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Article 7 European Convention on Human Rights - No Punishment without law

 
Article 7 
 
"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."
 
 
The right set out in Art 7 is one of the fundamental elements of the rule of law. No derogation from it is permitted under Art 15. It should be interpreted and applied to provide effective safeguards from arbitrary prosecution, conviction and punishment.
 
 
SW v UK [1995] ECHR 52
 
C R v UK [1995] ECHR 51
 
 
The criminal law should not be interpreted to the disadvantage of the accused:
 
 
Kokkinakis v Greece [1993] ECHR 20
 
 
Art 7 prevents the imposition of a criminal sanction unless a finding of criminal liability has been established:
 
 
G.I.E.M. S.R.L v Italy [2018] ECHR 
 
 
 
To determine what constitutes a criminal offence for the purposes of Art 7,  the 3 criteria set out in Engel v Netherlands to determine criminal charge for Art 6 should be applied:
 
 
1. Classification in domestic law
 
2. The very nature of the offence
 
3. The severity of the penalty
 
 
 
 
Penalty has been held to include:
 
Confiscation orders - Welch v UK [1996] ECHR 12
 
Imprisonment for default of fine  Jamil v France [1995] ECHR 17 
 
An administrative fine Valico v Italy [2012] ECHR 1167
 
Confiscation of land Varvara v Italy [2013] ECHR 1048
 
Permanent ban from occupation ordered by a court as a secondary punishment Gouarre Patte v Andorr [2016] ECHR 50
 
Expulsion and 10 year residency ban in replacement for imprisonment Gurguchiani v Spain [2009] ECHR 2063
 
 
 
The following have been held to not amount to a penalty:
 
Administrative expulsion and residency ban Vikulov v Latvia [2012] ECHR 1748
 
Compulsory hospitalisation on a person lacking criminal capacity: Berland v France [2015] ECHR 760
 
Police surveillance or house arrest of a dangerous person as preventative action Raimondo v Italy [1994] ECHR 3
 
Surveillance and restrictions on a person on release from sentence as preventative action Timofeye v Russia [2021] ECHR 43
 
Prohibition of residence: Maaouia v France [2000] ECHR 455
 
DNA profiling of convicts: Van der Velden v The Netherlands [2012] ECHR 1671
 
Inclusion on a police or judicial register for violent or sex offenders: Adamson v UK [1999] ECHR 192
 
Suspension of pension rights of a civil servant following a disciplinary hearing Haioun v France [2004] ECHR 
 
Disciplinary suspension of partaking in professional sport Platini v Switzerland [2020] ECHR 232
 
 
 
 
The rules on retroactivity only apply to provisions relating to defining offences and penalties they do not apply to procedures:
 
 
Scoppola v Italy (No 2) [2009] ECHR 1297
 
 
There is  a distinction between measures amounting to a penalty and measures taken for enforcement:
 
 
 
Kafkaris v Cyprus [2008] ECHR 143
 
 
 
 
Provisions should be sufficiently clear:
 
 
Liivik v Estonia [2009] ECHR 989
 
 
Cantoni v France [1996] ECHR 52
 
 
Art 7 does not prevent the gradual judicial clarification of the law through interpretation:
 
 
SW v UK [1995] ECHR 52
 
 
Kononov v Latvia [2008] ECHR 695
 
 
The court will consider whether the interpretation was in line with the legislation or whether it was unreasonable:
 
 
Jorgic v Germany [2007] ECHR 583
 
 
The court must consider if the defendant could reasonably have foreseen the risk of being charged or convicted with an offence
 
 
Jorgic v Germany [2007] ECHR 583
 
 
The court will consider if the interpretation followed a perceptible line of case law or whether the court adopted a new approach:
 
 
SW v UK [1995] ECHR 52
 
 
Del Rio Prada v Spain [2013] ECHR 1004
 
 
The fact that a jury is responsible for applying the criminal law does not prevent the risk of conviction being foreseen:
 
 
Jobe v UK [2011] ECHR 1030
 
 
The scope of discretion left to jury must have sufficient clarity to give protection from arbitrary enforcement:
 
 
O Carroll v UK [2005] ECHR 
 
 
 

Article 7 European Convention on Human Rights - No Punishment without law