Principle Of Nullum Crimen Sine Lege Research Articles

Niekonstytucyjność embriopatologicznej przesłanki przerywania ciąży oraz jej prawnokarne konsekwencje

The purpose of this article is to point out not only the essence of the embryopathological premise of abortion – that has been deemed unconstitutional (pursuant to the Polish law) – but also the criminal law consequences of its repeal. The abolition of the abortion compromise, which took place by virtue of the judgement of the Constitutional Tribunal of 22 October 2020, K 1/20, OTK-A 2021, item 4, prompted the presentation of doubts of both constitutional and strictly interpretative nature that have occurred over the years in the interpretation of the said premise. When considering the criminal law consequences of the aforementioned judgement, it was pointed out that the compliance with the nullum crimen sine lege principle does not allow to determine that the said judgement has led to change in the current scope of the criminalisation of abortion. The conviction was also stated de lege ferenda that any attempts at modifying the abortion law require an in-depth discussion and well-thought-out legislative actions.

The Perils of Progressive Jurisprudence: The Nullum Crimen Sine Lege Principle in International Criminal Law

Abstract The nullum crimen sine lege principle is a fundamental principle of human rights, prohibiting both retroactive application of crimes as well as expansive interpretations and extensions by analogy. Yet throughout its historical evolution, from the emergence of novel crimes in the Charters of the International Military Tribunals at Nuremberg and Tokyo, to the expansive interpretations of such crimes by contemporary jurisdictions such as the ICTY, ICTR and ICC, international criminal law has been characterized by a privileging of substantive justice over the principle of legality. From filling normative lacunae to evolutionary adaptation of existing norms, the humanitarian interests underlying the criminalization of atrocities is often invoked to justify progressive jurisprudence. The paper considers whether this sensibility is a cause for celebration or a cause for concern, and whether the nullum crimen sine lege principle should be applied less strictly in the context of international criminal law.

The Principle of Legality and the Crime of Genocide: Drelingas v Lithuania

On 12 March 2019, a Chamber of the European Court of Human Rights (ECtHR or ‘European Court’) rendered its judgment in Drelingas v Lithuania1 concerning the application of the nullum crimen sine lege principle, enshrined in Article 7 of the European Convention on Human Rights (ECHR), with regard to the crime of genocide.2 The applicant had worked as a Senior Officer of the Soviet Union’s state security agency the MGB (which later became the well-known KGB) at the time of the offence for which he was convicted, which took place on 12 October 1956 when he took part in an operation to capture two Lithuanian partisans. The operation succeeded: the partisans were detained and sentenced, one to death and the other to deportation to Siberia. After Lithuania regained its independence in 1991, the applicant was prosecuted and found guilty of being an ‘accessory to genocide’ under Articles 24(6)3 and 99 of the 2003 Lithuanian Criminal Code. The applicant started proceedings against Lithuania before the European Court arguing that his conviction was based on a retroactive application of criminal law and, therefore, violated Article 7 of the ECHR. The Court eventually, by a majority of five to two votes, found that his conviction did not violate Article 7.

Zasada nullum crimen sine lege jako źródło poszukiwania językowej granicy wykładni prawa karnego?

The principle of nullum crimen sine lege is nowadays recognized as the standard of the rule of law. This doctrine prohibits the use of analogies and extensive interpretation of legal provisions to the disadvantage of the perpetrator. The starting point of these considerations is that texts of criminal provisions vary in nature. Therefore a question should be asked about the nature of these prohibitions in relation to various provisions. A separate problem is to distinguish inference by analogy from legal interpretation. The presented considerations are aimed at answering the question whether the nullum crimen sine lege principle allows determining the linguistic limits for the interpretation of criminal law. The analyses are illustrated by examples from the field of criminal case law. The article aims to provide reflection on the acceptable limits of interpretation of criminal law, if such limits can be defined. The considerations end with general conclusions.

The Application of Blank Criminal Law and the Principle of Legality: The Guatemalan Example

The following article aims to assess the applicability of “blank criminal laws” under positive legal systems, as well as the threat it represents for the nullum crimen sine lege principle. It discusses the approaches to this concept taken by different legal systems in Latin America, particularly in Guatemala, where this technique was recently used to include in a flagship sentence several Conventions in which the State is involved but which are not fully transcribed into the corresponding codes. “Blank criminal laws” are understood as incomplete laws that only establish a penalty, leaving it to another judicial rule the broader definition, and analysis. The article compares the application of such laws in different Latin American countries, and how each country addresses the possible collision with the principle of legality.

Vertinamieji požymiai nusikalstamų veikų ekonomikai ir verslo tvarkai sudėtyse

Straipsnyje atskleidžiama nusikalstamų veikų ekonomikai ir verslo tvarkai rūšinės sudėties samprata ir taikymo tendencijos, identifikuojami Baudžiamojo kodekso XXXI skyriaus vertinamieji požymiai, analizuojamas jų turinys ir probleminiai inkriminavimo aspektai.

Physical-biological or socio-cultural ‘destruction’ in genocide? Unravelling the legal underpinnings of conflicting interpretations

The recent implementation of the 1948 Genocide Convention has shed light on some of its ambiguities, in particular the meaning of the ‘intent to destroy the group’, the mens rea of genocide, and whether the intended destruction should be understood in physical-biological terms or as an intent to eliminate the group as a social-cultural entity. The debate has been particularly acute within the International Criminal Tribunal for the Former Yugoslavia (ICTY), where the former, narrow understanding has finally prevailed. In contrast, in other jurisdictions, such as the German courts, a clear stance has been taken in favour of a broader socio-cultural understanding. This article integrates the legal constraints of interpretation into the debate on the meaning of group destruction. It focuses on the respective foundations of these conflicting interpretations, especially the reference to ‘cultural genocide’, and addresses the socio-legal underpinnings of both. In particular, it places a special emphasis on the international legal rules of interpretation as set out in the 1969 Vienna Convention on the Law of Treaties and on the principles of international criminal law such as the nullum crimen sine lege principle.

Is the Rome Statute Binding on Individuals? (And Why We Should Care)

This article examines whether the Rome Statute is binding on individuals, i.e. whether its provisions which define international crimes are substantive or jurisdictional in nature. This question cannot be resolved by the text of the Statute alone. It is both vexing and fundamental, and has significant conceptual and practical consequences. If the Statute is only jurisdictional in nature, then the source of substantive norms of criminal law binding on individuals must be elsewhere, primarily in customary law. If this is so, then the Statute could never go beyond customary law, even though it arguably attempts to do so in several instances, and any individual accused before the Court should be able to mount a challenge as to whether the charges against him have a basis in customary law. If, on the other hand, the Statute is seen as being substantive in nature, then the Statute — a treaty — must be binding on individuals who have never consented to be bound by it, nor could have done so. Then it may well go beyond customary law, but it would potentially run afoul of the nullum crimen sine lege principle in two cases — when a particular situation has been referred to the Court by the UN Security Council or by a non-state party — since the supposedly substantive Statute could not have been binding on the individuals concerned at the time that they allegedly committed their offence. These issues have been already raised (in Lubanga, its first case), and will be raised before the Court, as with the declaration lodged by Palestine whereby it accepted the Court's jurisdiction for Gaza, or with regard to the situation in Darfur. The article argues that the best approach in such situations is for the Court to ‘read down’ the Statute so as to conform to customary law that was binding on the individuals in question at the relevant time. This, however, is not the only solution open to the Court, and the article examines others. In doing so, it also deals with broader issues of when and how treaties can directly bind individuals in international law.