Ex post facto laws by
country
Australia
Australia has no strong constitutional prohibition on ex
post facto laws, although narrowly retroactive laws might violate the
constitutional separation of powers principle. Australian courts normally
interpret statutes with a strong presumption that they do not apply
retroactively.
Retroactive laws designed to prosecute what was perceived to
have been a blatantly unethical means of tax avoidance were passed in the early
1980s by the Fraser government (see Bottom of the harbour tax avoidance).
Similarly, the retroactive effect of legislation
criminalizing certain war crimes retroactively have been held to be
constitutional (see Polyukhovich v Commonwealth).
The government will sometimes make a press release that it
intends to change the tax law with effect from the date and time of the press
release, before legislation is introduced into parliament.
Brazil
According to the 5th Article, section XXXVI of the Brazilian
Constitution, laws cannot have "ex post facto" effects that affect
acquired rights, accomplished juridical acts and res judicata.
The same article in section XL prohibits ex post facto
criminal laws. Like France, there is an exception when retroactive criminal
laws benefit the accused person.
Canada
In Canada, ex post facto criminal laws are constitutionally
prohibited by paragraph 11(g) of the Charter of Rights and Freedoms. Also,
under paragraph 11(i) of the Charter, if the
punishment for a crime has varied between the time the crime was committed and
the time of sentencing following a conviction, the convicted person is entitled
to the lesser punishment.
Because section 11 of the Charter is among the sections that
can be overridden under section 33 (the notwithstanding clause), Parliament
could in theory enact ex post facto laws by invoking section 33. However, the
federal Parliament (which has the sole power to enact laws punishable for
violation by two years or more in penitentiary) has never attempted to enact an
ex post facto law (or any other law) using section 33.
It should be emphasized that the Charter prohibition applies
only to criminal law. Changes to civil law in Canada can be, and occasionally
are, enacted ex post facto. In one example, convicted murderer Colin Thatcher
was ordered to forfeit proceeds from a book he had published (after being
paroled from prison) under a Saskatchewan law. Although the law was passed long
after Thatcher's murder conviction, the courts have ruled that such laws
prescribe only civil penalties (as opposed to additional criminal penalties)
and are thus not subject to Charter restrictions.
Finland
Generally, the Finnish legal system does not permit ex post
facto laws, especially those that would expand criminal responsibility. They
are not expressly forbidden but instead the ban is derived from more general legal
principles and basic rights. In civil matters, such as taxation, ex post facto
laws may be made in some circumstances.
However, there have been three exceptional instances when ex
post facto criminal laws have been used in Finland.
Following the Finnish Civil War of 1918, the Parliament of
Finland passed a law setting up tribunals to try suspected rebels. These
tribunals issued death sentences in many cases, although very few of those
accused could have committed a crime that carried the death penalty under
Finnish law in force during the war. Several hundred people were executed under
what was arguably an ex post facto legal arrangement. During the war, and
before the tribunals were set up, thousands of people had been executed without
trial by both sides.
After World War II, Finland was under pressure to convict
political leaders whom the Allied powers considered responsible for Finnish
involvement in the war. An ex post facto law was passed in the autumn of 1945
to permit prosecution for war responsibility, and eventually eight politicians
were convicted.
In another post-war case, the weapons cache case, an ex post
facto law was passed in 1947 so that military personnel could be prosecuted for
unofficially preparing for guerrilla resistance in case of Soviet occupation.
France
In France, so-called "lois rétroactives" (retroactive laws) are technically
prohibited by Article 2 of the Code Civil, which states that: "Legislation
provides only for the future; it has no retrospective operation".[1] In
practice however, since the Code Civil does not have the status of
constitutional legislation and can therefore be overruled by subsequent laws,
the Conseil Constitutionnel
has determined that retroactive laws can be passed within certain limits – such
as in the case of financial or tax legislation –, particularly where it is
considered to be in the "general interest"; this has been
demonstrated by a series of decisions handed down by the Conseil
Constitutionnel concerning retroactive tax laws.[2]
However, in criminal law, ex post facto sanctions are
effectively forbidden as per Article 112-1 of the French Penal Code, except in
cases wherein the retroactive application benefits the accused person (called
retroactivity "in mitius").[3] They are
also considered unconstitutional, since the principle of non-retroactivity is
laid down in Article 8 of the Declaration of the Rights of Man and of the
Citizen, which has constitutional status under French law.[4] The épuration légale trials held
after the 1944 liberation of France introduced the status of indignité nationale for Nazi
collaborators as a way to avoid ex port facto law.
Germany
Article 103 of the German basic law requires that an act may
be punished only if it has already been punishable by law at the time it was
committed (specifically: by written law, Germany following civil law).
Some scholars[who?] and politicians like Robert A. Taft, at
the time U.S. Senator from Ohio, asserted that the Nuremberg Trials following
World War II were based on ex post facto law, because the Allies did not
negotiate the London Charter, defining crimes against humanity and creating the
International Military Tribunal, until well after the acts charged. Others,
including the International Military Tribunal, argued that the London Charter
merely restated and provided jurisdiction to prosecute offenses that were
already made unlawful by the Kellogg-Briand Pact, the Covenant of the League of
Nations, and the various Hague Conventions.[citation
needed]
The problem of ex post facto law was also relevant in the
1990s as there was a discussion about the trials against East German soldiers
who killed fugitives on the Inner-German border (Mauerschützen-Prozesse
- Wall-shooters'/ -guards' trials). German courts in these cases recurred to
the Radbruch formula.[5]
Hungary
In 2010, the parliament established a 98% punitive tax on
any income over two million forints received either as a retirement package or
as severance pay in the last five years in the government sector.[6]
India
In India, without using the expression "ex post facto
law", the underlying principle has been adopted in the article 20(1) of
the Indian Constitution in the following words:
No person shall be convicted of any offence except for
violation of a law in force at the time of the commission of the act charged as
an offence, nor be subjected to a penalty greater than that which have been
inflicted under the law in force at the time of commission of the offence.
Further, what article 20(1) prohibits is conviction and
sentence under an ex post facto law for acts done prior thereto, but not the
enactment or validity of such a law. There is, thus, a difference between the
Indian and the American positions on this point; whereas in the United States,
an ex post facto law is in itself invalid, it is not so in India. The courts
may also interpret a law in such a manner that any objection against it of
retrospective operation may be removed.[7]
An example for retrospective law in India is the Karnataka Schedule
Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act,
1978[8] in the state of Karnataka.
Indonesia
The Indonesian constitution prohibits trying citizens under
retroactive laws in any circumstance. This was tested in 2004 when the
conviction of one of the Bali bombers under retroactive anti-terrorist
legislation was quashed.[9]
Iran
Ex post facto laws, in all contexts, are prohibited by
Article 169 (Chapter 11) of Iran's constitution.
Ireland
The imposition of retroactive criminal sanctions is
prohibited by Article 15.5.1° of the constitution of Ireland. Retroactive
changes of the civil law have also been found to violate the constitution when
they would have resulted in the loss in a right to damages before the courts,
the Irish Supreme Court having found that such a right is a constitutionally
protected property right.
Israel
Israel enacted the 1950 "Nazi and Nazi Collaborators
(Punishment) Law" for the purpose of punishing acts that occurred during
the Second World War, when Israel did not exist as a state. The law was used to
punish Adolf Eichmann and others.
Italy
Article 25, paragraph 2, of the Italian
Constitution, establishing that "nobody can be punished but according to a
law come into force before the deed was committed", prohibits indictment
pursuant a retroactive law. Article 11 of preliminary provisions to the
Italian Civil Code and Article 3, paragraph 1, of the Statute of taxpayer's
rights, prohibit retroactive laws on principle: such provisions can be
derogated, however, by acts having force of the ordinary law; on the contrary,
non-retroactivity in criminal law is thought absolute.[10]
Japan
Article 39 of the constitution of Japan prohibits the
retroactive application of laws. Article 6 of Criminal Code of Japan further
states that if a new law comes into force after the deed was committed, the
lighter punishment must be given.
Lithuania
Lithuania has no constitutional prohibition on ex post facto
laws. Retroactive criminal sanctions are prohibited by Article 2, Part 1
(Chapter 1) of the Criminal Code of the Republic of Lithuania. Retroactive
administrative sanctions are prohibited by Article 8 of the Administrative Code
of the Republic of Lithuania.
Lithuanian lawyer Dainius Žalimas contends that there has been retroactive
application of the law on Genocide (and subsequently adopted articles of the
Criminal Code) against participants in Soviet repressions against Lithuanian guerilla fighters and their supporters, and gives examples
of such decisions. The Article 99 of the Criminal Code of the Republic of
Lithuania was introduced only in September 26, 2000 and therefore can't be used
in events of 1944-1953.
Mexico
According to the first and second paragraphs of the Article
14th of the Mexican Constitution, retroactive application of the law is
prohibited if it is on detriment of a person rights. But the new law can be
applied if it benefits the person.
Netherlands
Article 4 of the Law on General Provisions (in effect since
1838) states that "The law has no retroactive effect".[11]
Article 1 of Criminal Law states that no act is punishable
without a pre-existing law, and that in the case an act was punishable but the
law was changed after the criminal act the "most favorable"
(to the suspect) of the two laws will apply.[12]
In Civil Law there is no such provision.
New Zealand
Section 7 of the Interpretation Act 1999 stipulates that
enactments do not have retrospective effect. The New Zealand Bill of Rights Act
1990 also affirms New Zealand's commitment to the International Covenant on
Civil and Political Rights and Universal Declaration of Human Rights, with
section 26 preventing the application of retroactive penalties. This is further
reinforced under section 6(1) of the current Sentencing Act 2002 which
provides, "[p]enal enactments not to have
retrospective effect to disadvantage of offender" irrespective of any
provision to the contrary.
Section 26 of the Bill of Rights and the previous sentencing
legislation, the Criminal Justice Act 1985, caused significant digression among
judges when the New Zealand Parliament introduced legislation that had the
effect of enacting a retrospective penalty for crimes involving an element of
home invasion. Ultimately, the discrepancy was restricted with what some
labelled artificial logic in the cases of R v Pora
and R v Poumako.
Norway
Article 97 of the Norwegian constitution prohibits any law
to be given retroactive effect. The prohibition applies to both criminal and
civil laws, but in some civil cases, only particularly unreasonable effects of
retroactivity will be found unconstitutional.[13]
Pakistan
Article 12 of the constitution of Pakistan prohibits any law
to be given retroactive effect by stating:[14]
• 12.1 - No
law shall authorize the punishment of a person:-
• 12.1.a -
for an act or omission that was not punishable by law at the time of the act or
omission; or
• 12.1.b -
for an offence by a penalty greater than, or of a kind different from, the
penalty prescribed by law for that offence at the time the offence was
committed.
Philippines
The 1987 Constitution of the Philippines categorically
prohibits the passing of any ex post facto law. Article III (Bill of Rights),
Section 22 specifically states: "No ex post facto law or bill of attainder
shall be enacted."
However, the Cybercrime Prevention Act, which went into
effect on October 3, 2012, is criticized for being ex post facto.[15]
Poland
Retroactive application of law is prohibited by the Article
3 of the Polish civil code, and the legal rule prohibiting such retroactive
application is commonly memorised as a Latin sentence Lex retro non agit ("A law does not apply retroactively"). The
said article, however, allows retroactive application of an Act of Parliament
if it is expressly understood from its text or purpose.
Portugal
Article 18 of the Portuguese constitution forbids the
retroactive application of any law the restricts
right; article 29 of the Portuguese Constitution forbids retroactive
application of criminal law; article 103 forbids the application of retroactive
taxes.
Romania
Article 15 (2) of the Romanian constitution provides that
the law shall only act for the future, except for the more favourable criminal
or administrative law.
Russia
Ex post facto punishment in criminal and administrative law
is prohibited by article 54 of the constitution; ex post facto tax laws by
article 57 of the constitution.
Spain
Article 9.3 of the Spanish Constitution guarantees the
principle of non-retroactivity of punitive provisions that are not favorable to or restrictive of individual rights.
Therefore, "ex post facto" criminal laws or any other retroactive
punitive provisions are constitutionally prohibited.
As well as Statute law mentioned above, this now also
includes 'court-made law'. The Parot doctrine, in
which terrorists were denied the right (enshrined in a 1973 Statute) to earn a
reduction in the length of their sentences by a Spanish court ruling in 2006
was judged by the European Court of Human Rights to be contrary to relevant
articles on retroactivity & liberty and security in 2013.
South Africa
Section 35(3) of the South African Bill of Rights prohibits
ex post facto criminal laws, except that acts which violated international law
at the time they were committed may be prosecuted even if they were not illegal
under national law at the time. It also prohibits retroactive increases of
criminal punishments.
Sweden
In Sweden, retroactive penal sanctions and other retroactive
legal effects of criminal acts due the State are prohibited by chapter 2,
section 10 of the Instrument of Government (Regeringsformen).
Retroactive taxes or charges are not prohibited, but they can have retroactive
effect reaching back only to the time when a new tax bill was proposed by the
government. The retroactive effect of a tax or charge thus reaches from that
time until the bill is passed by the parliament.
As the Swedish Act of Succession was changed in 1979, and
the throne was inherited regardless of sex, the inheritance right was withdrawn
from all the descendants of Charles XIV John (king 1818-44) except the current
king Carl XVI Gustaf. Thereby, the heir-apparent
title was transferred from the new-born Prince Carl Philip to his older sister
Crown Princess Victoria.
The Swedish Parliament voted in 2004 to abolish inheritance
tax by January 1, 2005. However, in 2005 they retro-actively decided to move
the date to December 17, 2004. The main reason was abolishing inheritance tax
for the many Swedish victims of the 2004 Indian Ocean earthquake, which took
place on December 26.
Turkey
Ex post facto punishment is prohibited by Article 38 of the
Constitution of Turkey. It states:
• c1.
No one shall be punished for any act which does not constitute a criminal
offence under the law in force at the time committed; no one shall be given a
heavier penalty for an offence other than the penalty applicable at the time
when the offence was committed.
• c2.
The provisions of the above paragraph shall also apply to the statute of
limitations on offences and penalties and on the results of conviction.
Thus, the article does not prohibit in mitius
laws, i.e. cases wherein the retroactive application benefits the accused person.
United Kingdom
In the United Kingdom, ex post facto laws are frowned upon,
but are permitted by virtue of the doctrine of parliamentary sovereignty.
Historically, all acts of Parliament before 1793 were ex post facto
legislation, inasmuch as their date of effect was the first day of the session
in which they were passed. This situation was rectified by the Acts of
Parliament (Commencement) Act 1793.[citation needed]
Some laws are still passed retrospectively: e.g., the
Pakistan Act 1990 (by which the United Kingdom amended its legislation
consequent to the Commonwealth of Nations having re-admitted Pakistan as a
member) was one such law; despite being passed on 29 June 1990, section 2
subsection 3 states that "This Act shall be deemed to have come into force
on 1st October 1989", nine months before it was enacted.[16]
Retrospective criminal laws are prohibited by Article 7 of
the European Convention on Human Rights, to which the United Kingdom is a
signatory, but several noted legal authorities have stated their opinion that
parliamentary sovereignty takes priority even over this.[17][18]
For example, the War Crimes Act 1991 created an ex post facto jurisdiction of
British courts over war crimes committed during the Second World War. Another
important example of a case which shows the doctrine of parliamentary supremacy
in action is Burmah Oil Co Ltd v Lord Advocate, which
retrospectively changed the law on compensation resulting from scorched earth
actions in Burma during the war. More recently, the Police (Detention and Bail)
Act 2011 retroactively overrode a controversial court judgment resulting from
an error in the drafting of the Police and Criminal Evidence Act 1984 that
would potentially have invalidated thousands of criminal convictions.
Taxation law has on multiple occasions been changed to
retrospectively disallow tax avoidance schemes.[19]
The most significant example known concerns Double-taxation Treaty Arrangements
where the Finance Act 2008 with BN66 retrospectively amended 1987 legislation
creating large tax liabilities for 3,000 people where no liability existed
before.
United States
In the United States, the Congress is prohibited from
passing ex post facto laws by clause 3 of Article I, Section 9 of the United
States Constitution. The states are prohibited from passing ex post facto laws
by clause 1 of Article I, Section 10. This is one of the relatively few
restrictions that the United States Constitution made to both the power of the
federal and state governments before the Fourteenth Amendment. Over the years,
when deciding ex post facto cases, the United States Supreme Court has referred
repeatedly to its ruling in Calder v. Bull, in which Justice Samuel Chase held
that the prohibition applied only to criminal matters, not civil matters, and
established four categories of unconstitutional ex post facto laws.[20] The case dealt with the Article I, Section 10,
prohibition on ex post facto laws, because it concerned a Connecticut state
law.
Not all laws with retroactive effects have been held to be
unconstitutional. One current U.S. law that has a retroactive effect is the
Adam Walsh Child Protection and Safety Act of 2006. This law imposes new
registration requirements on convicted sex offenders and also applies to
offenders whose crimes were committed before the law was enacted.[21] The U.S.
Supreme Court ruled in Smith v. Doe (2003) that forcing sex offenders to
register their whereabouts at regular intervals, and the posting of personal
information about them on the Internet, do not violate the constitutional
prohibition against ex post facto laws, because these laws do not impose any
kind of punishment.[22][23]
In Starkey v. Oklahoma Department Of
Corrections, the Supreme Court of the State of Oklahoma found the Oklahoma Sex
Offender Registration Act, or SORA, to be punitive in nature, if not in intent.
While the law in question has been ruled as not being retroactive in nature,
the Oklahoma Department of Corrections had been applying the new legislation
retroactively, and "also find the Department's retroactive application of
the level assignment provisions of 57 O.S. Supp. 2007, 582.1 - 582.5, as
amended, violates the ex post facto clause."[24]
Controversy has also arisen with regard to sexually violent
predator (SVP) laws, which allow the indefinite commitment of a person with a
mental abnormality which predisposes them to molest children. This issue arose
in the case Kansas v. Hendricks.[25] In Hendricks, a
man with a long history of sexually molesting children was scheduled to be
released from prison shortly after the enactment of Kansas's SVP act. Rather
than being released, he was committed on the grounds that he had a mental
abnormality. Hendricks contested the law on ex post facto and double jeopardy
grounds. The Supreme Court of Kansas invalidated the Act, but the Supreme Court
of the United States reversed the decision and ruled that the law was
constitutional on the basis that the law did not impose a criminal punishment.[25]
Another example is the Domestic Violence Offender Gun Ban,
where firearms prohibitions were imposed on those convicted of misdemeanor domestic-violence offenses and on subjects of
restraining orders (which do not require criminal conviction). These
individuals can now be sentenced to up to ten years in a federal prison for
possession of a firearm, regardless of whether the weapon was legally possessed
when the law was passed.[26] The law has been legally
upheld because it is considered regulatory, not punitive; it is a status
offense.[27]
Finally, in Calder v. Bull, the court expressly stated that
a law that "mollifies" a criminal act was merely retrospective, and
was not an ex post facto law.[28] Scholars have argued that, as a historical
matter, the phrase ex post facto referred to civil as well as criminal
laws.[29]
In administrative law, federal agencies may apply their
rules retroactively if Congress has authorized them to; otherwise, retroactive
application is generally prohibited. Retroactive application of regulations is disfavored by the courts for several reasons. The courts
uphold retroactive regulation where Congress has expressly granted such
retroactive power to the agency, as they did in Bowen v. Georgetown University
Hospital.[30]
The rules as they relate to the effects of ex post facto
upon the U.S. Federal Sentencing Guidelines can be found in U.S.S.G. § 1B1.11
(2012).
See also Bouie v. City of Columbia, Rogers v. Tennessee,
Stogner v. California, Republic of Austria v. Altmann,
James Bamford and Samuels v. McCurdy.