Article 7 – No punishment without law
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 nations.
Article 7 ECHR contains two paragraphs; The first one enunciates the principle ‘nullum crimen, nulla poena sine lege’. It prohibits criminal convictions and sentencing without legal basis. In addition to that, it contains the principle that criminal laws have to be sufficiently clear and precise so as to enable individuals to ascertain which conduct constitutes a criminal offence and to foresee what the consequences of transgressions will be.
The second sentence of the first paragraph provides that the penalty for criminal behavior must not be aggravated retroactively. The sanction meted out for a criminal offence must not be more severe than the one provided by law when the offences was committed.
The second paragraph was included to clarify that the prosecution of war crimes committed during the Second World War was not inconsisten with the Convention.
Criminal convictions and penalties have to be based on a law. The European Court of Human Rights interprets the term ‘law’ as in other articles of the Convention which employ it: The notion encompasses written and unwritten legal rules and entails certain qualitative requirements (Achour v France, para 42). In particular, the legal basis for a conviction has to be sufficiently clear and its scope must be foreseeable. However, absolute precision is not required (Soros v France, para 51). Laws use abstract terms and applying these terms to the facts at hand inevitably requires a certain degree of interpretation. Therefore, article 7 does not prohibit the gradual clarification of laws through judicial decisions and the development of case law. The Court acknowledges that the development of criminal law through case-law is an important part of the legal tradition of most states which have ratified the European Convention on Human Rights (Khodorkovsky and Lebedev v Russia, para 781).
Judgments interpreting the law have to be taken into consideration when assessing whether an act satisfies the test of foreseeability A law is sufficiently clear if the person affected could reasonably foresee its scope and expect to be prosecuted for certain acts, considering the case law of relevant courts and, if need be, after obtaining legal advice. In Cantoni v France, the applicant was the manager of a supermarket. He had been convicted of selling medicinal products, whose sale was reserved by law for pharmacies, in his supermarkets. The applicant contended that definition of the term ‘medicinal product’ provided in the law was not sufficiently clear and advanced that different French courts had made different rulings as to the question whether the substances he had offered were medicinal.
The European Court of Human Rights did not find a violation of article 7 ECHR. While conceding that there had been conflicting rulings by French first instance courts, it pointed out that the Courts dealing with appeals against first instance judgments had quashed the judgements holding that the products had not been medicinal and upheld those judgments that had qualified the products as medicinal. It also stated that the applicant had been the manager of a supermarket, from whom a high degree of professional caution could be expected and who could have obtained legal advice. Since the applicant could have established with appropriate advice that the sale of the products was prohibited, the law was sufficiently clear.
Article 7 does not furnish protection against changes in the interpretation of laws to the detriment of applicants. In K.-H. W v Germany, the applicant had been a border guard in the German Democratic Republic. After the construction of the Berlin wall, the government of the GDR had put into place a rigid policy to minimize the number of people fleeing the territory of the GDR to start a new life in western Germany. Crossing the border was labelled illegal and border guards were instructed to stop persons trying to leave the GDR without permission ‘at all costs’. In the early 1970s, the applicant killed a young man who tried to cross the border by shooting him in the head; for this, he was decorated and awarded a bonus. After the German reunification, the applicant was indicted and convicted for intentional killing by the Regional Court of Berlin. Having exhausted all domestic remedies, he submitted an application to the European Court of Human Rights. He contended that his conduct had not been punishable in the GDR and that he had been unable to foresee that he might face prosecution for his act, so that his criminal conviction was contrary to article 7 ECHR.
The Grand Chamber of the Court stated that there had been a conflict between the laws in force in the GDR and the official policy imposed. While the law had differentiated between different forms of border violations and allowed for lethal force only in exceptional cases, the political directive had been to stop illegal border crossing ‘at all costs’ and to ‘extinguish’ perpetrators if need be. The Court came to the conclusion that the applicant’s conduct had been illegal pursuant to the laws of the GDR, particularly in view of the commitment to human rights and human dignity entrenched in the constitution of the GDR and of the international human rights treaties it had acceded to. Turning to the question whether the conviction had been foreseeable, the ECtHR argued that the relevant laws of the GDR had been accessible to the applicant. Thus, it had been open to him to obtain information as to the legality of his conduct. The Court conceded that the applicant had not been prosecuted in the GDR. However, it pointed out that laws always required judicial interpretation and that such interpretation may change gradually. According to the European Court of Human Rights, this principle also applies if the competence to interpret these laws is transferred from one state to another.
Article 7 ECHR does not prohibit changes in the interpretation of a legal provision or a set of legal provisions to the detriment of the applicant. In Khodorkovsky and Lebedev v Russia, the applicants contended that their criminal conviction for tax evasion violated article 7 ECHR. They had been in charge of a large oil and gas company, Yukos. In order to minimize taxes the company had to pay for its revenues, the applicants had founded affiliates in parts of the Russian Federation in which companies benefitted from very favourable tax breaks. In fact, these affiliates had merely been ‘letter box companies’ without any assets, which had been run from Yukos headquarters. Following a fall-out between the first applicant and Russian President Putin, an investigation into the tax affairs of Yukos and the applicants was launched; the applicants were indicted and convicted for, among other offences, tax evasion. The Russian courts seized of the matter held that the tax liabilities of the applicants had to be based on realities rather than appearances (‘substance over form’). Tax declarations submitted on the basis that the business was actually conducted by the letter box companies were made in bad faith and therefore false. This constituted, in the view of the Russian courts, tax evasion.
The applicants averred that this conviction contravened article 7 ECHR. They stated that the techniques for tax minimization they and their company had employed had been commonplace among Russian companies, had been accepted by the authorities and that no one had ever been prosecuted or convicted for using them. For these reasons, they perceived their prosecution as selective and politically motivated.
The Court did not find a violation of article 7 ECHR. It conceded that the long lasting toleration of a conduct which would normally constitute a criminal offence may in principle lead to decriminalization of this behavior. However, in the Court’s view it was not clear that the techniques employed by other businesses had been the same. It stated that the conviction had been consistent with the essence of the offence as couched in Russian criminal law and could have reasonably been foreseen. Even though the conviction might have been novel, it was within the limits of the gradual clarification of legal provisions through case law (para 821).
The mere fact that a law has never been applied before (in a certain way) does not mean that it contravenes article 7 ECHR to base a conviction on this law. In Soros v France, the applicant was the manager of an investment fund. He was approached with view to participate in a plan to buy the majority of a Swiss bank. He rejected the offer, but purchased shares of the bank in question and sold them shortly after with considerable profit. A part of the shares was bought on the stock exchange in Paris. Following an investigation by the authority in charge of supervising the stock exchange, he was indicted and sentenced to a fine for insider trading. In the applicant’s opinion, this amounted to a breach of article 7 ECHR. He contended that the definition of insider trading was not clear enough; also, he pointed out that to this point of time only persons who had been employed by the company affected by a transaction had been considered ‘insiders’.
The European Court of Human Rights rejected this argument. While the applicant had been the first person to be convicted in this kind of constellation, it had been foreseeable that the law could be interpreted in this manner, in particular to a businessman such as the applicant.
Another example of a case in which the European Court of Human Rights dealt with a first time interpretation of a legal act by a domestic court is Jorgic v Germany. The applicant was a Bosnian citizen, who had lived in Germany for a period of time. In 1992, he had returned to his home town and, according to the findings of German courts, become the leader of a para-military group. He participated in driving Muslim men out of their villages and maltreating them, shot several persons and killed a prisoner. The German courts convicted the applicant of Genocide based on a provision which had been introduced into German law after Germany had acceded to the Genocide convention. In line with this Convention, German law had provided that certain acts constituted genocide if they were committed with the intent to destroy a national, racial, religious or ethnical group. The German courts based the applicant’s conviction on a broad understanding or the required intent: In their view, it was sufficient if the perpetrator sought to destroy a certain group as a social unity, even if he did not aim at the groups’ physical destruction. The applicant contended that this reading of the provision was not foreseeable, so that his conviction violated article 7 ECHR. He submitted in particular, that the ICTY had later on rejected the interpretation of genocide applied by the German Courts.
The European Court of Human Rights did not hold Germany in violation of article 7. It conceded that the majority of legal writers had been – contrary to the interpretation by German courts – of the opinion that genocide required the intent to destroy a group physically; however, it pointed out that there had also been scholars arguing for a broader understanding. In addition to that, the General Assembly of the United Nations had stated that no intent of physical destruction of a group was required for genocide. Thus, although no judicature regarding the interpretation of genocide had existed in Germany, the conviction had been within the margins of reasonable interpretation of the provision on genocide and had been foreseeable.
In some jurisdictions, several repeated acts committed over a period of time can be adjudicated together. They are referred to as continuing offences or continuing acts. Article 7 ECHR does not outlaw the inclusion of such acts in a conviction of a continuing offence which were committed before the offence was entrenched in law, provided the acts in question had been punishable before.
Criminal convictions and penalties may also be based on international law. This has particularly played a role in the context of war crimes.
In Kononov v Latvia, the applicant was a Latvian citizen who had been a soldier of the Soviet Army in the Second World War. He had obtained special training in sabotage operations and been deployed to his native village near the border between Belarus and Latvia. In 1944, the German army had disovered and killed a group of Red Partisans. The applicant had come to the conclusion that the whereabouts of the partisans had been given away by villagers cooperating with the Germans. The applicant and other members of his group of Soviet soldiers decided to take reprisals. They dressed in German uniforms, so as to enter the village without raising suspicion, and raided several houses in the village. They killed males and females whom they suspected of having collaborated with the German army and burnt down houses. After Soviet troops had conquered Latvia, the applicant was decorated with a high order.
In 1991, Latvia declared its independence. The applicant was indicted of war crimes and ultimately convicted of taking reprisals on civilians contrary to the rules of war. When the applicant had participated in killing the villagers, the Soviet criminal code of 1926 had been in force. The applicant was convicted on the basis of a provision of the Latvian criminal code, which had entered into force in 1961. The newly introduced criminal code also contained a provision which abolished the statute of limitation for war crimes retroactively. The applicant advanced the argument that his conviction breached article 7 ECHR. He stated, inter alia, that his acts had not constituted a crime under the 1926 criminal code, which constituted the law applicable to this actions.
The Grand Chamber of the European Court of Human Rights pointed out that the conduct of the applicant did not fall to be examined in light of international law rather than with regard to domestic legislation. It depicted the development of the rules and customs of warfare, referring to the Lieber rules, which had set out the boundaries of military actions in the American civil war, the Hague Convention and the Geneva convention and the International Military Tribunals in Nuremberg and Tokyo. According to the Court, it had been sufficiently clear at the relevant time that the applicant’s actions had been contrary to the customs of war; it also stated that states had already been permitted, if not required, to hold individuals responsible for violations of these rules. Given this, the Court considered that it had been foreseeable to the applicant that his actions constituted a crime and that he could be held criminally responsible for them. Consequently, the Court held that the conviction did not violate article 7 ECHR. It is noteworthy, though, that three dissenting judges were of the opinion that article 7 ECHR had been breached. They argued that the law as it stood when the applicant committed the acts in questions was clearer in hindsight – in light of the judgments by the tribunals of Nuremberg and Tokyo – than it had been at the times when the actions occurred. The development in the interpretation of the customs of war had not been clear at the time when the acts had been committed, so that the criminal conviction had not been foreseeable.