Course: European Criminal Law SS 2009 Hubert Hinterhofer

Important Fundamental Rights No Punishment without Law (Art 7 ECHR) – Text (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 recognized by civilized nations.

Important Fundamental Rights No Punishment without Law (Art 7 ECHR) – 2 key principles of criminal law No retrospective application of criminal law > case Vebber/Estonia Sufficient accessibility and precision of criminal law provisions – Does not prevent a conviction that is based on unwritten criminal law – Art 7 only refers to criminal proceedings > “offence”: autonomous definition of the ECouHR

Important Fundamental Rights No Punishment without Law (Art 7 ECHR) – Developments in common law systems No breach of Art 7 when developments are consistent with the essence of the offence and could have been reasonably foreseen > see case S.W./UK – Prevention of a heavier penalty > “penalty”: autonomous definition of the ECouHR – Prevention of a retrospective application of criminal law

Important Fundamental Rights No Punishment without Law (Art 7 ECHR) – Case S.W./UK Conviction of a husband for rape against his wife Relevant English Law – Sexual Offences Acts 1956 and 1976 – “Marital Immunity” as a general principle in common law – Court of Appeal and House of Lords in the case R./R. “A rapist remains a rapist irrespective of his relationship with his victim” “Marital Immunity” as “anachronistic and offensive”.

Important Fundamental Rights No Punishment without Law (Art 7 ECHR) – Case S.W./UK Decision of the ECouHR – Irrelevance of the “Marital Immunity” principle is part of a “perceptible line of case-law development” – Absence of immunity was consistent with the essence of the offence of rape – Absence of immunity was a reasonably foreseeable development of English law – No violation of Art 7 ECHR

Important Fundamental Rights Abolition of Death Penalty – Development in law Art 2/1 ECHR: permission of death penalty if death penalty is provided by law and conviction by a court ( ) Art 2 Add Protocol 6: death penalty only permitted in time of war or imminent threat of war; abolished in peace time ( ) Art 1 Add Protocol 13: complete abolition and prohibition of death penalty (no passing of death penalties; no executions); since 2003 – No passing of a death sentence – No executions – No derogation and no reservation to the Prot. permissible

Important Fundamental Rights Abolition of Death Penalty – Important in extradition cases where there is a risk of death penalty in the requesting state – No judgment of ECouHR so far that is based on Add Prot No 13, but important older cases – Case Nivette/France (2000) Obligation to reject extradition in cases of serious risk of death penalty in the requesting state Risk of death penalty can be eliminated by guarantees of the requesting state not to impose death penalty Life imprisonment without possibility of an early release could violate Art 3 ECHR

Important Fundamental Rights Abolition of Death Penalty – Einhorn v France (2001) Extradition of suspects being exposed to the risk of death penalty In certain circumstances: violation of Art 3 ECHR (inhuman and degrading treatment) due to the death row phenomenon (based on the Soering judgment) Obligation to reject extradition in cases of serious risk of death row phenomenon in the requesting state Risk of death penalty can be eliminated by guarantees of the requesting state not to impose death penalty