The Prohibition of Retroactive Application in Criminal Law: Fundamental Principles and Applications

One of the fundamental principles of criminal law, the "prohibition of retroactive application," aims to ensure the reliability and fairness of the law. This principle prevents individuals from being subjected to harsher criminal laws enacted later for actions they committed in the past. In this article, we will examine the scope, historical development, constitutional and legal foundations, place in international law, and various examples of the prohibition of retroactive application in criminal law.

Definition and Fundamental Principles of the Prohibition of Retroactive Application

Definition

The principle of non-retroactivity of law prevents individuals from being subjected to harsher criminal penalties for acts committed that were not in effect at the time the act was committed. This principle is a reflection of the principles of legal certainty, definitiveness, and justice.

Basic Principles

1. Principle of Legality: For an act to be defined as a crime and punishable, it must have been considered a crime under a law in force at the time it was committed. The principle of "Nullum crimen, nulla poena sine lege" (No crime or punishment without law) forms the basis of this principle.
2. The Principle of the Law in Favor of the Defendant: If a change in law creates a situation in favor of an individual, that change can be applied retroactively. This principle ensures that the individual faces a lighter sentence and reinforces the principle of humanity in criminal law.
3. Legal Security and Certainty: The predictability of individuals' legal situations and their protection from negative retroactive effects of changing laws are crucial for ensuring legal security.

Constitutional and Legal Foundations

Constitution

Article 38 of the Turkish Constitution explicitly regulates the prohibition of retroactive application in criminal law:

Article 38 of the Constitution – Principles relating to crimes and punishments:

(1) No one can be punished for an act which was not considered a crime by the law in force at the time it was committed; no one can be given a heavier punishment than that prescribed by law for that crime at the time it was committed.

This provision constitutionally guarantees the principle of legality of crimes and punishments, and the prohibition of retroactive application.

Turkish Penal Code

The Turkish Penal Code (TCK) also adopts and regulates this principle:

Turkish Penal Code Article 7 – Application in terms of time:

(1) No one can be punished for an act which was not considered a crime by the law in force at the time it was committed. No heavier penalty can be imposed than that prescribed by the law in force at the time the crime was committed. (2) If a law that comes into force after the crime has been committed mitigates the penalty for the offending act or removes the act from the list of offendings, the new law shall apply and be enforced. (3) Other laws that are in favor of the convict shall apply retroactively.

These articles contain the fundamental regulations regarding the application of the prohibition of retroactive application in criminal law.

Historical Development

The principle of non-retroactivity has held a significant place throughout the history of law. From Roman law to modern legal systems, this principle has been an indispensable element in ensuring legal certainty and justice. In the Middle Ages, it also gained importance as a means of limiting arbitrary punishments and the absolute powers of the king. Modern constitutions and international legal documents safeguard this principle, thereby guaranteeing the fundamental rights of individuals.

Prohibition of Retroactive Application in International Law

European Convention on Human Rights (ECHR)

Article 7 of the ECHR regulates the prohibition of retroactive application:

Article 7 of the ECHR – No punishment without law:

(1) No one shall be convicted of any act or omission which did not constitute a criminal offence under national or international law at the time it was committed. Nor shall a heavier penalty be imposed than that applicable at the time the criminal offence was committed.

This provision has also been interpreted and applied by the European Court of Human Rights (ECtHR) in numerous decisions.

United Nations Covenant on Civil and Political Rights (UNCPR)

Article 15 of the UNCLOS explicitly regulates the prohibition of retroactive application:

Article 15 of the UNCLOS – Prohibition of retroactive application:

(1) No one shall be convicted of an act which did not constitute a criminal offence under national or international law at the time it was committed. Likewise, no heavier penalty shall be imposed than that applicable at the time the criminal offence was committed.

Applications and Examples

Constitutional Court Decisions

The Turkish Constitutional Court has issued numerous rulings assessing whether the principle of retroactive application of laws has been violated. These decisions oversee the compliance of criminal laws with the principle of retroactive application and protect the rights of individuals.

Example Decision 1: [Constitutional Court, Case No. 2011/111, Decision No. 2012/59, Date: 11.04.2012]

In this decision, the Constitutional Court ruled that a harsher penalty that came into effect after the date the crime was committed cannot be applied. This decision underlines the importance of the prohibition of retroactive application in protecting individual rights.

Supreme Court Decisions

The Supreme Court has also developed numerous precedents regarding the principle of non-retroactivity of judgments. These precedents serve as important guidelines in the application of criminal law.

Example Decision 2: [Supreme Court Criminal General Assembly, Case No. 2015/1-182, Decision No. 2016/54, Date 15.03.2016]

In this decision, the Criminal General Assembly of the Court of Cassation emphasized that the law in favor of the perpetrator shall apply retroactively, and that this principle is one of the cornerstones of criminal law.

Conclusion

The prohibition of retroactive application of laws in criminal law is of great importance in ensuring legal certainty and justice. This principle ensures the reliability of the law by preventing individuals from being subjected to harsher criminal laws enacted later for acts they have committed. This principle, explicitly regulated in the Constitution and the Turkish Penal Code, also holds a significant place in international law. The prohibition of retroactive application is indispensable for protecting the fundamental rights of individuals and ensuring the humane application of criminal law.