Ex post facto law
An ex post facto law[1] is a law 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 actions that were legal when committed; it may aggravate a crime 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; it may extend the statute of limitations; or it may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.
"Ex Post Facto" redirects here. Not to be confused with XPostFacto. For the Star Trek episode, see Ex Post Facto (Star Trek: Voyager).
Conversely, a form of ex post facto law commonly called an amnesty law may decriminalize certain acts. (Alternatively, rather than redefining the relevant acts as non-criminal, it may simply prohibit prosecution; or it may enact that there is to be no punishment, but leave the underlying conviction technically unaltered.) 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 jurisdictions do not permit retroactive criminal legislation, though new precedent 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, ex post facto laws may be possible, because the doctrine of parliamentary supremacy allows Parliament to pass any law it wishes, within legal constraints. In a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited or allowed, and this provision may be general or specific. For example, Article 29 of the Constitution of Albania explicitly allows retroactive effect for laws that alleviate possible punishments.
Ex post facto criminalization is prohibited by Article 7 of the European Convention on Human Rights, Article 15(1) of the International Covenant on Civil and Political Rights,[2] and Article 9 of the American Convention on Human Rights.[3] 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.[4]
Ex post facto laws by country[edit]
Australia[edit]
Australia has no strong constitutional prohibition on ex post facto laws, although narrowly retrospective laws might violate the constitutional separation of powers principle. Australian courts normally interpret statutes with a strong presumption that they do not apply retrospectively.
Retrospective laws designed to prosecute what was perceived to have been a blatantly unethical means of tax avoidance 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).
Australia participated in drafting the Universal Declaration of Human Rights and was an original signatory in 1948.[5][6] 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.[7] The Australian Human Rights Commission states the Declaration is an "expression of the fundamental values which are shared by all members of the international community" but "does not directly create legal obligations for countries."[8]
Australia is a party to the International Covenant on Civil and Political Rights.[9] The implementation of retrospective criminal laws is expressly prohibited by the Covenant.[10] Australia is also a party to the Optional Protocol to the International Covenant on Civil and Political Rights.[11] The Protocol enables individuals subject to the jurisdiction of a state party to file complaints with the United Nations Human Rights Committee for that state party's non-compliance with the International Covenant on Civil and Political Rights.[12]
Brazil[edit]
According to the 5th Article, section XXXVI[13] of the Brazilian Constitution, laws cannot have ex post facto effects that affect acquired rights, accomplished juridical acts and res judicata.
The same article in section XL[13] prohibits ex post facto criminal laws. Like France, there is an exception when retroactive criminal laws benefit the accused person.
Canada[edit]
In Canada, ex post facto criminal laws are constitutionally prohibited by section 11(g) of the Charter of Rights and Freedoms. Also, under section 11(i) of the Charter, if the punishment for a crime has varied between the time the crime was committed and the time of sentencing following a conviction, the convicted person is entitled to the lesser punishment. Due to section 1 and section 33 of the Charter of Rights and Freedoms these rights are not absolute, and may be overridden.
The Canada sex offender registry, which went into effect on December 15, 2004, is somewhat retroactive. When the registry was created, all offenders who were on the Ontario 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.[14] 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.[15][14][16] 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 was ordered to forfeit proceeds from a book he had published (after being paroled from prison) under a Saskatchewan law. Although the law was passed long after Thatcher's murder conviction, the courts have ruled that such laws prescribe only civil penalties (as opposed to additional criminal penalties) and are thus not subject to Charter restrictions.
Croatia[edit]
Article 90 of the Constitution of Croatia states that "only individual provisions of a law may have a retroactive effect for exceptionally justified reasons". According to Croatian legal scholar Branko Smerdel, this means that "a law cannot be applied retroactively as a whole, and regulations enacted pursuant to statutory authority can never be applied retroactively".[17]
Treatment by international organizations and treaties[edit]
International criminal law[edit]
In international criminal law, the Nuremberg trials prosecuted war crimes and crimes against humanity perpetrated in World War II. Although the Nuremberg Charter, the procedural law under which the trials were held, postdated V-E Day, 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 established in 2002 cannot prosecute crimes committed before 2002.
[edit]
Article 11, paragraph 2 of the Universal Declaration of Human Rights provides that no person be held guilty of any criminal law that did not exist at the time of offence nor suffer any penalty heavier than what existed at the time of offence. It does however permit application of either domestic or international law.
Very similar provisions are found in Article 15, paragraph 1 of the International Covenant on Civil and Political Rights, replacing the term "penal offence" with "criminal offence". It also adds that if a lighter penalty is provided for after the offence occurs, that lighter penalty shall apply retroactively. Paragraph 2 adds a provision that paragraph 1 does not prevent trying and punishing for an act that was criminal according to the general principles of law recognized by the community of nations. Specifically addressing the use of the death penalty, article 6, paragraph 2 provides in relevant part that a death sentence may only be imposed "for the most serious crimes in accordance with the law in force at the time of the commission of the crime".
African Charter on Human and Peoples' Rights[edit]
Article 2, paragraph 7 of the African Charter on Human and Peoples' Rights provides in part that "no one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed."
American Declaration of the Rights and Duties of Man[edit]
Article 25 of the American Declaration of the Rights and Duties of Man provides in part that "[n]o person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law." The right to be tried in accordance to "pre-existing law" is reiterated in article 26.
Arab Charter on Human Rights[edit]
Article 15 of the Arab Charter on Human Rights provides that "[n]o crime and no penalty can be established without a prior provision of the law. In all circumstances, the law most favorable to the defendant shall be applied."
European Convention on Human Rights[edit]
Effectively all European states (except Belarus), including all European Union and European Economic Area states, are bound by the European Convention on Human Rights. Article 7 of the Convention mirrors the language of both paragraphs of Article 15 of the International Covenant on Political and Civil Rights, with the exception that it does not include that a subsequent lighter penalty must apply.
Grammatical form and usage[edit]
The Digesta Iustiniani (15.3.10.8.3, 20.1.22.pr2) ("Digest of Justinian") 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 employing phrases such as multis post annis (De Re Publica 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.[54]