Ex post facto law
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An ex post facto law (Latin for "from a thing done afterward" or "after the deed"), also known as a retrospective law, is a law that acts retroactively, affecting facts or legal relationships that existed prior to the enactment of the law. In reference to criminal law, it is an attempt to criminalize an action that was legal when committed; or to aggravate a crime, or make it greater than it was, when it was committed; or to change or increase the punishment that was prescribed for a crime when it was committed, such as adding new penalties or extending terms; or to alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the crime's commission.
A hypothetical example: someone commits a brutal murder, but people think the existing laws will not punish the murderer severely enough; so the legislative powers enact laws that will more severely punish those who have committed the crime of murder ensuring that this specific murderer will get a prison sentence longer than that prescribed at the time he committed the crime.
A law may have an ex post facto effect without being technically ex post facto. For example, when a law repeals a previous law, the repealed legislation no longer applies to the situations it once did even if such situations arose before the law was repealed. The principle of prohibiting the continued application of these kinds of laws is also known as Nullum crimen, nulla poena sine praevia lege poenali.
Generally speaking, ex post facto laws are seen as a violation of the rule of law as it applies in a free and democratic society. Most common law jurisdictions do not permit retrospective legislation, though some have suggested that judge-made 'law' is retrospective as a new precedent applies to events that occurred prior to the judicial decision. In some nations that follow the Westminster system of government, such as the United Kingdom, ex post facto laws are technically possible as parliamentary supremacy allows the parliament to pass any law it wishes. However, in a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited.
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Ex post facto laws internationally
- Australia - Australia has no strong constitutional prohibition on ex post facto laws, though narrow retrospective laws may violate constitutional separation of powers principles. Courts do interpret statutes with a strong presumption that they do not apply retrospectively. Retrospective laws designed to combat tax avoidance were passed in the early 1980s by the Fraser government.
- France - any ex post facto criminal law may only be applied if it benefits the accused person (for instance, if weaker sentences are now applicable but were not previously applicable); otherwise, prohibited by the Declaration of the Rights of Man and of the Citizen.
- Indonesia - Article 28I of the Indonesian constitution prohibits trying citizens under retrospective laws in any circumstance. This was tested in 2004 when the conviction of one of the Bali bombers under retrospective anti-terrorist legislation was quashed.
- United Kingdom - Ex post facto laws are permitted under the doctrine of the 'sovereignty of parliament'; in criminal law, however, ex post facto laws are prohibited by article 7 of the European Convention on Human Rights.
- United States - Prohibited by Article I section 9 (applying to federal law) and section 10 (applying to state law) of the U.S. Constitution. Over the years, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in the Calder v. Bull case of 1798, in which Justice Chase established four categories of unconstitutional ex post facto laws. See also Fourteenth Amendment, Bouie v. City of Columbia, Rogers v. Tennessee
- Republic of Ireland - Prohibited by Article 15.5.1 of the Constitution of Ireland.
- Sweden - Retroactive penal sanctions and other retroactive legal effects of criminal acts, and retroactive taxes or charges due the State are prohibited by chapter 2, article 22, point 5 of the Instrument of Government (Regeringsformen).
European Convention on Human Rights
Most European nations, and all European Union nations, are bound by the European Convention on Human Rights. Article 7 of the convention prohibits ex post facto laws subject to two exceptions. It also prohibits a heavier penalty being imposed than was applicable at the time when an act was committed. The exceptions are:
- Acts illegal under international law at the time of their commission.
- Acts criminal according to "the general principles of law recognised by civilised nations".
Quotes
- "The sentiment that ex post facto laws are against natural right, is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong. Nor ought it to be presumed that the legislature meant to use a phrase in an unjustifiable sense, if by rules of construction it can be ever strained to what is just." (Thomas Jefferson, Letter to Isaac McPherson, August 13th, 1813)
See also
- Nulla poena sine lege - the principle that no-one may be punished for an act which is not against the law.