Nulla poena sine lege

The principle of nulla poena sine lege (Latin ) literally means " no punishment without law " and is referred to as non-retroactivity in criminal law. It was formulated by Anselm von Feuerbach. After a criminal punishment can only be effective legal consequence of a situation when this is fixed as certain, not merely determinable facts in a formal law.

Synonymous nullum crimen partly sine lege ( " no crime without law " ) is used. The principle is in legal history - been linguistically and normative expanded to the extent that a written record of criminality ( nulla poena sine lege scripta ) before committing the act ( nulla poena sine lege praevia ) is required - in ancient Rome. Also a sufficient certainty of the law ( nulla poena sine lege certa ) is required, and there must be no analogy to be made at the expense of the offender on the text of the law beyond ( nulla poena sine lege stricta ).

In modern constitutions this commandment is one of the fundamental rights of justice.

The only comparable provision of the Roman law, " poena non irrogatur, nisi quae Quaque lege vel quo alio jure specialiter Huic delicto imposita est" ( " a penalty is imposed only when specifically assigned to this offense by a law or by any other statute been is " ), was weaker than that of Feuerbach principle because they only said that the punishment should be fixed somehow. Neither she required a law nor implied analogy it a ban.

Functions

The standard has different functions and effects.

Subject of the law

Nulla poena sine lege is a form of the title of the law. The criminalization of behavior - the act or omission - is to be determined, this alone assigned to the legislature. This causes constitutionally an exclusive competence mapping. Another feature is that all traffic rules are fixed.

In modern constitutions, in which the legislature is the Parliament, the rule also acts as parliamentary approval and has a democratic function by assigning the power of popular representation in criminal policy. In constitutions with consistently applied the standard separation of powers at the same time deprives the courts the opportunity to determine the criminality of an act itself - whose sole purpose is the application of existing standards. The situation is different in jurisdictions that use the so-called case law.

Binding of the legislature: principle of certainty according to Article 103 § 2 of the Basic Law

Wording of Article 103 § 2 of the Basic Law for the Federal Republic of Germany (GG):

( 2) No one may be punished only if the offense was by law before the act was committed.

The standard limits the discretion of the legislature, by prohibiting him to create standards that are not adequately defined and left it to the right users, to expand the scope of criminal liability, such as clauses like " or similar acts " or " other acts ".

Binding of the user's laws (courts ): analogy ban

The standard limits the room for maneuver of the legal user by prohibiting him to close gaps by criminal culpability standard interpretation. Extreme limit of interpretation is the text of a penal provision.

Binding of the legislature: retroactivity

An act may only be punished if she was threatened at the time of their execution with punishment. Retroactive laws to the detriment of the offender are not allowed. The legislature may assign an already completed state of affairs no new legal consequence.

According to the Federal Constitutional Court retroactivity does not apply to acts which are legal only because of a " unbearably unjust " law. This exclusion clause of retroactivity was first formulated by Gustav Radbruch and is therefore also called Radbruch formula.

Legal situation in Germany

In Germany Paul Johann Anselm Feuerbach regarded as one who postulate in his textbook of the common law in force in Germany embarrassing (casting 1801) introduced. In the Weimar Constitution the principle nulla poena sine lege was in Article 116 commits. At the time of National Socialism, he was by the " Act to amend the Criminal Code " lifted on 28 June 1935, and instead codified 2 of the Criminal Code the following in §: " Punished is who commits an act which the law declares punishable or after the basic idea a penal law and deserves punishment for healthy popular sentiment. Finds on the fact no specific criminal law directly applicable, so the act is punished according to law, whose basic idea on it best describes. " Today, he is taken in Germany both in § 1 of the Criminal Code and in the Constitution (Article 103 § 2 of the Basic Law). Against violations of this fundamental right under Article 93 of the same law is paragraph 1 No. 4a GG open the constitutional complaint. This is the criminal use get from the outset a constitutional framework and prevent a sense criminal law.

The retroactivity precipitates in the rule of law (Article 20, paragraphs 1 and 3 of the Basic Law ) is. The there immanent principle of the protection also means resistance of the laws. Who is affected by a law can also rely on the validity of the provision.

Legal situation in Austria

In Austria, the principle " no punishment without law " in § 1 of the Penal Code is regulated. By signing the European Convention on Human Rights in 1958, Austria 's international law, at the latest by Federal Law Gazette No. 59/1964 also constitutionally to this principle (Article 7 of the ECHR ) bound.

Before that, the principle was laid down simply by law in Article IV of the Criminal Code ( the predecessor of the Criminal Code) and could therefore be ignored that a newly created penal provision providing for their application on deeds in the past, as this retroactivity provision of the principle " no punishment without law " would displace as lex specialis. Such was about the Criminal Law Amendment 1931, which inserted into the Criminal Code, a new § 205c ( infidelity ), expressly in Article III their retroactive application before: " This Act shall enter into force on 15 December 1931. Its provisions shall also apply to acts which were committed before that date, if not since the limitation period has expired. "

Individual cases

A breach of the principle was the Lex van der Lubbe. The extent to which the Nuremberg trials acclaimed retroactivity during the period of occupation in Germany after 1945, is controversial.

European Convention on Human Rights

Article 7, paragraph 2 of the ECHR makes of this retroactivity an exception insofar as the punishment is not prevented if the act " at the time of its commission in accordance with generally recognized by civilized nations principles of law was punishable " already (so-called Nuremberg clause).

Other Areas of Law

The principle has now been extended to other fields of law and widely accepted, such as in tax law: nullum tributum sine lege.