Ex post facto law

The legal concept of retroactivity is concerned with the question of whether laws can take effect for periods prior to its entry into force. Technically, it is a substantive constitutional requirement concerning the temporal and spatial scope if necessary.

Retroactivity

Retroactivity would be one of the basic conditions of liberal constitutions, the principle of legal certainty of the law contradict, and is therefore in principle not allowed. Everyone should generally be able to trust that his lawful act does not affect adversely later.

The retroactivity principle prohibits State acts to change the legal standards or procedures, so that at last action now another train is made. The problem here is that the addressee of the norm could not adjust to this episode at the time of its original behavior.

The retroactivity has its roots in the rule of law. The there -founded principle of the protection means protection of confidence in the stability and sustainability of the laws. Who is affected by a law can rely on the validity of the provision.

An exception is then considered:

• If public confidence is not worthy of protection, so he had to reckon with a new regulation or
• If he legitimately did not could trust
• If it is provided solely better with the new rules
• Require overriding reasons in the public interest, the retroactivity
• A vain Act is replaced by a new system or
• The existing legal situation is unclear.

Completely inadmissible retroactivity in criminal law. This principle is expressly governed paragraph 2 Basic Law in Article 103, and be found in § 1 of the Criminal Code again. In tax law or administrative law is likely to be problematic regularly retroactivity.

• Retroactivity in criminal law ( nulla poena sine lege )
• Retroactivity in public law (including tax law - nullum tributum sine lege ).

Conceptual framing

The Federal Constitutional Court has characterized the distinction between genuine and non-genuine retroactive effect. Conceptually distinguishes the 1st Senate genuine and spurious feedback. In contrast, the second Senate no longer used for years these two terms. Rather, he distinguishes between Rückbewirkung of legal consequences and a self- concept of retroactivity factual back linking.

Real feedback effect

The real reaction occurs when the start of the temporal scope of a law is set to a date which is prior to the date on which the law is valid. Here is a post- intervention changing place in a closed, belonging to the past state of affairs. A genuine retroactivity would one of the basic conditions of liberal constitutions, the principle of the reliability of the legal system ( legal certainty ) contradict, and is therefore not permitted. Basically everybody can be confident that a lawful act it is not attributed to adversely at a later date ( Legitimate ). Exceptions are made, however, if public confidence is not worthy of protection, he therefore had to reckon with a new regulation, a vain Act is replaced by a new system, require overriding reasons in the public interest, the retroactive effect, only formally unconstitutional law formally duly new with retroactive effect is decided or the previous legal situation is unclear and confused, because in the latter case can not have existed a legitimate expectation from the outset.

Rückbewirkung of legal consequences

The legal consequences of a norm should work for a specified period that is before the announcement ( temporal scope ). Principle and exceptions but as the first Senate determines the 2nd Senate in true retroactivity.

Spurious feedback

In the sham feedback the legal consequences of a law occur only after promulgation of the standard, but their offense recorded facts which " were put into effect " before the announcement. The regulations establish in this variant of the current, unfinished matters with legal consequences for the future, making the affected acquired in the past legal position is then canceled afterwards.

If the simulated feedback effect is possible in principle, is to be granted by eg transitional arrangements the person concerned Legitimate then at a interests and weighing of goods under consideration of the protection of fundamental rights and the meaning and purpose of the law, if his legitimate expectation on the previous state of the law predominates.

Constituent elements of offenses rear linkage

For future legal consequences can follow a standard in their event to circumstances which arose prior to the delivery of the standard to ( material scope ). Principle and exceptions determined the 2nd Senate but also as the first Senate in the spurious feedback.

Retroactivity in administrative law

In administrative law, one encounters often retroactivity of administrative acts. So the withdrawal ( § 48 Administrative Procedures Act ) an unlawful administrative acts either on the date back, in which it was adopted and in effect ( ex tunc ) or it loses its effect for the future (ex nunc ) (§ 48 para 1 sentence 1 Administrative Procedures Act ). However, the revocation of a lawful administrative act ( § 49 Administrative Procedures Act ) typically applies only to the future. But here is an administrative act, in money or in kind, under certain conditions, be revoked for the past ( § 49 para 3 Administrative Procedure Act ).

It should be noted that a significant in this context, decision of the Federal Constitutional Court was made ( speculation period for sale of land and shares in companies and taxation of severance payments and similar compensation ) on 7 July 2010. Thereafter, the subsequent taxation of " already incurred, acquired tax-free capital gains ," not by " the mere intention to make government more income " be justified. Thus, the protection of legitimate expectations has been given priority over retrospective tightening. Gains which were received already tax free so prior to the introduction of the new law or could be collected may not be retroactively subject to taxation.

Retroactivity in international law

A special role is played by the retroactivity of laws in international law. Under Article 7, paragraph 2 of the European Convention on Human Rights is not excluded by the non-retroactivity, " that someone is convicted or punished for an act or omission which was punishable at the time of its commission in accordance with recognized by civilized nations general principles of law. " This includes for example, genocide or crimes against humanity. On this legal basis, the punishment of dictators is possible for example.