An ''ex post facto'' law (from ) is a
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In
criminal law, it may
criminalize
Criminalization or criminalisation, in criminology, is "the process by which behaviors and individuals are transformed into crime and criminals". Previously legal acts may be transformed into crimes by legislation or judicial decision. However, ...
actions that were legal when committed; it may aggravate a
crime
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Ca ...
by bringing it into a more severe category than it was in when it was committed; it may change the
punishment prescribed for a crime, as by adding new penalties or extending sentences; or it may alter the
rules of evidence
The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of f ...
in order to make conviction for a crime likelier than it would have been when the deed was committed.
Conversely, a form of ''ex post facto'' law commonly called an
amnesty law
An Amnesty law is any legislative, constitutional or executive arrangement that retroactively exempts a select group of people, usually military leaders and government leaders, from criminal liability for the crimes that they committed. More speci ...
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.) A
pardon has a similar effect, in a specific case instead of a class of cases (though a pardon more often leaves the conviction itself – the finding of guilt – unaltered, and occasionally pardons are refused for this reason). Other legal changes may alleviate possible punishments (for example by replacing the death sentence with lifelong imprisonment) retroactively. Such legal changes are also known by the Latin term ''in mitius''.
Some
common-law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
J ...
s do not permit retroactive criminal legislation, though new
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
generally applies to events that occurred before the judicial decision. ''Ex post facto'' laws are expressly forbidden by the
United 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 the
Westminster system of government, such as the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
, ''ex post facto'' laws are possible, because the doctrine of
parliamentary supremacy
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all ...
allows
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...
to pass any law it wishes. In a nation with an entrenched
bill of rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pr ...
or a written
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princ ...
, ''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 also prohibited by
Article 7 of the European Convention on Human Rights, Article 15(1) of the
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, fr ...
, and
Article 9 of the American Convention on Human Rights
The American Convention on Human Rights, also known as the Pact of San José, is an international human rights instrument. It was adopted by many countries in the Western Hemisphere in San José, Costa Rica, on 22 November 1969. It came into for ...
. While American jurisdictions generally prohibit ''ex post facto'' laws, European countries apply the principle of ''lex 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 that ''ex post facto'' laws apply in European jurisdictions to the extent that they are the milder law.
''Ex post facto'' laws by country
Australia
Australia has no strong constitutional prohibition on ''ex post facto'' laws, although narrowly retrospective laws might violate the constitutional
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
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 of
tax avoidance
Tax avoidance is the legal usage of the tax regime in a single territory to one's own advantage to reduce the amount of tax that is payable by means that are within the law. A tax shelter is one type of tax avoidance, and tax havens are jurisdi ...
were passed in the early 1980s by the
Fraser government (see
Bottom of the harbour tax avoidance). Similarly, legislation
criminalising certain war crimes retrospectively has been held to be constitutional (see ''
Polyukhovich v Commonwealth'').
The government will sometimes make a press release that it intends to change the tax law with effect from the date and time of the press release, before legislation is introduced into parliament.
Australia participated in drafting the
Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. Drafted by a UN committee chaired by Eleanor Roosevelt, ...
and was an original signatory in 1948. The Declaration includes a prohibition on retrospectively holding anyone guilty of a
penal offence that was not an offence at the time it was committed. The
Australian Human Rights Commission
The Australian Human Rights Commission is the national human rights institution of Australia, established in 1986 as the Human Rights and Equal Opportunity Commission (HREOC) and renamed in 2008. It is a statutory body funded by, but opera ...
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."
Australia is a party to the
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, fr ...
. The implementation of retrospective criminal laws is expressly prohibited by the Covenant. Australia is also a party to the
Optional Protocol to the International Covenant on Civil and Political Rights. The Protocol enables individuals subject to the
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
J ...
of a
state party to file
complaints with the
United Nations Human Rights Committee
The United Nations Human Rights Committee is a treaty body composed of 18 experts, established by a 1966 human rights treaty, the International Covenant on Civil and Political Rights (ICCPR). The Committee meets for three four-week sessions per ...
for that state party's non-compliance with the International Covenant on Civil and Political Rights.
Brazil
According to the 5th Article, section XXXVI
[ide Emenda Constitucional nº 107, de 2020]
Casa Civil (in Portuguese) of the
Brazilian Constitution
The Constitution of the Federative Republic of Brazil ( pt, Constituição da República Federativa do Brasil) is the supreme law of Brazil. It is the foundation and source of the legal authority underlying the existence of Brazil and the feder ...
, laws cannot have ''ex post facto'' effects that affect acquired rights, accomplished juridical acts and ''res judicata''.
The same article in section XL
[ prohibits ''ex post facto'' criminal laws. Like France, there is an exception when retroactive criminal laws benefit the accused person.
]
Canada
In Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
, ''ex post facto'' criminal laws are constitutionally prohibited by paragraph 11(g) of the Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
. Also, under paragraph 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 to section 1 and section 33 of the Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
these rights are not absolute, and may be overridden.
The Canada sex offender registry
A sex offender registry is a system in various countries designed to allow government authorities to keep track of the activities of sex offenders, including those who have completed their criminal sentences. In some jurisdictions, registration i ...
, which went into effect on December 15, 2004, is somewhat retroactive. When the registry was created, all offenders who were on the Ontario
Ontario ( ; ) is one of the thirteen provinces and territories of Canada.Ontario is located in the geographic eastern half of Canada, but it has historically and politically been considered to be part of Central Canada. Located in Central C ...
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. 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. 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 under section 33 (the notwithstanding clause), Parliament could in theory enact ''ex post facto'' laws by invoking section 33. However, the federal Parliament, which has exclusive jurisdiction over criminal law, has never attempted to enact an ''ex post facto'' law (or any other law) using section 33.
The Charter prohibition applies only to criminal law. Changes to civil law in Canada can be, and occasionally are, enacted ''ex post facto''. In one example, convicted murderer Colin Thatcher
Wilbert Colin Thatcher (born August 25, 1938) is a Canadian politician who was convicted for the murder of his ex-wife, JoAnn Wilson.
Early life
Colin Thatcher was born in Toronto, Ontario, on August 25, 1938. His father, Saskatchewan-born Ros ...
was ordered to forfeit proceeds from a book he had published (after being paroled from prison) under a Saskatchewan
Saskatchewan ( ; ) is a province in western Canada, bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, to the northeast by Nunavut, and on the south by the U.S. states of Montana and North Dak ...
law. Although the law was passed long after Thatcher's murder conviction, the courts have ruled that such laws prescribe only civil penalties
A civil penalty or civil fine is a financial penalty imposed by a government agency as restitution for wrongdoing. The wrongdoing is typically defined by a codification of legislation, regulations, and decrees. The civil fine is not considered ...
(as opposed to additional criminal penalties) and are thus not subject to Charter restrictions.
Croatia
Article 90 of the Constitution of Croatia
The Constitution of the Republic of Croatia ( hr, Ustav Republike Hrvatske) is promulgated by the Croatian Parliament.
History
While it was part of the socialist Yugoslavia, the Socialist Republic of Croatia had its own Constitution under the ...
states that "only individual provisions of a law may have a retroactive effect for exceptionally justified reasons". According to Croatian legal scholar , this means that "a law cannot be applied retroactively as a whole, and regulations enacted pursuant to statutory authority can never be applied retroactively".
Denmark
Following the liberation of Denmark
At the outset of World War II in September 1939, Denmark declared itself neutral. For most of the war, the country was a protectorate and then an occupied territory of Germany. The decision to occupy Denmark was taken in Berlin on 17 December ...
from Nazi occupation
German-occupied Europe refers to the sovereign countries of Europe which were wholly or partly occupied and civil-occupied (including puppet governments) by the military forces and the government of Nazi Germany at various times between 1939 ...
in 1945, the Folketing
The Folketing ( da, Folketinget, ; ), also known as the Parliament of Denmark or the Danish Parliament in English, is the unicameral national legislature (parliament) of the Kingdom of Denmark—Denmark proper together with the Faroe Islands ...
, heavily influenced by the Frihedsråd, passed a special law
A special law is a type of legislation.
Belgium
A special law, or qualified majority law, is a type of legislation in Belgium which requires a qualified majority in both chambers of the bicameral Belgian Federal Parliament to be adopted, amended ...
(Lov Nr. 259 af 1. Juni 1945 om Tillæg til Borgerlig Straffelov angaaende Forræderi og anden landsskadelig Virksomhed, colloquially ''landsforræderloven'' (the traitor law) or ''strafferetstillægget'' (the penal code addendum)), temporarily reintroducing the death 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.
Finland
Generally, the Finnish legal system does not permit ''ex 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.
Former Minister of the Interior
An interior minister (sometimes called a minister of internal affairs or minister of home affairs) is a cabinet official position that is responsible for internal affairs, such as public security, civil registration and identification, emergency ...
Päivi Räsänen
Päivi Maria Räsänen, née Kuvaja (born 19 December 1959, in Sonkajärvi, Finland), is a Finnish politician. The chairwoman of the Christian Democrats from 2004 to 2015, she was the Minister of the Interior of Finland between 2011 and 2015.
A ...
became subject of a criminal investigation about suspected agitation against an ethnic group in late 2019 over her text concerning homosexuality, which was published online in 2004. The statute of limitations
A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. ("Time for commencing proceedings") In ...
for said charge is five years, which has led the case to be interpreted as ''ex post facto''. However, agitation against an ethnic group is a ''perpetuating crime'', and the statute of limitations only begins once the offending material has been removed from public viewing. The investigation has still been characterized as strange, as Räsänen's text is hardly the only material online or otherwise that could be viewed as agitation against an ethnic group, and the demarcation between who should and who should not be prosecuted for publishing and/or making such material available is unclear.
Historically there have been three exceptional instances when ''ex post facto'' criminal laws have been used in Finland.
# Following the Finnish Civil War
The Finnish Civil War; . Other designations: Brethren War, Citizen War, Class War, Freedom War, Red Rebellion and Revolution, . According to 1,005 interviews done by the newspaper ''Aamulehti'', the most popular names were as follows: Civil W ...
of 1918, the Parliament of Finland
The Parliament of Finland ( ; ) is the unicameral and supreme legislature of Finland, founded on 9 May 1906. In accordance with the Constitution of Finland, sovereignty belongs to the people, and that power is vested in the Parliament. The ...
passed a law setting up tribunals to try suspected rebels. These tribunals issued death sentences in many cases, although very few of those accused could have committed a crime that carried the death penalty under Finnish law in force during the war. Several hundred people were executed under what was arguably an ''ex post facto'' legal arrangement. During the war, and before the tribunals were set up, thousands of people had been executed without trial by both sides. However, once this phase of the civil war ended, amnesty laws were passed. Thus, the legality of the actions of the government or the participants of either side of the war cannot be legally contested anymore.
# After World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposing ...
, Finland was under pressure to convict political leaders whom the Allied powers considered responsible for Finnish involvement in the war. An ''ex post facto'' law was passed in the autumn of 1945 to permit prosecution for war responsibility, and eventually eight politicians were convicted. In another post-war case, the weapons cache case
The Weapons Cache Case ( fi, Asekätkentä, sv, Vapengömmoaffären) was a Finnish military plan to continue battle after the ceasefire in 1944, if needed. It concerned a secret and officially unsanctioned military operation following the end of ...
, an ''ex post facto'' law was passed in 1947 so that military personnel could be prosecuted for unofficially preparing for guerrilla resistance in case of Soviet occupation.
# During World War II, desertion, draft dodging and conscientious objection were punishable by death or jail. Amnesty laws were passed after World War II to free deserters and draft dodgers from imprisonment and further prosecution and allow them to return home without further legal consequences.
France
In France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of overseas regions and territories in the Americas and the Atlantic, Pacific and Indian Oceans. Its metropolitan area ...
, so-called "''lois rétroactives''" (retroactive laws) are technically prohibited by Article 2 of the Code Civil, which states that: "Legislation provides only for the future; it has no retrospective operation". In practice, however, since the Code Civil does not have the status of constitutional legislation and can therefore be overruled by subsequent laws, the Conseil 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.
However, in criminal law, ''ex post facto'' sanctions are effectively forbidden as per Article 112-1 of the French Penal Code
French (french: français(e), link=no) may refer to:
* Something of, from, or related to France
** French language, which originated in France, and its various dialects and accents
** French people, a nation and ethnic group identified with France ...
, except in cases wherein the retroactive application benefits the accused person (called retroactivity ''in mitius''). They are also considered unconstitutional, since the principle of non-retroactivity is laid down in Article 8 of the Declaration of the Rights of Man and of the Citizen
The Declaration of the Rights of Man and of the Citizen (french: Déclaration des droits de l'homme et du citoyen de 1789, links=no), set by France's National Constituent Assembly in 1789, is a human civil rights document from the French Revolu ...
, which has constitutional status under French law. The ''épuration légale
The ''épuration légale'' (French "legal purge") was the wave of official trials that followed the Liberation of France and the fall of the Vichy Regime. The trials were largely conducted from 1944 to 1949, with subsequent legal action continui ...
'' trials held after the 1944 liberation of France
The liberation of France in the Second World War was accomplished through diplomacy, politics and the combined military efforts of the Allied Powers, Free French forces in London and Africa, as well as the French Resistance.
Nazi Germany inv ...
introduced the status of ''indignité nationale
''Indignité nationale'' ( French "national unworthiness") was a legally defined offense, created at the Liberation in the context of the "''Épuration légale''". The offence of ''Indignité nationale'' was meant to fill a legal void: while t ...
'' for Nazi collaborators as a way to avoid ''ex post facto'' law.
Germany
Article 103 of the German basic law
The Basic Law for the Federal Republic of Germany (german: Grundgesetz für die Bundesrepublik Deutschland) is the constitution of the Federal Republic of Germany.
The West German Constitution was approved in Bonn on 8 May 1949 and came in ...
requires that an act may be punished only if it has already been punishable by law at the time it was committed (specifically: by ''written'' law, Germany
Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...
following civil law).
Robert A. Taft
Robert Alphonso Taft Sr. (September 8, 1889 – July 31, 1953) was an American politician, lawyer, and scion of the Republican Party's Taft family. Taft represented Ohio in the United States Senate, briefly served as Senate Majority Leade ...
, at the time a U.S. Senator from Ohio, asserted that the Nuremberg Trials
The Nuremberg trials were held by the Allies against representatives of the defeated Nazi Germany, for plotting and carrying out invasions of other countries, and other crimes, in World War II.
Between 1939 and 1945, Nazi Germany invaded m ...
following World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposing ...
were based on ''ex post facto'' law because the Allies did not negotiate the London Charter
The Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (usually referred to as the Nuremberg Charter or London Charter) was the decree issue ...
, 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 the Kellogg-Briand Pact, the Covenant of the League of Nations
The Covenant of the League of Nations was the charter of the League of Nations. It was signed on 28 June 1919 as Part I of the Treaty of Versailles, and became effective together with the rest of the Treaty on 10 January 1920.
Creation
Early d ...
, and the various Hague Conventions.
William O. Douglas
William Orville Douglas (October 16, 1898January 19, 1980) was an American jurist who served as an associate justice of the Supreme Court of the United States, who was known for his strong progressive and civil libertarian views, and is often ci ...
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 Justice Harlan Stone
Harlan Fiske Stone (October 11, 1872 – April 22, 1946) was an American attorney and jurist who served as an associate justice of the U.S. Supreme Court from 1925 to 1941 and then as the 12th chief justice of the United States from 1941 un ...
, likewise, called the Nuremberg Trials a "fraud" because of the ex post facto laws.
The problem of ''ex post facto'' law was also relevant in the 1990s after German reunification as there was a discussion about the trials against East German
East Germany, officially the German Democratic Republic (GDR; german: Deutsche Demokratische Republik, , DDR, ), was a country that existed from its creation on 7 October 1949 until its dissolution on 3 October 1990. In these years the state ...
border troops who killed fugitives on the Inner-German border ( ''Mauerschützen-Prozesse'' - ''Wall-shooters'/ -guards' trials''). German courts in these cases recurred to the Radbruch formula
The Radbruch formula (German: ''Radbruchsche Formel'') is a theory of law which was first formulated in a 1946 essay by the German law professor and politician Gustav Radbruch. According to the theory, a judge who encounters a conflict between a s ...
.
Hungary
In 2010, the Hungarian 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.
India
In India, without using the expression "''ex post facto law''", the underlying principle has been adopted in the article 20(1) of the Indian Constitution
The Constitution of India (IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ri ...
in the following words:
Further, what article 20(1) prohibits is conviction and sentence under an ''ex 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, an ''ex 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.
An example for retrospective law in India is the Karnataka Schedule Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 in the state of Karnataka
Karnataka (; ISO: , , also known as Karunāḍu) is a state in the southwestern region of India. It was formed on 1 November 1956, with the passage of the States Reorganisation Act. Originally known as Mysore State , it was renamed ''Karnat ...
.
Indonesia
The Indonesian Constitution prohibits trying citizens under retroactive laws in any circumstance. This was tested in 2004 when the conviction of Masykur Abdul Kadir, one of the Bali bombers, under retroactive anti-terrorist legislation was quashed.
Iran
''Ex post facto'' laws, in all contexts, are prohibited by Article 169 (Chapter 11) of the Iranian Constitution
The Constitution of the Islamic Republic of Iran ( fa, قانون اساسی جمهوری اسلامی ایران, ''Qanun-e Asasi-ye Jomhuri-ye Eslâmi-ye Iran'') was adopted by referendum on 2 and 3 December 1979, and went into force replac ...
.
Ireland
The imposition of retroactive criminal sanctions is prohibited by Article 15.5.1° of the Irish Constitution
The Constitution of Ireland ( ga, Bunreacht na hÉireann, ) is the fundamental law of Ireland. It asserts the national sovereignty of the Irish people. The constitution, based on a system of representative democracy, is broadly within the traditio ...
. 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, the Irish Supreme Court
, image = Coat of arms of Ireland.svg
, imagesize = 120px
, alt =
, caption = Coat of Arms of Ireland
, image2 = Four Courts, Dublin 2014-09-13.jpg
, imagesize2 =
, alt2 ...
having found that such a right is a constitutionally protected property right.
Israel
Israel
Israel (; he, יִשְׂרָאֵל, ; ar, إِسْرَائِيل, ), officially the State of Israel ( he, מְדִינַת יִשְׂרָאֵל, label=none, translit=Medīnat Yīsrāʾēl; ), is a country in Western Asia. It is situated ...
enacted the 1950 Nazis and Nazi Collaborators (Punishment) Law
The Nazis and Nazi Collaborators (Punishment) Law () is a 1950 Israeli law passed by the First Knesset that provides a legal framework for the prosecution of crimes against Jews and other persecuted people committed in Nazi Germany, German-occup ...
for the purpose of punishing acts that occurred during the Second World War
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposi ...
and the Holocaust
The Holocaust, also known as the Shoah, was the genocide of European Jews during World War II. Between 1941 and 1945, Nazi Germany and its collaborators systematically murdered some six million Jews across German-occupied Europe; ...
, when Israel did not exist as a state. The law was used to punish Adolf Eichmann and others.
Italy
Article 25, paragraph 2, of the Italian Constitution
The Constitution of the Italian Republic ( it, Costituzione della Repubblica Italiana) was enacted by the Constituent Assembly on 22 December 1947, with 453 votes in favour and 62 against. The text, which has since been amended sixteen times, ...
, 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 the Italian Civil Code The Italian Civil Code ( it, Codice civile) is the civil code of Italy, a collection of norms regulating private law. It was enacted under Fascist rule, by Royal decree no. 262 of 16 March 1942. It predates the current Constitution of Italy, and i ...
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.
Japan
Article 39 of the constitution of Japan
The Constitution of Japan ( Shinjitai: , Kyūjitai: , Hepburn: ) is the constitution of Japan and the supreme law in the state. Written primarily by American civilian officials working under the Allied occupation of Japan, the constitutio ...
prohibits the retroactive application of laws. Article 6 of Criminal Code of Japan
The Penal Code (刑法 ''Keihō'') of Japan was passed in 1907 as Law No. 45. It is one of six Codes that form the foundation of modern Japanese law. The penal code is also called “ordinary criminal law” or “general criminal law” as it ...
further states that if a new law comes into force after the deed was committed, the lighter punishment must be given.
Lithuania
Lithuania has no constitutional prohibition on ''ex post facto'' laws. However, as a signatory of the European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
and as a member of the European Union whose Charter of Fundamental Rights
The Charter of Fundamental Rights of the European Union (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law. It was drafted by the European Convention and solemnly proclai ...
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 the Criminal Code
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...
of the Republic of Lithuania
A republic () is a "state in which power rests with the people or their representatives; specifically a state without a monarchy" and also a "government, or system of government, of such a state." Previously, especially in the 17th and 18th c ...
. 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 in September 26, 2000 and therefore can't be used in events of 1944-1953.
Mexico
According to the first and second paragraphs of the 14th Article of the Mexican Constitution
The Constitution of Mexico, formally the Political Constitution of the United Mexican States ( es, Constitución Política de los Estados Unidos Mexicanos), is the current constitution of Mexico. It was drafted in Santiago de Querétaro, in th ...
, 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.
Netherlands
Article 4 of the Law on General Provisions (in effect since 1838) states that "The law has no retroactive effect".
Article 1 of Criminal 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.
In Civil Law there is no such provision.
New Zealand
Section 7 of the Interpretation Act 1999 stipulates that enactments do not have retrospective effect. The New Zealand Bill of Rights Act 1990
The New Zealand Bill of Rights Act 1990 (sometimes known by its acronym, NZBORA or simply BORA) is a statute of the Parliament of New Zealand part of New Zealand's uncodified constitution that sets out the rights and fundamental freedoms of an ...
also affirms New Zealand's commitment to the International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, fr ...
and Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. Drafted by a UN committee chaired by Eleanor Roosevelt, ...
, 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, " nal 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 the New Zealand Parliament
The New Zealand Parliament ( mi, Pāremata Aotearoa) is the unicameral legislature of New Zealand, consisting of the King of New Zealand (King-in-Parliament) and the New Zealand House of Representatives. The King is usually represented by hi ...
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 of ''R v Pora'' and ''R v Poumako''.
Norway
Article 97 of the Norwegian Constitution
nb, Kongeriket Norges Grunnlov
nn, Kongeriket Noregs Grunnlov
, jurisdiction = Kingdom of Norway
, date_created =10 April - 16 May 1814
, date_ratified =16 May 1814
, system =Constitutional monarchy
, ...
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.
Pakistan
Article 12 of the Constitution of Pakistan prohibits any law to be given retroactive effect by stating:
* 12.1 - No law shall authorize the punishment of a person:-
* 12.1.a - for an act or omission that was not punishable by law at the time of the act or omission; or
* 12.1.b - for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
Philippines
The 1987 Constitution of the Philippines categorically prohibits the passing of any ''ex post facto'' law. Article III (Bill of Rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pr ...
), Section 22 specifically states: "No ''ex post facto'' law or bill of attainder
A bill of attainder (also known as an act of attainder or writ of attainder or bill of penalties) is an act of a legislature declaring a person, or a group of people, guilty of some crime, and punishing them, often without a trial. As with attai ...
shall be enacted."
However, the Cybercrime Prevention Act, which went into effect on October 3, 2012, is criticized for being ''ex post facto''.
Poland
Retroactive application of law is prohibited by the Article 3 of the Polish civil code, and the legal rule
Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
prohibiting such retroactive application is commonly memorised as a Latin
Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...
sentence ''Lex 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.
Portugal
Article 18 of the Portuguese Constitution
The present Constitution of Portugal was adopted in 1976 after the Carnation Revolution. It was preceded by a number of constitutions including the first one created in 1822 (following the Liberal Revolution of 1820), 1826 (drawn up by King ...
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.
Romania
Article 15 (2) of the Romanian Constitution provides that the law shall only act for the future, except for the more favourable criminal or administrative law.
Russia
''Ex post facto'' punishment in criminal and administrative law is prohibited by article 54 of the Russian Constitution
The Constitution of the Russian Federation () was adopted by national referendum on 12 December 1993. Russia's constitution came into force on 25 December 1993, at the moment of its official publication, and abolished the Soviet system of gov ...
; ''ex post facto'' tax laws by article 57 of the constitution.
Spain
Article 9.3 of the Spanish Constitution
The Spanish Constitution (Spanish, Asturleonese, and gl, Constitución Española; eu, Espainiako Konstituzioa; ca, Constitució Espanyola; oc, Constitucion espanhòla) is the democratic law that is supreme in the Kingdom of Spain. It was e ...
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 as Statute law
Statutory law or statute law is written law passed by a body of legislature. This is opposed to oral or customary law; or regulatory law promulgated by the executive or common law of the judiciary. Statutes may originate with national, state leg ...
mentioned above, this now also includes ' court-made law'. The Parot 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 the European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
to be contrary to relevant articles on retroactivity & liberty and security in 2013.
South Africa
Section 35(3) of the South African Bill of Rights
Chapter Two of the Constitution of South Africa contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa. The rights in the Bill apply to all law, includin ...
prohibits ''ex 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.
Sweden
In Sweden, retroactive penal sanctions and other retroactive legal effects of criminal acts due the State are prohibited by chapter 2, section 10 of the Instrument of Government
The Instrument of Government was a constitution of the Commonwealth of England, Scotland and Ireland. Drafted by Major-General John Lambert in 1653, it was the first sovereign codified and written constitution in England.
Antecedence
The ' ...
(''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 the Swedish Act of Succession
The 1810 Act of Succession ( sv, 1810 års successionsordning, lit=the 1810 order of succession) is one of four ''Fundamental Laws of the Realm'' () and thus forms part of the Swedish Constitution. The Act regulates the line of succession to ...
was changed in 1979, and the throne was inherited regardless of sex, the inheritance right was withdrawn from all the descendants of Charles XIV John
Charles XIV John ( sv, Karl XIV Johan; born Jean Bernadotte; 26 January 1763 – 8 March 1844) was King of Sweden and Norway from 1818 until his death in 1844. Before his reign he was a Marshal of France during the Napoleonic Wars and participat ...
(king 1818-44) except the current king Carl XVI Gustaf. Thereby, the heir-apparent title was transferred from the new-born Prince Carl Philip
A prince is a male ruler (ranked below a king, grand prince, and grand duke) or a male member of a monarch's or former monarch's family. ''Prince'' is also a title of nobility (often highest), often hereditary, in some European states. The ...
to his older sister Crown Princess Victoria
Victoria, Crown Princess of Sweden, Duchess of Västergötland (Victoria Ingrid Alice Désirée; born 14 July 1977) is the heir apparent to the Swedish throne, as the eldest child of King Carl XVI Gustaf. If she ascends to the throne as expect ...
.
The Swedish Riksdag
The Riksdag (, ; also sv, riksdagen or ''Sveriges riksdag'' ) is the legislature and the supreme decision-making body of Sweden. Since 1971, the Riksdag has been a unicameral legislature with 349 members (), elected proportionally and se ...
voted in 2004 to abolish inheritance 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 the 2004 Indian Ocean earthquake, which took place on December 26.
Turkey
''Ex post facto'' punishment is prohibited by Article 38 of the Constitution of Turkey. It states:
* c1. No one shall be punished for any act which does not constitute a criminal offence under the law in force at the time committed; no one shall be given a heavier penalty for an offence other than the penalty applicable at the time when the offence was committed.
* c2. The provisions of the above paragraph shall also apply to the statute of limitations on offences and penalties and on the results of conviction.
Thus, the article does not prohibit ''in mitius'' laws, i.e. cases wherein the retroactive application benefits the accused person.
United Kingdom
In the United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
, ''ex post facto'' laws are permitted by virtue of the doctrine of parliamentary sovereignty
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all ...
. Historically, all acts of Parliament
Acts of Parliament, sometimes referred to as primary legislation, are texts of law passed by the legislative body of a jurisdiction (often a parliament or council). In most countries with a parliamentary system of government, acts of parliament be ...
before 1793 were ''ex 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 the Acts of Parliament (Commencement) Act 1793
The Acts of Parliament (Commencement) Act 1793 (33 Geo. 3 c. 13) is an Act of the Parliament of the Kingdom of Great Britain which requires that the clerk of the Parliaments endorse every act of Parliament with the date on which the act passed a ...
.
Some laws are still passed retrospectively: e.g., the Pakistan Act 1990 (by which the United Kingdom amended its legislation consequent to the Commonwealth of Nations
The Commonwealth of Nations, simply referred to as the Commonwealth, is a political association of 56 member states, the vast majority of which are former territories of the British Empire. The chief institutions of the organisation are the ...
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.
Retrospective ''criminal'' laws are prohibited by Article 7 of the European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
, to which the United Kingdom is a signatory, but several noted legal authorities have stated their opinion that parliamentary sovereignty takes priority even over this. For example, the War Crimes Act 1991
The War Crimes Act 1991 is an Act of the Parliament of the United Kingdom. It confers jurisdiction on courts in the United Kingdom to try people for war crimes committed in Nazi Germany or German-occupied territory during the Second World War ...
created an ''ex post facto'' jurisdiction of British courts over war crimes committed during the Second World War
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposi ...
. Another important example of a case which shows the doctrine of parliamentary supremacy in action is in relation to ''Burmah Oil Co Ltd v Lord Advocate
''Burmah Oil Company Ltd v Lord Advocate'' 965AC 75, was a court case, raised in Scotland, and decided ultimately in the House of Lords. The case is an important decision in British constitutional law and had unusual legal repercussions at the ...
'', where the decision of the courts was overridden with retrospective effect by the War Damage Act 1965
The War Damage Act 1965 is an Act of United Kingdom Parliament which exempts the Crown from liability in respect of damage to, or destruction of, property caused by acts lawfully done by the Crown during, or in contemplation of the outbreak of, ...
, which changed the law on compensation resulting from scorched earth actions in Burma during the war. More recently, the Police (Detention and Bail) Act 2011 retroactively overrode a controversial court judgment resulting from an error in the drafting of the Police and Criminal Evidence Act 1984 that would potentially have invalidated thousands of criminal convictions.
Another example of an ''ex post facto'' criminal law in the UK is the Criminal Justice Act 2003
The Criminal Justice Act 2003 (c. 44) is an Act of the Parliament of the United Kingdom. It is a wide-ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland a ...
. 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 the murder of Stephen Lawrence
Stephen Lawrence (13 September 1974 – 22 April 1993) was a black British teenager from Plumstead, southeast London, who was murdered in a racially motivated attack while waiting for a bus in Well Hall Road, Eltham on the evening of 22 Apri ...
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 and double jeopardy
In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare case ...
laws.
Taxation law has on multiple occasions been changed to retrospectively disallow tax avoidance
Tax avoidance is the legal usage of the tax regime in a single territory to one's own advantage to reduce the amount of tax that is payable by means that are within the law. A tax shelter is one type of tax avoidance, and tax havens are jurisdi ...
schemes. The most significant example known concerns double-taxation treaty arrangements where the Finance Act 2008
The Finance Act 2008 (c 9) is an Act of the Parliament of the United Kingdom which changes the United Kingdom's tax law as announced in the budget on 12 March 2008 by Chancellor of the Exchequer Alistair Darling. It received royal assent on 21 ...
with BN66
Budget Note 66 (BN66) is the mechanism by which the UK government introduced clause 55 of the Finance Bill 2008, which would later become Section 58 of the Finance Act 2008. This specifically targeted tax planning and tax avoidance schemes tha ...
retrospectively amended 1987 legislation, creating large tax liabilities for 3,000 people where no liability existed before.
United States
Thomas Jefferson
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Father who served as the third president of the United States from 1801 to 1809. He was previously the natio ...
, one of the Founding Fathers of the United States
The Founding Fathers of the United States, known simply as the Founding Fathers or Founders, were a group of late-18th-century American Revolution, American revolutionary leaders who United Colonies, united the Thirteen Colonies, oversaw the Am ...
, stated in 1813 that:
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
is prohibited from passing ''ex post facto'' laws by clause 3 of Article I Article One may refer to:
Legal codes
* Article One of the United States Constitution, pertaining to the powers of the United States Congress
* Article One of the Constitution of India, pertaining to the federal nature of the republic
Other us ...
, Section 9
is a fictional gendarmerie-style information security and intelligence department from Masamune Shirow's ''Ghost in the Shell'' manga and anime series. In the franchise, its jurisdiction exists under the Ministry of Internal Affairs. In som ...
of the United States Constitution. The states are prohibited from passing ''ex post facto'' laws by clause 1 of Article I Article One may refer to:
Legal codes
* Article One of the United States Constitution, pertaining to the powers of the United States Congress
* Article One of the Constitution of India, pertaining to the federal nature of the republic
Other us ...
, 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 the Fourteenth Amendment. Over the years, however, when deciding ''ex post facto'' cases, the United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
has referred repeatedly to its ruling in '' Calder v. Bull'', in which Justice Samuel Chase
Samuel Chase (April 17, 1741 – June 19, 1811) was a Founding Father of the United States, a signatory to the Continental Association and United States Declaration of Independence as a representative of Maryland, and an Associate Justice of t ...
held that the prohibition applied only to criminal matters, not civil matters, and established four categories of unconstitutional ''ex post facto'' laws. The case dealt with the Article I, Section 10, prohibition on ''ex post facto'' laws, because it concerned a Connecticut state law.
Not all laws with retroactive effects have been held to be unconstitutional. One current U.S. law that has a retroactive effect is the Adam Walsh Child Protection and Safety Act of 2006. This law imposes new registration requirements on convicted sex offenders
A sex offender (sexual offender, sex abuser, or sexual abuser) is a person who has committed a sex crime. What constitutes a sex crime differs by culture and legal jurisdiction. The majority of convicted sex offenders have convictions for crime ...
and also applies to offenders whose crimes were committed before the law was enacted. The U.S. Supreme Court ruled in '' Smith v. Doe'' (2003) that forcing 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 against ''ex post facto'' laws, because these laws do not impose any kind of punishment. Nevertheless, the publicity created for convicted sex offenders creates social prejudice
Prejudice can be an affective feeling towards a person based on their perceived group membership. The word is often used to refer to a preconceived (usually unfavourable) evaluation or classification of another person based on that person's per ...
against them in many areas of life such as housing.
In ''Starkey v. Oklahoma Department of Corrections'', the Supreme 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."
Controversy has also arisen with regard to sexually 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 case '' Kansas v. Hendricks''.['' Kansas v. Hendricks'', .] In ''Hendricks'', a man with a long history of sexually molesting children was scheduled to be released from prison shortly after the enactment of Kansas
Kansas () is a state in the Midwestern United States. Its capital is Topeka, and its largest city is Wichita. Kansas is a landlocked state bordered by Nebraska to the north; Missouri to the east; Oklahoma to the south; and Colorado to th ...
's SVP act. Rather than being released, he was committed on the grounds that he had a mental abnormality. Hendricks contested the law on ''ex post facto'' and double jeopardy grounds. The Supreme Court of Kansas
The Kansas Supreme Court is the highest judicial authority in the state of Kansas. Composed of seven justices, led by Chief Justice Marla Luckert, the court supervises the legal profession, administers the judicial branch, and serves as the st ...
invalidated the Act, but the Supreme 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.
Another example is the Domestic Violence Offender Gun Ban
The Domestic Violence Offender Gun Ban, often called the "Lautenberg Amendment" ("Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence", , ), is an amendment to the Omnibus Consolidated Appropriations Act of 1997, enacte ...
, 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 a federal prison for possession of a firearm, regardless of whether the weapon was legally possessed when the law was passed. The law has been legally upheld because it is considered regulatory, not punitive; it is a status offense
A status offense is an action that is prohibited only to a certain class of people, and most often applied only to offenses committed by minors.
In the United States, the term status offense also refers to an offense such as a traffic violati ...
.
Another example is the Copyright Term Extension Act
The Sonny Bono Copyright Term Extension Act – also known as the Copyright Term Extension Act, Sonny Bono Act, or (derisively) the Mickey Mouse Protection Act – extended copyright terms in the United States in 1998. It is one of several a ...
which was retroactive since it affected both new works and existing ones, but it was upheld by decision Eldred v. Ashcroft. Also the Uruguay Round Agreement Act which restored copyright in foreign works, removing them from the public domain
The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired, ...
was also upheld by another decision, Golan v. Holder
The US military also recognizes ex post facto law. Common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
states that Courts-martial will not enforce an ex post facto law, including increasing amount of pay to be forfeited for specific crimes. (Se
United States v. Gorki 47 M.J. 370
.
Finally, in '' Calder v. Bull'', the court expressly stated that a law that "mollifies" a criminal act was merely retrospective, and was not an ''ex post facto'' law. Scholars have argued that, as a historical matter, the phrase ''ex post facto'' referred to civil as well as criminal laws.
In administrative law
Administrative law is the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as "regulations"), ad ...
, 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 in ''Bowen v. Georgetown University Hospital
''Bowen v. Georgetown University Hospital'', 488 U.S. 204 (1988), was a case in which the United States Supreme Court held that agencies should not be presumed to have the power to promulgate retroactive rules unless that power is expressly au ...
''.
The rules as they relate to the effects of ''ex post facto'' upon the U.S. Federal Sentencing Guidelines can be found in .
See also '' Bouie v. City of Columbia'', ''Rogers v. Tennessee
''Rogers v. Tennessee'', 532 U.S. 451 (2001), was a U.S. Supreme Court case holding that there is no due process violation for lack of fair warning when pre-existing common law limitations on what acts constitute a crime, under a more broadly wo ...
'', ''Stogner v. California
''Stogner v. California'', 539 U.S. 607 (2003), is a decision by the Supreme Court of the United States, which held that California's retroactive extension of the statute of limitations for sexual offenses committed against minors was an uncon ...
'', ''Republic of Austria v. Altmann
''Republic of Austria v. Altmann'', 541 U.S. 677 (2004), was a case in which the Supreme Court of the United States held that the Foreign Sovereign Immunities Act, or FSIA, applies retroactively. It is one of the most recent cases that deals wi ...
'', ''James Bamford
James Bamford (born September 15, 1946) is an American author, journalist and documentary producer noted for his writing about United States intelligence agencies, especially the National Security Agency (NSA). ''The New York Times'' has call ...
'' and '' Samuels v. McCurdy''.
Vietnam
''Ex post facto'' laws is defined in Article 152, 2015 Law on Promulgation of Legal Documents:
# Only in cases of extreme necessity to ensure the common good of society, to exercise the rights and interests of organizations and individuals prescribed in laws and resolutions of the National Assembly, legal documents of central government rules are retroactive.
# The retroactive effect is prohibited in the following cases: a) Impose legal liability for acts that at the time of committing such acts the law does not stipulate liability; b) Impose higher legal liability.
# Legislative documents of People's Councils, People's Committees at all levels, local governments in special administrative-economic units are not retroactive.
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 mitus'' laws'')''
Treatment by international organizations and treaties
International criminal law
In international criminal law
International criminal law (ICL) is a body of public 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 perpetrat ...
, the Nuremberg trials
The Nuremberg trials were held by the Allies against representatives of the defeated Nazi Germany, for plotting and carrying out invasions of other countries, and other crimes, in World War II.
Between 1939 and 1945, Nazi Germany invaded m ...
prosecuted war crimes and crimes against humanity perpetrated in World War II. Although the Nuremberg Charter
The Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (usually referred to as the Nuremberg Charter or London Charter) was the decree issue ...
, the procedural law
Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court, comprises the rules by which a court hears and determines what happens in civil, lawsuit, criminal or administrative proceedings. The rules a ...
under which the trials were held, postdated V-E Day
Victory in Europe Day is the day celebrating the formal acceptance by the Allies of World War II of Germany's unconditional surrender of its armed forces on Tuesday, 8 May 1945, marking the official end of World War II in Europe in the Easte ...
, the tribunal rejected the defence that the criminal law was ''ex post facto'', arguing it derived from earlier treaties like the Hague Conventions of 1899 and 1907. The International Criminal Court
The International Criminal Court (ICC or ICCt) is an intergovernmental organization and international tribunal seated in The Hague, Netherlands. It is the first and only permanent international court with jurisdiction to prosecute individuals f ...
established in 2002 cannot prosecute crimes committed before 2002.
Universal Declaration of Human Rights and related treaties
Article 11, paragraph 2 of the Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. Drafted by a UN committee chaired by Eleanor Roosevelt, ...
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 the International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, fr ...
, 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".
African Charter on Human and Peoples' Rights
Article 2, paragraph 7 of the African Charter on Human and Peoples' Rights
The African Charter on Human and Peoples' Rights (also known as the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent.
It emerged under ...
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."
American Declaration of the Rights and Duties of Man
Article 25 of the American Declaration of the Rights and Duties of Man
The American Declaration of the Rights and Duties of Man, also known as the Bogota Declaration, was the world's first international human rights instrument of a general nature, predating the Universal Declaration of Human Rights by less than a y ...
provides in part that " 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.
Arab Charter on Human Rights
Article 15 of the Arab Charter on Human Rights
The Arab Charter on Human Rights (ACHR), adopted by the Council of the League of Arab States on 22 May 2004, affirms the principles contained in the UN Charter, the Universal Declaration of Human Rights, the International Covenants on Human Right ...
provides that " 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."
European Convention on Human Rights
Effectively all European states (except Belarus
Belarus,, , ; alternatively and formerly known as Byelorussia (from Russian ). officially the Republic of Belarus,; rus, Республика Беларусь, Respublika Belarus. is a landlocked country in Eastern Europe. It is bordered by ...
), including all European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been de ...
and European Economic Area
The European Economic Area (EEA) was established via the ''Agreement on the European Economic Area'', an international agreement which enables the extension of the European Union's single market to member states of the European Free Trade As ...
states, are bound by the European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
. 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.
Grammatical form and usage
The '' Digesta Iustiniani'' (15.3.10.8.3, 20.1.22.pr2) ("Digest of Justinian
Justinian I (; la, Iustinianus, ; grc-gre, Ἰουστινιανός ; 48214 November 565), also known as Justinian the Great, was the Byzantine emperor from 527 to 565.
His reign is marked by the ambitious but only partly realized ''renovat ...
") contains the two-word phrase ''ex 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 phrase ''ex post facto'', (2.14.17.4.2, 4.6.17.1.1, ''passim''), suggesting that ''post'' might best be understood as an adverb. Other adverbial usages of ''post'' include the Classical Roman author and senator Marcus Tullius Cicero
Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the esta ...
employing phrases such as ''multis post annis'' (''De Re Publica
''De re publica'' (''On the Commonwealth''; see below) is a dialogue on Roman politics by Cicero, written in six books between 54 and 51 BC. The work does not survive in a complete state, and large parts are missing. The surviving sections deriv ...
'' 2.5.8 and elsewhere). Thus, ''ex post facto'' or ''ex postfacto'' is natively an adverbial phrase, a usage demonstrated by the sentence "He was convicted ''ex post facto'' (from a law passed after his crime)." The law itself would rightfully be a ''lex postfacta'' in Latin, although English generally uses the phrase "an ex post facto law".
In Poland the phrase '' lex retro non agit'' ("the law does not operate retroactively") is used.
See also
* ''A priori'' and ''a posteriori''
*
* ''Ex ante
The term ''ex-ante'' (sometimes written ''ex ante'' or ''exante'') is a phrase meaning "before the event". Ex-ante or notional demand refers to the desire for goods and services that is not backed by the ability to pay for those goods and servic ...
''
* ''Nulla poena sine lege
''Nulla poena sine lege'' (Latin for "no penalty without law", Anglicized pronunciation: ) is a legal principle which states that one cannot be punished for doing something that is not prohibited by law. This principle is accepted and codified in ...
'' – the principle that no one may be punished for an act which is not against the law
* Richard Roose
In early 1531, Richard Roose (also Richard Rouse, Richard Cooke) was accused of poisoning members of the household of John Fisher, Bishop of Rochester for which he was subsequently Death by boiling, boiled alive. Although nothing is known of Roos ...
* Rokotov–Faibishenko case
* Grandfather clause
A grandfather clause, also known as grandfather policy, grandfathering, or grandfathered in, is a provision in which an old rule continues to apply to some existing situations while a new rule will apply to all future cases. Those exempt from t ...
, which specifically allows things allowed before a law
* Bill of attainder
A bill of attainder (also known as an act of attainder or writ of attainder or bill of penalties) is an act of a legislature declaring a person, or a group of people, guilty of some crime, and punishing them, often without a trial. As with attai ...
, a legislative act which convicts and sentences a person without trial
References
External links
*
{{DEFAULTSORT:Ex Post Facto Law
Brocards (law)
Constitutional law
Criminal procedure
Ethically disputed judicial practices
Latin legal terminology
ja:法の不遡及