Nullum crimen sine lege, nulla poena sine lege (paragraph 1)

Article 7, paragraph 1 of the ECHR establishes a specific prohibition of retrospective criminal laws – the principle nullum crimen sine lege, nulla poena sine lege. No one shall be held guilty of any criminal offence on account of any act or omission that did not constitute a criminal offence under national or international law at the time when it was committed. In addition, a heavier penalty shall not be imposed than the one that was applicable at the time the criminal offence was committed. Therefore, the prohibition against retrospectivity relates to the factual substrates and heavier penalties.

Article 7 of the ECHR is one of the basic elements of the principle of the rule of law contained in Article I(2) of the Constitution of BiH. Thus, this principle has a prominent place in the system of protection of the rights safeguarded by the ECHR.¹⁴⁴⁴ The notion criminal offence is defined by adequate qualification standards stated in Article 6 of the ECHR (a criminal charge) and, therefore, Article 7 of the ECHR is also applicable to disciplinary and administrative proceedings, which fall under the scope of Article 6 of the ECHR.¹⁴⁴⁵ Whether or not the principle nullum crimen sine lege, nulla poena sine lege is violated may be assessed only after the exhaustion of all effective legal remedies available under the law.¹⁴⁴⁶

The punishment for a certain action must be stipulated by law at the time when the action is taken and it must be defined clearly and comprehensively to allow an individual to adjust his/her conduct accordingly. Therefore, it must be possible to observe the punishability from the linguistic interpretation of criminal-law provisions. Consequently, the prohibition of analogy in interpreting criminal-law provisions is applicable. Finally, the legal basis has to meet the principles of the rule of law.¹⁴⁴⁷

For that reason, the BiH Constitutional Court’s decision taken in Case No. AP 622/04 is unsatisfactory. By that decision, the Constitutional Court of BiH, without any further reasoning, rejected the appeal as prima facie inadmissible. Namely, the appellant complained that he had been convicted of the criminal offence of illicit production of and trafficking in narcotics. Pursuant to Article 2 of the Law on Production of and Trafficking in Narcotics,¹⁴⁴⁸ in the appellant’s view, marijuana, i.e., tetrahydrocannabinol, was not defined as a prohibited narcotic substance at the time he had committed the acts for which he was charged.¹⁴⁴⁹ The Law on Production of and Trafficking in Narcotics prohibited the production of and trafficking in narcotics (Article 1). Article 2 of the said Law provided the definition of synthetic and natural narcotics in general. However, pursuant to the provisions of that Article, the competent public health authorities were obliged to establish a list of prohibited narcotics, which had to be published in the OG of SFRY. The list of prohibited narcotics had existed since 1978.¹⁴⁵⁰ However, the new list, created on the basis of the Law on Production of and Trafficking in Narcotics, was neither established nor published. The Constitutional Court of BiH failed to deal with these allegations of the appellant. Pursuant to Article 7 of the ECHR, it was necessary to give an answer as to whether the 1978 Law was applicable. Furthermore, it was necessary to take into consideration the issue of “determinability” of the elements of the criminal offence of illicit production of and trafficking in narcotics in the relevant case given that the competent administrative authorities (the competent public health institution), which were legally obliged to define the elements of the criminal offence, failed to meet their legal obligation to create and to publish the list of prohibited substances.

Article 7 of the ECHR stipulates the prohibition on retrospective criminalisation, which applies only to the substantive laws, in conjunction with the punishability and the severity of punishment. Therefore, it is necessary to make a distinction between punishability and criminal prosecution. Circumstances preventing criminal prosecution such as, for example, a retrospective revocation of immunity, do not fall within the ambit of the protection afforded by Article 7 of the ECHR.¹⁴⁵¹ In addition, Article 7 of the ECHR does not apply to criminal procedural law. Finally, the prohibition of retrospective criminal laws also cannot be applied where the state retroactively specifies certain means of securing the conduct of criminal proceedings (such as, for example, an investigative detention because of circumstances that occurred before the relevant provision has become effective).¹⁴⁵²

Article 7 of the ECHR prohibits the imposition of a penalty which is heavier than the one that was applicable at the time the offence was committed. The imposition of lesser penalties does not fall within the scope of the protection offered by this Article. In cases where an injured party holds that a heavier penalty has been imposed, the injured party has the burden of proving the arguments before the court.¹⁴⁵³