Article 90 of the Croatian Constitution provides that « only individual provisions of a law may have retroactive effect for exceptionally justified reasons ». According to Croatian jurist Branko Smerdel, this means that « a law cannot be applied retroactively as a whole and regulations published on the basis of a legal authorization can never be applied retroactively. » [16] A law that makes illegal an act that was lawful at the time it was committed, increases penalties for a violation after it was committed, or changes the rules of evidence to facilitate conviction. The Constitution prohibits the subsequent enactment of laws. (See ex post facto (see also ex post facto).) For more information on ex post facto, see this article from the University of Chicago Law Review, this article from Berkley Law Review, and this article from the University of North Carolina Law Review. Retroactive 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[1] and Article 9 of the American Convention on Human Rights. [2] While U.S. jurisdictions generally prohibit retroactive laws, European countries apply the principle of lex mitior (« the most lenient law »). It provides that if the law has changed after a crime has been committed, the one that is most advantageous to the defendant is the one that is most advantageous. This means that in European legal systems, laws apply retroactively, as far as the most lenient law is concerned.
[3] The issue of retroactive duty was also relevant in the 1990s after German reunification, when there was a discussion of trials against GDR border troops who killed refugees at the internal German border (Mauerschützen trial). German courts have used the fraction-wheel formula in these cases. [23] Section 35(3) of the South African Bill of Rights retrospectively prohibits criminal laws, except that acts contrary to international law at the time they were committed may be prosecuted even if they were not unlawful under domestic law at the time. It also prohibits retroactive increases in penalties. Congress is prohibited from passing laws retrospectively, pursuant to Section 9 of the United States Constitution. States are prohibited from legislating retrospectively by tabling article 1, section 10, paragraph 1. This is one of the few restrictions that the U.S. Constitution placed on both federal and state government power prior to the Fourteenth Amendment. Thomas Jefferson described it as « equally unjust in civil and criminal cases. » Over the years, however, the U.S. Supreme Court has repeatedly relied on its decision in Calder v.
Bull to rule on cases after the fact, in which Justice Samuel Chase concluded that the prohibition applied only to criminal cases and not to civil matters, and established four categories of unconstitutional retroactive laws. [39] The case concerned Article I, Section 10, prohibiting ex post facto legislation, since it was a law of the State of Connecticut. Finally, in Calder v. Bull, the Court expressly stated that a law which « appeases » a criminal offence is only a retroactive law and not retroactive. [47] The researchers argued that the term a posteriori refers to both civil and criminal law. [48] Subsequent punishment in criminal and administrative law is prohibited by Article 54 of the Russian Constitution; subsequent tax laws by Article 57 of the Constitution. Whether a law is an afterthought is sometimes debated. In real life, it`s not always so obvious. Former Interior Minister Päivi Räsänen was the subject of a criminal investigation in late 2019 on suspicion of inciting hatred against an ethnic group because of her text on homosexuality, published online in 2004. The statute of limitations for this charge is five years, which has led to the case being interpreted as retroactive.
However, agitating against an ethnic group is an ongoing crime, and the statute of limitations does not begin until the offending material has been removed from the public. The investigation was nevertheless described as strange, as Räsänen`s text is not the only material on the internet or otherwise that could be considered incitement against an ethnic group, and the distinction between who should and should not be prosecuted for publishing and/or making available such material is unclear. [17] [18] Ex post facto laws are widely considered unjust and their enforcement is associated with oppressive governments. Although ex post facto laws are often prohibited, some countries, such as the UK, have no rules against them. Ex post facto laws are defined in Article 152 of the 2015 Law on the Promulgation of Legal Documents: The courts have applied this standard to different parts of criminal proceedings. California Dep`t of Corrections v. Morales, 514 US 499 (1995) takes the Beazell standard and applies it to the probation process. In Morales, California amended a law stipulating that the California Board of Prison Terms can postpone probation hearings for up to three years for a prisoner convicted of more than one homicide offense. The defendant Morales was imprisoned before the law was changed, and he was then assigned when he requested a probation hearing. In his complaint, he claimed that the amendment violated the retroactive ban. The Supreme Court ruled in Beazell`s application that a change affecting a person currently imprisoned in a law does not violate retrospectively if the change does not increase the sentence for the defendant`s crime. The court found that the change in this case had no impact on Morales` sentence or on a substantial attempt to obtain parole.
The court found that a simple change in the procedure for obtaining an inmate`s parole does not violate retroactive prohibitions. Some of the Nazis convicted at the Nuremberg trials argued (unsuccessfully) that the international laws they broke were ex post-facto laws. In the oft-cited case Beazell v. Ohio, 269 U.S. 167 (1925), the Supreme Court defined the scope of ex post facto constitutional restrictions: According to Article 5, Section XXXVI of the Brazilian Constitution, laws may not have retroactive effects that affect acquired rights, acts performed and legal force.