Article 7

Article 7 | Anti-retrospective conviction

Read posts on this Article

Article 7 of the European Convention on Human Rights provides as follows:

(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

(2) This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised norms.

The corresponding right in the EU Charter is Article 49 on Principles of Legality and Proportionality of Criminal Offences and Penalties. Its wording is identical to Art. 7 ECHR (1) and (2), apart from the reference to “civilised nations” in (2), for which it substitutes “the community of nations”. The reason for this substitution is more to do with fashion than with legal principle. It further adds in 49(1) the rule of the retroactivity of a more lenient penal law, which exists in a number of Member States of the EU. In addition, it contains a third proviso that

(3) The severity of the penalties must not be disproportionate to the criminal offence.

Art.7 is limited to retrospective criminal measures. The Strasbourg Court has not applied it in such a way as to ossify policy in the criminal sphere, although it is important to flag up at this stage that it is one of the Convention’s non-derogable rights.

The Strasbourg authorities have also stated that Art.7 does not require a restrictive reading of the criminal law (Application No.00008710/79 DR 28). States may adopt an extensive interpretation of an offence if this is necessary to adapt it to developments of society, but such an extension must be foreseeable by the citizen: Application No.00013079/87 60 DR 256. In SW v United Kingdom : CR v United Kingdom (1995)  21 EHRR 363 the applicants complained that they had been made retrospectively criminally liable for rape within marriage, since at the time of the commission of their offence, there was still an exception in the criminal law for intercourse in marriage. The Court rejected this argument, saying that the applicants must have anticipated the necessary evolution of the law on marital rape and that it was reasonably foreseeable that they would be prosecuted. The Court found that the concept of lawfulness in Article 7 does not prevent the gradual clarification of the criminal law from case to case, ‘provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen’.

Article 7(2) EHCR (and, by analogy, Article 49(2) of the Charter) has been included to avoid the situation whereby in the aftermath of World War II the principle of legality would be used to protect defendants from being prosecuted for war crimes which did not of course constitute criminal offences under the law of the relevant states at the time of their commission. The tendency is to limit the application of Article 7(2) to cases arising out of the Second World War only.

The European Court of Justice has followed closely the Strasbourg Court’s jurisprudence on Article 7 ECHR, and the Strasbourg Court has, in turn, examined the wording of Article 49 of the Charter in order to interpret the scope of Article 7 ECHR (Scoppola II, 2012). In that case, the Strasbourg Court extended the application of Article 7(1) to align its scope with the wording of Article 49(1) of the Charter in order to take into account the evolution of the principle of legality in international and EU law:

The Court therefore concludes that since X v Germany a consensus has gradually emerged in Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, has become a fundamental fundamental principle of criminal law.

Indeed, in recent clears the Court of Justice has started to replace references to the ECHR Art.7 with references to the Charter Art.49 since it provides wider protection.


Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: