section 11 of the Charter is among the sections that can be overridden undersection 33 (the notwithstanding clause), Parliament could in theory enactex post facto laws by invoking section 33. However, the federal Parliament, which has exclusive jurisdiction over criminal law, has never attempted to enact anex post facto law (or any other law) using section 33.
The Charter prohibition applies only to criminal law. Changes tocivil law in Canada can be, and occasionally are, enactedex post facto. In one example, convicted murdererColin Thatcher was ordered to forfeit proceeds from a book he had published (after being paroled from prison) under aSaskatchewan law. Although the law was passed long after Thatcher's murder conviction, the courts have ruled that such laws prescribe onlycivil penalties (as opposed to additional criminal penalties) and are thus not subject to Charter restrictions.
Article 90 of theConstitution of Croatia states that "only individual provisions of a law may have a retroactive effect for exceptionally justified reasons". According to Croatian legal scholarBranko Smerdel [hr], this means that "a law cannot be applied retroactively as a whole, and regulations enacted pursuant to statutory authority can never be applied retroactively".[18]
Following theliberation of Denmark fromNazi occupation in 1945, theFolketing, heavily influenced by theFrihedsråd, passed aspecial law (Lov Nr. 259 af 1. Juni 1945 om Tillæg til Borgerlig Straffelov angaaende Forræderi og anden landsskadelig Virksomhed, colloquiallylandsforræderloven (the traitor law) orstrafferetstillægget (the penal code addendum)), temporarily reintroducing thedeath penalty (previously abolished in 1930) for acts of treason committed during German occupation. Passed on 1 June 1945, the law applied to actions performed subsequent to 9 April 1940, unless those actions were done under orders from the government prior to 29 August 1943. With this authorization, 103 death sentences were issued, of which 46 were carried out.[19]
Generally, the Finnish legal system does not permitex post facto laws, especially those that would expand criminal responsibility. They are not expressly forbidden; instead, the ban is derived from more general legal principles and basic rights. In civil matters, such as taxation,ex post facto laws may be made in some circumstances.
Historically there have been three exceptional instances whenex post facto criminal laws have been used in Finland.
InFrance, so-called "lois rétroactives" (retroactive laws) are technically prohibited by Article 2 of theCode Civil, which states that: "Legislation provides only for the future; it has no retrospective operation".[20] In practice, however, since the Code Civil does not have the status of constitutional legislation and can therefore be overruled by subsequent laws, theConseil Constitutionnel has determined that retroactive laws can be passed within certain limits – such as in the case of financial or tax legislation –, particularly where it is considered to be in the "general interest"; this has been demonstrated by a series of decisions handed down by the Conseil Constitutionnel concerning retroactive tax laws.[21]
However, in criminal law,ex post facto sanctions are effectively forbidden as per Article 112-1 of theFrench Penal Code, except in cases wherein the retroactive application benefits the accused person (called retroactivityin mitius).[22] They are also considered unconstitutional, since the principle of non-retroactivity is laid down in Article 8 of theDeclaration of the Rights of Man and of the Citizen, which has constitutional status under French law.[23] Theépuration légale trials held after the 1944liberation of France introduced the status ofindignité nationale forNazi collaborators as a way to avoidex post facto law.
Article 103 of theGerman basic law requires that an act may be punished only if it has already been punishable by law at the time it was committed (specifically: bywritten law,Germany following civil law).
Robert A. Taft, at the time a U.S. Senator from Ohio, asserted that theNuremberg Trials followingWorld War II were based onex post facto law because the Allies did not negotiate theNuremberg Charter, which defined crimes against humanity and created the International Military Tribunal, until well after the acts charged. Others, including the International Military Tribunal, argued that the London Charter merely restated and provided jurisdiction to prosecute offenses that were already made unlawful by theKellogg–Briand Pact, theCovenant of the League of Nations, and the variousHague Conventions.[citation needed]
William O. Douglas complained that the Allies were guilty of "substituting power for principle" at Nuremberg Trials because the actions of the defendants were lawful in the 1930s Germany. He contended that the Nuremberg Trials were implementing laws after the fact (that is, ex post facto) "to suit the clamor of the time." American Chief JusticeHarlan Stone, likewise, called the Nuremberg Trials a "fraud" because of the ex post facto laws.[24]
The problem ofex post facto law was also relevant in the 1990s afterGerman reunification as there was a discussion about the trials againstEast Germanborder troops who killed fugitives on theInner-German border (Mauerschützen-Prozesse –Wall-shooters'/ -guards' trials). German courts in these cases recurred to theRadbruch formula.[25]
In 2010, theHungarian National Assembly established a 98% punitive tax on any income over two million forints received either as a retirement package or as severance pay in the previous five years in the government sector.[26]
In India, without using the expression "ex post facto law", the underlying principle has been adopted in the article 20(1) of theIndian Constitution in the following words:
No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which have been inflicted under the law in force at the time of commission of the offence.
Further, what article 20(1) prohibits is conviction and sentence under anex post facto law for acts done prior thereto, but not the enactment or validity of such a law. There is, thus, a difference between the Indian and the American positions on this point; whereas in the United States, anex 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.[27]
An example for retrospective law in India is theKarnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978[28] in the state ofKarnataka.
TheIndonesian Constitution prohibits trying citizens under retroactive laws in any circumstance. This was tested in 2004 when the conviction ofMasykur Abdul Kadir, one of theBali bombers, under retroactiveanti-terrorist legislation was quashed.[29]
Ex post facto laws, in all contexts, are prohibited by Article 169 (Chapter 11) of theIranian Constitution.
During theIrish Civil War,Anti-Treaty IRA membersRory O'Connor,Liam Mellows,Richard "Dick" Barrett andJoseph McKelvey were executed ex post facto and without trial, just two days into the existence of theIrish Free State. Despite being imprisoned for over four months, following their deaths theThird Dáil retrospectively approved their executions for a crime that had only been legislated against. Largely, the executions were considered retribution for the assassination of the legislator, DeputySeán Hales TD the previous day.
The imposition of retroactive criminal sanctions is prohibited in the subsequentIrish Constitution, introduced byEamonn De Valera, in Article 15.5.1°. 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, theIrish Supreme Court having found that such a right is a constitutionally protected property right.
Israel enacted the 1950Nazis and Nazi Collaborators (Punishment) Law for the purpose of punishing acts that occurred during theSecond World War and theHolocaust, when Israel did not exist as a state. The law was used to punishAdolf Eichmann and others.[citation needed]
Article 25, paragraph 2, of theItalian Constitution, establishing that "nobody can be punished but according to a law come into force before the deed was committed", prohibits indictment pursuant a retroactive law. Article 11 of preliminary provisions to theItalian Civil Code and Article 3, paragraph 1, of the Statute of taxpayer's rights, prohibit retroactive laws on principle: such provisions can be derogated, however, by acts having force of the ordinary law; on the contrary, non-retroactivity in criminal law is thought absolute.[30]
Article 39 of theconstitution of Japan prohibits the retroactive application of laws. Article 6 ofCriminal Code of Japan further states that if a new law comes into force after the deed was committed, the lighter punishment must be given.
Lithuania has no constitutional prohibition onex post facto laws. However, as a signatory of theEuropean Convention on Human Rights and as a member of the European Union whoseCharter of Fundamental Rights has the effect of law, any retroactive law could still be struck down. Retroactive criminal sanctions are prohibited by Article 2, Part 1 (Chapter 1) of theCriminal Code of theRepublic of Lithuania. Retroactive administrative sanctions are prohibited by Article 8 of the Administrative Code of the Republic of Lithuania.
Lithuanian lawyer Dainius Žalimas contends that there has been retroactive application of the law on Genocide (and subsequently adopted articles of the Criminal Code) against participants in Soviet repressions against Lithuanian guerilla fighters and their supporters, and gives examples of such decisions. The Article 99 of the Criminal Code of the Republic of Lithuania was introduced only on September 26, 2000, and therefore can't be used in events of 1944–1953.
According to the first and second paragraphs of the 14th Article of theMexican Constitution, retroactive application of the law is prohibited if it is detrimental to a person's rights, but a new law can be applied if it benefits the person.
Article 4 of the Law on General Provisions (in effect since 1838) states that "The law has no retroactive effect".[31]
Article 1 ofCriminal Law states that no act is punishable without a pre-existing law, and that in the case an act was punishable but the law was changed after the criminal act the "most favorable" (to the suspect) of the two laws will apply.[32]
InCivil Law there is no such provision.
Section 7 of the Interpretation Act 1999 stipulates that enactments do not have retrospective effect. TheNew Zealand Bill of Rights Act 1990 also affirms New Zealand's commitment to theInternational Covenant on Civil and Political Rights andUniversal Declaration of Human Rights, with section 26 preventing the application of retroactive penalties. This is further reinforced under section 6(1) of the current Sentencing Act 2002 which provides, "[p]enal enactments not to have retrospective effect to disadvantage of offender" irrespective of any provision to the contrary.
Section 26 of the Bill of Rights and the previous sentencing legislation, the Criminal Justice Act 1985, caused significant digression among judges when theNew 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 ofR v Pora andR v Poumako.
Article 97 of theNorwegian 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.[33]
Article 12 of theConstitution of Pakistan prohibits any law to be given retroactive effect by stating:[34]
The 1987Constitution of the Philippines categorically prohibits the passing of anyex post facto law. Article III (Bill of Rights), Section 22 specifically states: "Noex post facto law orbill of attainder shall be enacted."
However, theCybercrime Prevention Act, which went into effect on October 3, 2012, is criticized for beingex post facto.[citation needed]
Retroactive application of law is prohibited by the Article 3 of the Polishcivil code, and thelegal rule prohibiting such retroactive application is commonly memorised as aLatin sentenceLex retro non agit ("A law does not apply retroactively"). The said article, however, allows retroactive application of an Act of Parliament if it is expressly understood from its text or purpose.
Article 18 of thePortuguese Constitution forbids the retroactive application of any law the restricts right; article 29 of the Portuguese Constitution forbids retroactive application of criminal law; article 103 forbids the application of retroactive taxes.
Article 15 (2) of theRomanian Constitution provides that the law shall only act for the future, except for the more favourable criminal or administrative law.
Ex post facto punishment in criminal and administrative law is prohibited by article 54 of theRussian Constitution;ex post facto tax laws by article 57 of the constitution. Criminal law which improves the position of the convicted has retroactive force according to article 10 of theRussian Criminal Code.
Article 9.3 of theSpanish Constitution guarantees the principle of non-retroactivity of punitive provisions that are not favorable to or restrictive of individual rights. Therefore, "ex post facto" criminal laws or any other retroactive punitive provisions are constitutionally prohibited.
As well asStatute law mentioned above, this now also includes 'court-made law'. TheParot doctrine, in which terrorists were denied the right (enshrined in a 1973 Statute) to earn a reduction in the length of their sentences by a Spanish court ruling in 2006 was judged by theEuropean Court of Human Rights to be contrary to relevant articles onretroactivity &liberty and security in 2013.
Section 35(3) of theSouth African Bill of Rights prohibitsex post facto criminal laws, except that acts which violated international law at the time they were committed may be prosecuted even if they were not illegal under national law at the time. It also prohibits retroactive increases of criminal punishments.
InSweden, retroactive penal sanctions and other retroactive legal effects of criminal acts due the State are prohibited by chapter 2, section 10 of theInstrument 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 theSwedish Act of Succession was changed in 1979, and the throne was inherited regardless of sex, the inheritance right was withdrawn from all the descendants ofCharles XIV John (king 1818–44) except the current kingCarl XVI Gustaf. Thereby, the heir-apparent title was transferred from the new-bornPrince Carl Philip to his older sisterCrown Princess Victoria.
TheSwedish Riksdag voted in 2004 to abolishinheritance 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 the2004 Indian Ocean earthquake, which took place on December 26.[citation needed]
Ex post facto punishment is prohibited by Article 38 of theConstitution of Turkey. It states:
Thus, the article does not prohibitin mitius laws, i.e. cases wherein the retroactive application benefits the accused person.
Article 58 of theConstitution of Ukraine says: "Laws and other regulatory acts shall have no retroactive force except where they mitigate or nullify the responsibility of a person. No one shall bear responsibility for acts that, at the time they were committed, were not deemed by law to be an offence."
In theUnited Kingdom,ex post facto laws are permitted by virtue of the doctrine ofparliamentary sovereignty. Historically, allacts of Parliament before 1793 wereex 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 theActs of Parliament (Commencement) Act 1793.
Some laws are still passed retrospectively: e.g., the Pakistan Act 1990 (by which the United Kingdom amended its legislation consequent to theCommonwealth of Nations having re-admitted Pakistan as a member) was one such law; despite being passed on 29 June 1990, section 2 subsection 3 states that "This Act shall be deemed to have come into force on 1st October 1989", nine months before it was enacted.[35]
Retrospectivecriminal laws are prohibited by Article 7 of theEuropean Convention on Human Rights, to which the United Kingdom is a signatory, but some legal authorities have stated their opinion that parliamentary sovereignty takes priority even over this.[36][37] For example, theWar Crimes Act 1991 created anex post facto jurisdiction of British courts overwar crimes committed during theSecond World War. Another important example of a case which shows the doctrine of parliamentary supremacy in action is in relation toBurmah Oil Co Ltd v Lord Advocate, where the decision of the courts was overridden with retrospective effect by theWar Damage Act 1965, which changed the law on compensation resulting fromscorched earth actions in Burma during the war. More recently, thePolice (Detention and Bail) Act 2011 retroactively overrode a controversial court judgment resulting from an error in the drafting of thePolice and Criminal Evidence Act 1984 that would potentially have invalidated thousands of criminal convictions.
Another example of anex post facto criminal law in the UK is theCriminal Justice Act 2003. This law allows people acquitted of murder and certain other serious offences to be retried if there is "new, compelling, reliable and substantial evidence" that the acquitted person really was guilty. This Act applies retroactively and can be used to re-prosecute people who were acquitted before it came into force in 2005, or even before it was passed in 2003. As a result, two of the defendants who were acquitted in themurder of Stephen Lawrence were allowed to be retried, even though this murder occurred in 1993 and the defendants had been acquitted in 1996. Many people have criticized the Criminal Justice Act because of its essential abolition of prohibition against both ex post facto anddouble jeopardy laws.[38]
Taxation law has on multiple occasions been changed to retrospectively disallowtax avoidance schemes.[39] The most significant example known concerns double-taxation treaty arrangements where theFinance Act 2008 withBN66 retrospectively amended 1987 legislation, creating large tax liabilities for 3,000 people where no liability existed before.
Thomas Jefferson, one of theFounding Fathers of the United States, stated in 1813 that:
The sentiment thatex post facto laws are against natural right is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. ...The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong. Nor ought it to be presumed that the legislature meant to use a phrase in an unjustifiable sense, if by rules of construction it can be ever strained to what is just.
— Thomas Jefferson,Letter to Isaac McPherson, August 13, 1813
Congress is prohibited from passingex post facto laws by clause 3 ofArticle I,Section 9 of theUnited States Constitution. The states are prohibited from passingex post facto laws by clause 1 ofArticle I,Section 10. This is one of the relatively few restrictions that the United States Constitution made to both the power of the federal and state governments before theFourteenth Amendment. Over the years, however, when decidingex post facto cases, theUnited States Supreme Court has referred repeatedly to its ruling inCalder v. Bull, in which JusticeSamuel Chase held that the prohibition applied only to criminal matters, not civil matters, and established four categories of unconstitutionalex post facto laws.[40] The case dealt with the Article I, Section 10, prohibition onex post facto laws, because it concerned a Connecticut state law.
As a result ofCalder v. Bull, several retroactive taxes have been passed by the US Congress, starting with the 1913 Revenue Act, which imposed the first income tax. By 1935, prohibitions on retroactive taxation had been declared "dead." In 1938, the US Supreme Court claimed the standard on retroactive taxation was "retroactive application is so harsh and oppressive as to transgress the constitutional limitation." In practice, this has resulted in virtually all retroactive taxes being upheld, and in one case a 1993 revision of tax law that applied retroactively to 1984 was upheld.[41][42]
Not all laws with retroactive effects have been held to be unconstitutional. One current U.S. law that has a retroactive effect is theAdam Walsh Child Protection and Safety Act of 2006. This law imposes new registration requirements on convictedsex offenders and also applies to offenders whose crimes were committed before the law was enacted.[43] The U.S. Supreme Court ruled inSmith v. Doe (2003) that requiring sex offenders to register their whereabouts at regular intervals, and the posting of personal information about them on the Internet, do not violate the constitutional prohibition againstex post facto laws, because these laws do not impose any kind of punishment.[44][45]
InStarkey v. Oklahoma Department of Corrections, theSupreme Court of the State of Oklahoma found the Oklahoma Sex Offender Registration Act, or SORA, to be punitive in nature, if not in intent. While the law in question had been ruled as not being retroactive in nature, the Oklahoma Department of Corrections had been applying the new legislation retroactively. The court found that "the Department's retroactive application of the level assignment provisions of 57 O.S. Supp. 2007, 582.1 – 582.5, as amended, violates the ex post facto clause."[46]
Controversy has also arisen with regard tosexually violent predator (SVP) laws, which allow the indefinite commitment of a person with a mental abnormality which predisposes them to molest children. This issue arose in the caseKansas v. Hendricks.[47] InHendricks, a man with a long history of sexually molesting children was scheduled to be released from prison shortly after the enactment ofKansas's SVP act. Rather than being released, he was committed on the grounds that he had a mental abnormality. Hendricks contested the law onex post facto and double jeopardy grounds. TheSupreme Court of Kansas invalidated the Act, but theSupreme Court of the United States reversed the decision and ruled that the law was constitutional on the basis that the law did not impose a criminal punishment.[47]
Another example is theDomestic Violence Offender Gun Ban, where firearms prohibitions were imposed on those convicted of misdemeanor domestic-violence offenses and on subjects of restraining orders (which do not require criminal conviction). These individuals can now be sentenced to up to ten years in afederal prison for possession of a firearm, regardless of whether the weapon was legally possessed when the law was passed.[48] The law has been legally upheld because it is considered regulatory, not punitive; it is astatus offense.[49]
Another example is theCopyright Term Extension Act, which was retroactive since it affected both new works and existing ones, but it was upheld by decisionEldred v. Ashcroft. Also, theUruguay Round Agreement Act, which restored copyright in foreign works, removing them from thepublic domain, was upheld by another decision,Golan v. Holder.[citation needed]
The US military also recognizes ex post facto law.Common law states that Courts-martial will not enforce an ex post facto law, including increasing amount of pay to be forfeited for specific crimes. (SeeUnited States v. Gorki 47 M.J. 370).
Finally, inCalder v. Bull, the court expressly stated that a law that "mollifies" a criminal act was merely retrospective, and was not anex post facto law.[50] Scholars have argued that, as a historical matter, the phraseex post facto referred to civil as well as criminal laws.[51]
Inadministrative law, federal agencies may apply their rules retroactively if Congress has authorized them to; otherwise, retroactive application is generally prohibited. Retroactive application of regulations is disfavored by the courts for several reasons. The courts uphold retroactive regulation where Congress has expressly granted such retroactive power to the agency, as they did inBowen v. Georgetown University Hospital.[52]
The rules as they relate to the effects ofex post facto upon theU.S. Federal Sentencing Guidelines can be found inU.S.S.G.§ 1B1.11 (2012).
See alsoBouie v. City of Columbia,Rogers v. Tennessee,Stogner v. California,Republic of Austria v. Altmann,James Bamford andSamuels v. McCurdy.
Ex post facto laws is defined in Article 152, 2015 Law on Promulgation of Legal Documents:
There has been no case that new law stated it has a retroactive effect. But the second item of this Article has been widely used in court system (in mitius laws).
Ininternational criminal law, theNuremberg trials prosecutedwar crimes andcrimes against humanity perpetrated in World War II. Although theNuremberg Charter, theprocedural law under which the trials were held, postdatedV-E Day, the tribunal rejected the defence that the criminal law wasex post facto, arguing it derived from earlier treaties like theHague Conventions of 1899 and 1907. TheInternational Criminal Court established in 2002 that it cannot prosecute crimes committed before 2002.
Article 11, paragraph 2 of theUniversal Declaration of Human Rights provides that no person be held guilty of any criminal law that did not exist at the time of offence nor suffer any penalty heavier than what existed at the time of offence. It does however permit application of either domestic or international law.
Very similar provisions are found in Article 15, paragraph 1 of theInternational Covenant on Civil and Political Rights, replacing the term "penal offence" with "criminal offence". It also adds that if a lighter penalty is provided for after the offence occurs, that lighter penalty shall apply retroactively. Paragraph 2 adds a provision that paragraph 1 does not prevent trying and punishing for an act that was criminal according to the general principles of law recognized by the community of nations. Specifically addressing the use of the death penalty, article 6, paragraph 2 provides in relevant part that a death sentence may only be imposed "for the most serious crimes in accordance with the law in force at the time of the commission of the crime".
Article 2, paragraph 7 of theAfrican Charter on Human and Peoples' Rights provides in part that "no one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed."
Article 25 of theAmerican Declaration of the Rights and Duties of Man provides in part that "[n]o person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law." The right to be tried in accordance to "pre-existing law" is reiterated in article 26.
Article 15 of theArab 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."
Effectively all European states (exceptBelarus), including allEuropean Union andEuropean Economic Area states, are bound by theEuropean 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.
TheDigesta Iustiniani (15.3.10.8.3, 20.1.22.pr2) ("Digest ofJustinian") contains the two-word phraseex postfacto: "out of a postfactum" (an after-deed), or more naturally, "from a law passed afterward". This same work, however, also makes use of the three-word phraseex post facto, (2.14.17.4.2, 4.6.17.1.1,passim), suggesting thatpost might best be understood as an adverb. Other adverbial usages ofpost include theClassical Roman author and senatorMarcus Tullius Cicero employing phrases such asmultis post annis (De Re Publica 2.5.8 and elsewhere). Thus,ex post facto orex postfacto is natively an adverbial phrase, a usage demonstrated by the sentence "He was convictedex post facto (from a law passed after his crime)." The law itself would rightfully be alex postfacta in Latin, although English generally uses the phrase "an ex post facto law".
In Poland the phraselex retro non agit ("the law does not operate retroactively") is used.[53]
Australia was also one of eight nations involved in drafting the Universal Declaration.
Australia's commitment to human rights is enduring: we were an original signatory to the Universal Declaration of Human Rights in 1948.
The second paragraph of Article 11 is a ban on retroactive laws...Paragraph 2 says: "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."
The Universal Declaration is not a treaty, so it does not directly create legal obligations for countries...it is an expression of the fundamental values which are shared by all members of the international community.
Australia is a party to...the International Covenant on Civil and Political Rights (ICCPR).
Article 15(1) of the International Covenant on Civil and Political Rights expressly prohibits the implementation of retrospective criminal laws.
Australia is also a party to...the Optional Protocol to the International Covenant on Civil and Political Rights.
The Optional Protocol sets up a mechanism by which individuals can file complaints with the Human Rights Committee against states (which have ratified the optional protocol) for non-compliance with the provisions of the International Covenant on Civil and Political Rights (ICCPR). Notably, the mechanism is available to all "individuals subject to the jurisdiction" of the State party rather than only citizens.
{{cite journal}}:Cite journal requires|journal= (help)If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it – and says so in express terms – then ... it would be the duty of our courts to follow the statute of our Parliament.
I think your Committee will be familiar with what Lord Denning, then Master of the Rolls, said in McCarthy v Smith: 'If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision of it or with the intention of acting inconsistently with it—it says so in express terms—I should have thought it would be the duty of our courts to follow the statute in our Parliament.' That much is clear. Other consequences would follow in those circumstances, which arise from our signature on the Vienna Convention on the Law of Treaty, Article 27, which says that you have to respect the international obligations into which you have entered.
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