Nullum crimen, nulla poena sine praevia lege poenali
Encyclopedia
Nullum crimen, nulla poena sine praevia lege poenali (Latin
, lit. "No crime, no punishment without a previous penal law") is a basic maxim in continental Europe
an legal thinking. It was written by Paul Johann Anselm Ritter von Feuerbach
as part of the Bavarian Criminal Code in 1813.
The maxim itself is sometimes rendered:
or abbreviated to:
The maxim states that there can be no crime committed, and no punishment meted out, without a violation of penal law as it existed at the time. Another consequence of this principle is that only those penalties that had already been established for the offence in the time when it was committed can be imposed. Thus, not only the existence of the crime depends on there being a previous legal provision declaring it to be a penal offense (nullum crimen sine praevia lege), but also, for a specific penalty to be imposed in a certain case, it is also necessary that the penal legislation in force at the time when the crime was committed ranked the penalty to be imposed as one of the possible sanctions to that crime (nulla poena sine praevia lege).
This basic legal principle has been incorporated into international criminal law
. It thus prohibits the creation of ex post facto law
s to the disadvantage of the defendant.
, penal law
is taken to include the prohibitions of international criminal law, in addition to those of domestic law. Thus prosecutions have been possible of such individuals as Nazi
war criminals and officials of the German Democratic Republic
responsible for the Berlin Wall
, even though their deeds may have been allowed or even ordered by domestic law. Also, courts when dealing with such cases will tend to look to the letter of the law at the time, even in regimes where the law as it was written was generally disregarded in practice by its own authors.
However, some legal scholars criticize this, because generally, in the legal systems of Continental Europe where the maxim was first developed, "penal law" was taken to mean statutory penal law, so as to create a guarantee to the individual, considered as a fundamental right, that he would not be prosecuted for an action or omission that was not considered a crime according to the statutes passed by the legislators in force at the time of the action or omission, and that only those penalties that were in place when the infringement took place would be applied. Also, even if one considers that certain actions are prohibited under general principles of international law, critics point out that a prohibition in a general principle does not amount to the establishment of a crime, and that the rules of international law also do not stipulate specific penalties for the violations.
In an attempt to address those criticisms, the statute of the recently established International Criminal Court
provides for a system in which crimes and penalties are expressly set out in written law, that shall only be applied to future cases.
This principle is enshrined in several national constitutions, and a number of international instruments. See e.g. European Convention on Human Rights
, article 7(1); Rome Statute of the International Criminal Court
, articles 22 and 23.
there are offences of common law
origin. For example, murder
is still a common law offence and lacks a statutory definition. The Homicide Act 1957
did not include a statutory definition of murder (or any other homicidal offense). There was, consequently, the astonishing spectacle of the definition of murder, still a matter of common law, being the subject of no less than six appeals to the House of Lords within the next 40 years (Director of Public Prosecutions v. Smith [1961] A.C. 290; Hyam v. Director of Public Prosecutions [1975] A.C. 55; Regina v. Cunningham [1982] A.C. 566; Regina v. Moloney [1985] A.C. 905; Regina v. Hancock [1986] A.C. 455; Regina v. Woollin [1998] 4 A11 E.R. 103 (H.L.)).
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
, lit. "No crime, no punishment without a previous penal law") is a basic maxim in continental Europe
Continental Europe
Continental Europe, also referred to as mainland Europe or simply the Continent, is the continent of Europe, explicitly excluding European islands....
an legal thinking. It was written by Paul Johann Anselm Ritter von Feuerbach
Paul Johann Anselm Ritter von Feuerbach
Paul Johann Anselm Ritter von Feuerbach was a German legal scholar. His major work was a reform of the Bavarian penal code which became a model for several other countries.-Biography:...
as part of the Bavarian Criminal Code in 1813.
The maxim itself is sometimes rendered:
- nullum delictum, nulla poena sine praevia lege poenali
- nullum crimen, nulla poena sine praevia lege poenali
- nullum crimen, nulla poena sine lege praevia
or abbreviated to:
- nullum crimen et nulla poena sine lege (also nullum crimen et nulla poene sine lege)
- nullum crimen, nulla poena sine lege
- nullum crimen sine lege
- nulla poena sine legeNulla poena sine legeNulla poena sine lege is a legal principle, requiring that one cannot be punished for doing something that is not prohibited by law. This principle is accepted as just and upheld by the penal codes of constitutional states, including virtually all modern democracies...
The maxim states that there can be no crime committed, and no punishment meted out, without a violation of penal law as it existed at the time. Another consequence of this principle is that only those penalties that had already been established for the offence in the time when it was committed can be imposed. Thus, not only the existence of the crime depends on there being a previous legal provision declaring it to be a penal offense (nullum crimen sine praevia lege), but also, for a specific penalty to be imposed in a certain case, it is also necessary that the penal legislation in force at the time when the crime was committed ranked the penalty to be imposed as one of the possible sanctions to that crime (nulla poena sine praevia lege).
This basic legal principle has been incorporated into international criminal law
International criminal law
International criminal law is a body of international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. Principally, it deals with genocide, war crimes, crimes against...
. It thus prohibits the creation of ex post facto law
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
s to the disadvantage of the defendant.
International criminal law
Since the Nuremberg TrialsNuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
, penal law
Penal law
In the most general sense, penal is the body of laws that are enforced by the State in its own name and impose penalties for their violation, as opposed to civil law that seeks to redress private wrongs...
is taken to include the prohibitions of international criminal law, in addition to those of domestic law. Thus prosecutions have been possible of such individuals as Nazi
Nazism
Nazism, the common short form name of National Socialism was the ideology and practice of the Nazi Party and of Nazi Germany...
war criminals and officials of the German Democratic Republic
German Democratic Republic
The German Democratic Republic , informally called East Germany by West Germany and other countries, was a socialist state established in 1949 in the Soviet zone of occupied Germany, including East Berlin of the Allied-occupied capital city...
responsible for the Berlin Wall
Berlin Wall
The Berlin Wall was a barrier constructed by the German Democratic Republic starting on 13 August 1961, that completely cut off West Berlin from surrounding East Germany and from East Berlin...
, even though their deeds may have been allowed or even ordered by domestic law. Also, courts when dealing with such cases will tend to look to the letter of the law at the time, even in regimes where the law as it was written was generally disregarded in practice by its own authors.
However, some legal scholars criticize this, because generally, in the legal systems of Continental Europe where the maxim was first developed, "penal law" was taken to mean statutory penal law, so as to create a guarantee to the individual, considered as a fundamental right, that he would not be prosecuted for an action or omission that was not considered a crime according to the statutes passed by the legislators in force at the time of the action or omission, and that only those penalties that were in place when the infringement took place would be applied. Also, even if one considers that certain actions are prohibited under general principles of international law, critics point out that a prohibition in a general principle does not amount to the establishment of a crime, and that the rules of international law also do not stipulate specific penalties for the violations.
In an attempt to address those criticisms, the statute of the recently established International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
provides for a system in which crimes and penalties are expressly set out in written law, that shall only be applied to future cases.
This principle is enshrined in several national constitutions, and a number of international instruments. See e.g. European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, article 7(1); Rome Statute of the International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
, articles 22 and 23.
Common law
In English criminal lawEnglish criminal law
English criminal law refers to the body of law in the jurisdiction of England and Wales which deals with crimes and their consequences. Criminal acts are considered offences against the whole of a community...
there are offences of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
origin. For example, murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
is still a common law offence and lacks a statutory definition. The Homicide Act 1957
Homicide Act 1957
The Homicide Act 1957 is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice , reforming the partial defence of provocation, and by introducing the partial defences...
did not include a statutory definition of murder (or any other homicidal offense). There was, consequently, the astonishing spectacle of the definition of murder, still a matter of common law, being the subject of no less than six appeals to the House of Lords within the next 40 years (Director of Public Prosecutions v. Smith [1961] A.C. 290; Hyam v. Director of Public Prosecutions [1975] A.C. 55; Regina v. Cunningham [1982] A.C. 566; Regina v. Moloney [1985] A.C. 905; Regina v. Hancock [1986] A.C. 455; Regina v. Woollin [1998] 4 A11 E.R. 103 (H.L.)).