Nulla poena sine lege

Nulla poena sine lege (Latin: no penalty without a law) is a legal principle, requiring that one cannot be punished for doing something that is not prohibited by law. This principle is accepted and codified in modern democratic states as a basic requirement of the rule of law. A description and analysis of the principle can be found in Shahram Dana, Beyond Retroactivity to Realizing Justice: The Principle of Legality in International Criminal Law Sentencing, 99 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 857 (2009)

Requirements

In modern European criminal law, e.g. of the Constitutional Court of Germany, the principle of nulla poena sine lege has been found to consist of four separate requirements:^[1]

Nulla poena sine praevia lege poenali  

There is to be no penalty without previous law. This prohibits ex post facto laws, and the retroactive application of criminal law.

Nulla poena sine lege scripta

There is to be no penalty without written law. That is, criminal prohibitions must be set out in written legal instruments of general application, normally statutes, adopted in the form required by constitutional law. This excludes customary law as a basis of criminal punishment.

Nulla poena sine lege certa

There is to be no penalty without definite law. This provides that a penal statute must define the punishable conduct and the penalty with sufficient definiteness to allow citizens to foresee when a specific action would be punishable, and to conduct themselves accordingly. The rule expresses the general principle of legal certainty in matters of criminal law. It is recognised or codified in many national jurisdictions, as well as e.g. by the European Court of Justice as a "general principle of Union law".^[2]

Nulla poena sine lege stricta

There is to be no penalty without strict law. This prohibits the application by analogy of statutory provisions in criminal law.

In common law

One complexity is the lawmaking power of judges under common law. Even in civil law systems that do not admit judge-made law, it is not always clear when the function of interpretation of the criminal law ends and judicial lawmaking begins.

In cases of universal jurisdiction

The question of jurisdiction may sometimes come to contradict this principle. For example, customary international law allows the prosecution of pirates by any country (applying universal jurisdiction), even if they did not commit crimes at the area that falls under this country's law. A similar principle has appeared in the recent decades with regard to crimes of genocide (see genocide as a crime under domestic law); and UN Security Council Resolution 1674 "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity"^[3] even if the State in which the population is being assaulted does not recognise these assaults as a breach of domestic law. However, it seems that universal jurisdiction is not to be expanded substantially to other crimes, so as to satisfy Nulla poena sine lege.

See also

• Everything which is not forbidden is allowed
• Radbruch formula

Notes

References