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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.