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{{Short description|Law with retroactive effect}}
{{DISPLAYTITLE:''Ex post facto'' law}}▼
{{Redirect-distinguish-for|Ex Post Facto|XPostFacto|the ''Star Trek'' episode|Ex Post Facto (Star Trek: Voyager){{!}}Ex Post Facto (''Star Trek: Voyager'')}}
{{More citations needed|date=January 2021}}
An '''''ex post facto'' law'''
▲{{DISPLAYTITLE:''Ex post facto'' law}}
▲An '''''ex post facto'' law''' (from {{Lang-la|ex post facto|lit=After the fact}}) is a [[law]] that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In [[criminal law]], it may [[Criminalization|criminalize]] actions that were legal when committed; it may aggravate a [[crime]] by bringing it into a more severe category than it was in when it was committed; it may change the [[punishment]] prescribed for a crime, as by adding new penalties or extending sentences; or it may alter the [[rules of evidence]] in order to make conviction for a crime likelier than it would have been when the deed was committed.
Conversely, a form of ''ex post facto'' law commonly called an [[amnesty law]] may decriminalize certain acts. (Alternatively, rather than redefining the relevant acts as non-criminal, it may simply prohibit prosecution; or it may enact that there is to be no punishment, but leave the underlying conviction technically unaltered.) A [[pardon]] has a similar effect, in a specific case instead of a class of cases (though a pardon more often leaves the conviction itself – the finding of guilt – unaltered, and occasionally pardons are refused for this reason). Other legal changes may alleviate possible punishments (for example by replacing the death sentence with lifelong imprisonment) retroactively. Such legal changes are also known by the Latin term '''''in mitius'''''.{{citation needed|date=January 2021}}
Some [[common law|common-law]] [[jurisdiction]]s do not permit retroactive criminal legislation, though new [[precedent]] generally applies to events that occurred before the judicial decision. ''Ex post facto'' laws are expressly forbidden by the [[United States Constitution]] in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws). In some nations that follow the [[Westminster system]] of government
''Ex post facto'' criminalization is
==''Ex post facto'' laws by country==
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Retrospective 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|Fraser government]] (see [[Bottom of the harbour tax avoidance]]). Similarly, legislation [[criminalization|criminalising]] certain war crimes retrospectively has been held to be constitutional (see ''[[Polyukhovich v Commonwealth]]'').
Australia participated in drafting the [[Universal Declaration of Human Rights]] and was an original signatory in 1948.<ref>{{cite web|title=Australia and the Universal Declaration on Human Rights|url=https://humanrights.gov.au/our-work/publications/australia-and-universal-declaration-human-rights|url-status=live|archive-url=https://web.archive.org/web/20201112022053/https://humanrights.gov.au/our-work/publications/australia-and-universal-declaration-human-rights|archive-date=12 November 2020|access-date=18 November 2020|website=[[Australian Human Rights Commission]]|language=en|quote=Australia was also one of eight nations involved in drafting the Universal Declaration.}}</ref><ref>{{cite web|title=Our commitment to human rights|url=https://www.dfat.gov.au/international-relations/themes/human-rights/Pages/human-rights|url-status=live|archive-url=https://web.archive.org/web/20201119005656/https://www.dfat.gov.au/international-relations/themes/human-rights/Pages/human-rights|archive-date=19 November 2020|access-date=19 November 2020|website=[[Department of Foreign Affairs and Trade|Australian Government Department of Foreign Affairs and Trade]]|language=en|quote=Australia's commitment to human rights is enduring: we were an original signatory to the Universal Declaration of Human Rights in 1948.}}</ref> The Declaration includes a prohibition on retrospectively holding anyone guilty of a [[Crime|penal offence]] that was not an offence at the time it was committed.<ref>{{cite web|title=Universal Declaration of Human Rights at 70: 30 Articles on 30 Articles - Article 11|url=https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23903|url-status=live|archive-url=https://archive.today/20201119004524/https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23903|archive-date=19 November 2020|access-date=18 November 2020|website=[[Office of the United Nations High Commissioner for Human Rights]]|language=en-US|quote=The second paragraph of Article 11 is a ban on retroactive laws...Paragraph 2 says: "No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed."}}</ref> The [[Australian Human Rights Commission]] states the Declaration is an "expression of the fundamental values which are shared by all members of the international community" but "does not directly create legal obligations for countries."<ref>{{cite web|title=What is the Universal Declaration of Human Rights?|url=https://humanrights.gov.au/our-work/what-universal-declaration-human-rights|url-status=live|archive-url=https://web.archive.org/web/20201119013424/https://humanrights.gov.au/our-work/what-universal-declaration-human-rights|archive-date=19 November 2020|access-date=19 November 2020|website=[[Australian Human Rights Commission]]|language=en|quote=The Universal Declaration is not a treaty, so it does not directly create legal obligations for countries...it is an expression of the fundamental values which are shared by all members of the international community.}}</ref>
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===Brazil===
According to the 5th Article, section XXXVI<ref name=casa>[http://www.planalto.gov.br/ccivil_03/Constituicao/Constituicao.htm#art5xxxvi
The same article in section XL<ref
===Canada===
In [[Canada]], ''ex post facto'' criminal laws are constitutionally prohibited by [[Section 11 of the Canadian Charter of Rights and Freedoms|
The Canada [[sex offender registry]], which went into effect on December 15, 2004, is somewhat retroactive. When the registry was created, all offenders who were on the [[Ontario]] sex offender registry, which was created in 2001, were required to register on the national registry. In addition, sex offenders in all provinces who were serving a sentence (whether imprisoned or on probation or parole) on December 15, 2004, were required to register, regardless of when their offense and conviction occurred. However, the registry was not retroactive to anybody who had completed their sentence by late 2004 and was not on the Ontario registry.<ref name="macleans.ca">{{cite web |url=https://www.macleans.ca/news/canada/a-national-embarrassment/ |title=There's a problem with Canada's sex offender registry - Macleans.ca |website=macleans.ca}}</ref> Canadian courts have never ruled on the somewhat retroactive nature of the sex offender registry, since this seems to have never been challenged.
Sex offender registration was not mandatory for sex offenders until 2011, and had to be ordered by a judge.<ref>{{cite web|url=https://doubleaspect.blog/tag/sex-offender-registration/|title=sex offender registration|first=Leonid|last=Sirota|website=Double Aspect|date=30 October 2016 }}</ref><ref name="macleans.ca"/><ref>{{cite web|url=http://www.parl.ca/DocumentViewer/en/40-3/bill/S-2/royal-assent/page-ToC|title=Government Bill (Senate) S-2 (40-3) - Royal Assent - Protecting Victims From Sex Offenders Act - Parliament of Canada|website=parl.ca}}</ref> Sex offender registration was seemingly mandatory for people convicted before December 15, 2004, who were serving a sentence on that date, but was only optional for sex offenders convicted between December 15, 2004, and January 1, 2011.
Because section 11 of the Charter is among the sections that can be overridden under [[Section 33 of the Canadian Charter of Rights and Freedoms|section 33]] (the notwithstanding clause), Parliament could in theory enact ''ex post facto'' laws by invoking section 33. However, the federal Parliament, which has exclusive jurisdiction over criminal law, has never attempted to enact an ''ex post facto'' law (or any other law) using section 33.
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{{main|Danish collaborator trials}}
Following the [[liberation of Denmark]] from [[Denmark in World War II|Nazi occupation]] in 1945, the [[Folketing]], heavily influenced by the [[Frihedsrådet|Frihedsråd]], passed a [[special law]] (Lov Nr. 259 af 1. Juni 1945 om Tillæg til Borgerlig Straffelov angaaende Forræderi og anden landsskadelig Virksomhed, colloquially ''landsforræderloven'' (the traitor law) or ''strafferetstillægget'' (the penal code addendum)), temporarily reintroducing the [[death penalty]] (previously abolished in 1930) for acts of treason committed during German occupation. Passed on 1 June 1945, the law applied to actions performed subsequent to 9 April 1940, unless those actions were done under orders from the government prior to 29 August 1943. With this authorization, 103 death sentences were issued, of which 46 were carried out.<ref>{{cite web|url=https://danmarkshistorien.dk/leksikon-og-kilder/vis/materiale/retsopgoerets-love-straffelovstillaegget-1945-til-1946/|title=Retsopgørets love - straffelovstillægget 1945 til 1946|access-date=16 August 2021|date=25 August 2011}}</ref>
===Estonia===
Estonian constitution is declaring that no one shall be convicted of an act which did not constitute a criminal offense under the law in force at the time the act was committed. And that no one shall be sentenced to a heavier penalty than the one that was applicable at the time the offense was committed.{{cn|date=February 2024}}
===Finland===
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===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".<ref>{{cite web|url=http://www.legifrance.gouv.fr/content/download/1950/13681/version/3/file/Code_22.pdf|title=Link to Civil Code}}</ref> In practice, however, since the Code Civil does not have the status of constitutional legislation and can therefore be overruled by subsequent laws, the {{lang|fr|[[Conseil Constitutionnel]]|italic=no}} 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.<ref>{{cite web |url=http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/a-la-une/janvier-2013-la-retroactivite-fiscale-dans-la-jurisprudence-du-conseil-constitutionnel.135573.html |title=Janvier 2013: La rétroactivité fiscale dans la jurisprudence du Conseil constitutionnel |language=fr |date=January 2013}}</ref>
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'').<ref name = Soyer>{{cite book |last=Soyer |first=Jean-Claude |title=Droit pénal et procédure pénale |publisher=L.G.D.G. |series=Lextenso Editions |edition=21 |date=2012 |location=Paris |pages=75–78 |language=fr}}</ref> 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.<ref name="Terré">{{cite book |last=Terré |first=François |title=Introduction générale au droit |publisher=Dalloz |series=Précis |edition=8 |date=2001 |location=Paris |pages=204–5 |language=fr}}</ref> The ''[[épuration légale]]'' trials held after the 1944 [[liberation of France]] introduced the status of ''[[indignité nationale]]'' for [[Collaboration with Nazi Germany and Fascist Italy|Nazi collaborators]] as a way to avoid ''ex post facto'' law.
===Germany===
Article 103 of the [[Basic Law for the Federal Republic of Germany|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).
[[Robert A. Taft]], at the time a 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 [[
[[William O. Douglas]] complained that the Allies were guilty of "substituting power for principle" at Nuremberg Trials because the actions of the defendants were lawful in the 1930s Germany. He contended that the Nuremberg Trials were implementing laws after the fact (that is, ex post facto) "to suit the clamor of the time." American Chief Justice [[Harlan Stone]], likewise, called the Nuremberg Trials a "fraud" because of the ex post facto laws.<ref>{{cite web |last1=Linder |first1=Douglas |title=The Nuremberg Trials: An Account |url=https://famous-trials.com/nuremberg/1901-home |website=Famous Trials}}</ref>
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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.<ref>{{cite web|url=http://www.legalserviceindia.com/article/l60-Protection-against-ex-post-facto-laws.html|title=Protection against ex-post-facto laws|website=legalserviceindia.com}}</ref>
An example for retrospective law in India is the [[Karnataka
===Indonesia===
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===Ireland===
During the [[Irish Civil War]], [[Irish Republican Army (1922–1969)|Anti-Treaty IRA]] members [[Rory O'Connor (Irish republican)|Rory O'Connor]], [[Liam Mellows]], [[Richard Barrett (Irish republican)|Richard “Dick” Barrett]] and [[Joseph McKelvey]] were executed ex post facto and without trial, just 2 days into the existence of the [[Irish Free State]]. Despite being imprisoned for over four months, following their deaths the [[3rd Dáil|Third Dáil]] retrospectively approved their executions for a crime that had only been legislated against. Largely, the executions were considered retribution for the assassination of the legislator, Deputy [[Seán Hales]] TD the previous day.
The imposition of retroactive criminal sanctions is prohibited by Article 15.5.1° of the [[Constitution of Ireland|Irish Constitution]]. 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 [[Supreme Court (Ireland)|Irish Supreme Court]] having found that such a right is a constitutionally protected property right.▼
▲The imposition of retroactive criminal sanctions is prohibited
===Israel===
[[Israel]] enacted the 1950 [[Nazis and Nazi Collaborators (Punishment) Law]] for the purpose of punishing acts that occurred during the [[Second World War]] and the [[The Holocaust|Holocaust]], when Israel did not exist as a state. The law was used to punish [[Adolf Eichmann]] and others.{{citation needed|date=November 2020}}
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Lithuania has no constitutional prohibition on ''ex post facto'' laws. However, as a signatory of the [[European Convention on Human Rights]] and as a member of the European Union whose [[Charter of Fundamental Rights of the European Union|Charter of Fundamental Rights]] has the effect of law, any retroactive law could still be struck down. 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
===Mexico===
According to the first and second paragraphs of the 14th Article of the [[Constitution of Mexico|Mexican Constitution]], retroactive application of the law is prohibited if it is detrimental to a
===Netherlands===
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The 1987 [[Constitution of the Philippines]] categorically prohibits the passing of any ''ex post facto'' law. Article III ([[Bill of rights|Bill of Rights]]), Section 22 specifically states: "No ''ex post facto'' law or [[bill of attainder]] shall be enacted."
However, the [[Cybercrime Prevention Act of 2012|Cybercrime Prevention Act]], which went into effect on October 3, 2012, is criticized for being ''ex post facto''.
===Poland===
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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 '[[Precedent|court-made law]]'. The [[Parot doctrine (Spain)|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 [[European Convention on Human Rights#Article 7 – retroactivity|retroactivity]] & [[
===South Africa===
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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 [[Constitution of Sweden#Instrument of Government|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
The [[Riksdag|Swedish Riksdag]] 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.{{citation needed|date=March 2019}}
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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.<ref name=NA_PA1990 >{{cite web |url=http://www.legislation.gov.uk/ukpga/1990/14/section/2 |title=Pakistan Act 1990 |publisher=Government of the United Kingdom |access-date=17 September 2010}}</ref>
Retrospective ''criminal'' laws are prohibited by Article 7 of the [[European Convention on Human Rights]], to which the United Kingdom is a signatory, but
Another example of an ''ex post facto'' criminal law in the UK is the [[Criminal Justice Act 2003]]. This law allows people acquitted of murder and certain other serious offences to be retried if there is "new, compelling, reliable and substantial evidence" that the acquitted person really was guilty. This Act applies retroactively and can be used to re-prosecute people who were acquitted before it came into force in 2005, or even before it was passed in 2003. As a result, two of the defendants who were acquitted in the [[murder of Stephen Lawrence]] were allowed to be retried, even though this murder occurred in 1993 and the defendants had been acquitted in 1996. Many people have criticized the Criminal Justice Act because of its essential abolition of prohibition against both ex post facto and [[double jeopardy]] laws.<ref>{{cite web|url=https://www.telegraph.co.uk/news/uknews/crime/8982608/Stephen-Lawrence-murder-change-in-double-jeopardy-law-allowed-Gary-Dobson-prosecution.html |archive-url=https://ghostarchive.org/archive/20220112/https://www.telegraph.co.uk/news/uknews/crime/8982608/Stephen-Lawrence-murder-change-in-double-jeopardy-law-allowed-Gary-Dobson-prosecution.html |archive-date=2022-01-12 |url-access=subscription |url-status=live|title=Stephen Lawrence murder: change in double jeopardy law allowed Gary Dobson prosecution|first=Tom|last=Whitehead|date=3 January 2012|work=[[The Daily Telegraph]]}}{{cbignore}}</ref>
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[[Thomas Jefferson]], one of the [[Founding Fathers of the United States]], stated in 1813 that:
{{blockquote|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]] | [[wikiquote:Thomas Jefferson#Letter to Isaac McPherson (1813)|Letter to Isaac McPherson]], August 13, 1813 }}
[[United States Congress|Congress]] is prohibited from passing ''ex post facto'' laws by clause 3 of [[Article One of the United States Constitution|Article I]], [[
As a result of ''Calder v. Bull'', several retroactive taxes have been passed by the US Congress, starting with the 1913 Revenue Act, which imposed the first income tax. By 1935, prohibitions on retroactive taxation had been declared "dead." In 1938, the US Supreme Court claimed the standard on retroactive taxation was “retroactive application is so harsh and oppressive as to transgress the constitutional limitation.” In practice, this has resulted in virtually all retroactive taxes being upheld, and in one case a 1993 revision of tax law that applied retroactively to 1984 was upheld.<ref>{{cite web | url=https://www.heritage.org/taxes/report/retroactive-tax-increases-and-the-constitution | title=Retroactive Tax Increases and the Constitution }}</ref><ref>{{cite web | url=https://www.jdsupra.com/legalnews/retroactive-tax-laws-but-they-can-t-do-3996868/ | title=Retroactive Tax Laws – but They Can't do That, Can They? }}</ref>
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.<ref>{{cite web|url=https://www.congress.gov/bill/109th-congress/house-bill/4472/text|title=Text - H.R.4472 - 109th Congress (2005-2006): Adam Walsh Child Protection and Safety Act of 2006|date=July 27, 2006|website=congress.gov}}</ref> The U.S. Supreme Court ruled in ''[[Smith v. Doe]]'' (2003) that
In ''Starkey v. Oklahoma Department of Corrections'', the [[Oklahoma Supreme Court|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 had been ruled as not being retroactive in nature, the Oklahoma Department of Corrections had been applying the new legislation retroactively. The court found that "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."<ref>''[https://law.justia.com/cases/oklahoma/supreme-court/2013/109556.html Starkey v. Oklahoma Department Of Corrections]'', 2013 OK 43 (2013); [http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=470336 OSCN Document]</ref>
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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 Bureau of Prisons|federal prison]] for possession of a firearm, regardless of whether the weapon was legally possessed when the law was passed.<ref>{{Uscsub|18|922|g|8}}, {{Uscsub2|18|922|g|9}}, and {{Uscsub2|18|924}}.</ref> The law has been legally upheld because it is considered regulatory, not punitive; it is a [[status offense]].<ref>''[[United States v. Emerson]]'', 270 F.3d 203 (5th Cir. 2001).</ref>
Another example is the [[Copyright Term Extension Act]] which was retroactive since it affected both new works and existing ones, but it was upheld by decision [[Eldred v. Ashcroft]]. Also the [[Uruguay Round Agreement Act]] which restored copyright in foreign works, removing them from the [[public domain]] was also upheld by another decision, [[Golan v. Holder]]
The US military also recognizes ex post facto law. [[Common law]] states that Courts-martial will not enforce an ex post facto law, including increasing amount of pay to be forfeited for specific crimes. (See [https://www.ucmjdefense.com/resources/army-jag-school-criminal-law-deskbook-volume/military-justice-system-overview/6214-2.html United States v. Gorki 47 M.J. 370]).
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# Legislative documents of People's Councils, People's Committees at all levels, local governments in special administrative-economic units are not retroactive.
There has been no case that new law stated it has a retroactive effect. But the second item of this Article has been widely used in court system (''in mitus'' laws'')''.
==Treatment by international organizations and treaties==
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[[Category:Constitutional law]]
[[Category:Criminal procedure]]
[[Category:Latin legal terminology]]
[[it:Ex post]]
[[ja:法の不遡及]]
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