Term and fundamental meaning of nullum crimen (nulla poena) sine lege
The Latin legal principle nullum crimen, nulla poena sine lege – translated as “no crime, no punishment without law” – is at the core of modern criminal law. The principle states that criminal liability may only exist for acts that were already designated as criminal offenses by law and subject to punishment prior to their commission. Retroactive punishment or sanctioning based on the analogous application of criminal law provisions is excluded. This principle protects individuals from arbitrary state interference in their freedoms and guarantees foreseeability and legal certainty in criminal law.
Historical development
Antiquity and Middle Ages
Even in Roman antiquity, there was a basic idea of the principle of legality, though it was not expressly codified. In the Middle Ages, a codified, generally applicable legal basis for punishments was often lacking, and criminal power could be exercised arbitrarily.
Enlightenment and codification
With the Enlightenment came a conscious engagement with the principle. The Italian criminal law reformer Cesare Beccaria demanded at the end of the 18th century that the state’s power to punish should be bound to pre-existing laws. Subsequently, the principle was enshrined in major legislative works, such as the French Code pénal (1810) and later the German Criminal Code (StGB).
Modern constitutional states
Today, the principle is firmly embedded in many national constitutions and international treaties. For example, the core content of nullum crimen, nulla poena sine lege is found as an absolute principle in Article 103 (2) of the German Basic Law (GG) as well as in Article 7 of the European Convention on Human Rights (ECHR).
Four basic elements of the principle of legality (“fourfold canon”)
The principle of criminal law comprises four individual aspects, referred to as the “fourfold canon”:
1. nulla poena sine lege scripta
No punishment without written law. Punishments may only be imposed on the basis of written, formally enacted laws. Customary law and unwritten criminal threats are excluded.
2. nulla poena sine lege praevia
No punishment without a pre-existing law. Criminal provisions may not apply retroactively (prohibition of retroactivity). Only acts that were punishable by law at the time of commission can be penalized.
3. nulla poena sine lege certa
No punishment without a specific law. The criminal law must be clear and definite so that the facts and sanctions leading to criminal liability are predictable and understandable. Vague or ambiguous laws contradict this principle of certainty.
4. nulla poena sine lege stricta
No punishment without strict law. Analogy to the detriment of the accused is prohibited in criminal law. The extension of criminal provisions to similar, not expressly regulated facts is forbidden.
Function and significance in the rule of law
Protective function
The principle protects individuals from state arbitrariness, safeguards personal freedom, and guarantees legal certainty. No one can be punished for an act whose punishability was not previously determined and known.
Rule-of-law binding
The legality principle compels the legislature to formulate criminal laws precisely and comprehensibly. At the same time, it limits the principle of separation of powers by setting a boundary for judicial development of the law in criminal matters at law-abidance.
Relationship to the separation of powers
The legislature is responsible for creating criminal offenses and threats of punishment. The judiciary may refer to these laws only in their literal application, not by introducing its own ‘creation of criminal offenses’.
Forms and legal concretizations
Constitutional framework in Germany
Article 103 (2) GG states:
“An act may be punished only if its punishability was determined by law before the act was committed.”
This provision has immediate effect for legislation, adjudication, and administration. Violations lead to a prohibition of prosecution or to the overturning of corresponding judgments.
Integration into international law
Article 7 (1) ECHR as well as Article 15 of the International Covenant on Civil and Political Rights (ICCPR) guarantee the legality principle at the international law level. The Rome Statute of the International Criminal Court (ICC Statute) also expressly provides for the prohibition of retroactivity and adherence to laws.
Exceptions and special issues
Retroactive criminal liability
An exception is provided for in international criminal law: crimes against humanity or war crimes, which at the time of their commission were already prohibited and punishable according to the general principles of law recognized by civilized nations, may in certain cases be prosecuted despite lacking codification (so-called ‘naturalistic retroactivity’). In Germany, however, this is only permitted under very strict conditions.
Prohibition of analogy in criminal law and exceptions
The prohibition of analogy applies strictly. However, an analogous application in favor of the defendant is possible (lex mitior). This applies to situations in which a newer, more lenient law is also applied retroactively to earlier acts.
Administrative and regulatory offenses law
The legality principle is a fundamental structural feature of criminal law, but it may also be appropriately applied to regulatory offenses. The relevant laws, such as the OWiG, are generally modeled after the StGB.
Distinction from other legal principles
Principle of culpability
The principle of culpability (‘nulla poena sine culpa’ – no punishment without guilt) forms a separate, equally fundamental pillar of criminal law, but complements and deepens the legality principle through the requirement of individual culpability.
Principle of opportunity
In contrast to the legality principle, which obliges law enforcement authorities to take action, the principle of opportunity, for example in regulatory offenses law, allows for discretion with regard to the prosecution of certain violations. These different principles fall within different spheres of application.
Significance for practice
Legislation and interpretation of crime elements
Legislators are required to formulate criminal offenses clearly, definitively, and proportionately. The interpretation of criminal provisions by courts must not contradict legal requirements; a conviction based on unclear statutory regulations would be unconstitutional.
Impact on criminal proceedings
The principle affects all stages of criminal proceedings, from indictment to judgment. Courts are obliged to check, already at the indictment stage, whether the conduct was prohibited by law and subject to punishment at the time of the offense. In cases of doubt, the principle operates in favor of the defendant.
Literature, case law, and web links
Selected literature
- Fischer, Thomas: Strafgesetzbuch mit Nebengesetzen, current commentary.
- Roxin, Claus: Strafrecht. General Part.
- Lackner/Kühl: Strafgesetzbuch, commentary.
Key case law
- Federal Constitutional Court (BVerfG), decision of 19 June 1973, Case No. 2 BvR 280/73 (principle of certainty and prohibition of retroactivity).
- European Court of Human Rights (ECtHR), judgment “S.W. v. United Kingdom” (1995).
Relevant provisions
- Art. 103 (2) GG
- § 1 StGB
- Art. 7 ECHR
Conclusion
The legal principle nullum crimen, nulla poena sine lege is a cornerstone of the rule-of-law criminal justice system. It ensures that criminal liability and punishment are applied only on the basis of clear legal provisions, effectively protects individuals from arbitrary prosecution, and guarantees legal certainty and predictability. In modern legal systems, the principle carries supreme binding force, both nationally and internationally.
Frequently asked questions
What is the significance of the principle “nullum crimen (nulla poena) sine lege” in the legal context?
The principle “nullum crimen, nulla poena sine lege” (in English: no crime, no punishment without law) is a fundamental principle of criminal law and ensures that an act can only be punished if, at the time it was committed, it was punishable by law. This principle protects individuals from arbitrary prosecution and retroactive criminalization (prohibition of retroactivity). Legal foundations and legal clarity are at the center: Citizens must be able to know in advance which conduct is criminal and what sanctions may arise. This principle therefore not only serves legal certainty and clarity, but is also an essential component of the rule of law principle.
What forms does the principle take in the German legal system?
In German law, the principle is explicitly enshrined in Article 103 (2) of the Basic Law (GG): “An act may be punished only if its punishability was determined by law before the act was committed.” Moreover, this provision is found in the Criminal Code (StGB), particularly in § 1 StGB. Distinctions are also made between different forms, such as the principle of certainty (lex certa), the prohibition of customary law (lex scripta), and the prohibition of retroactivity (lex praevia). The legislator is obliged to draft criminal offenses so clearly that citizens can orient themselves by the law, and may not impose criminal laws retroactively or extend them by means of customary law.
Are exceptions to the prohibition of retroactivity permissible?
According to prevailing opinion, exceptions to the prohibition of retroactivity in criminal law are generally not permissible, as this would contradict the principle of protection and legitimate expectation. However, internationally, for example in connection with the gravest human rights violations (such as war crimes or crimes against humanity), there are certain exceptions: In such cases, acts may also be criminalized that were not explicitly punishable under national law at the time, as long as they were considered criminal according to the general law of nations at that time (cf. Art. 7 (2) ECHR, Art. 15 (2) ICCPR). In German law, however, the principle still applies without exception to national criminal legislation.
What are the consequences of violations of the principle?
Violations of the principle “nullum crimen, nulla poena sine lege” mean that criminal proceedings may not be carried out and any imposed sentence must be overturned. The criminal court must check whether, at the time of commission, the act constituted a criminal offense determined by law. If this is not the case, or if a law is too vague, a conviction is precluded. In such cases, the decision can be challenged by constitutional complaint before the Federal Constitutional Court to establish a violation of the fundamental right under Article 103 (2) GG.
How is the principle of certainty implemented in practice?
The legislature is obliged to formulate criminal offenses precisely and comprehensibly so that citizens can recognize what conduct is punishable. A provision that is too broad or vague violates the principle of certainty and may be unconstitutional in case of doubt. The judiciary therefore requires a restrictive (narrow) interpretation, and analogical interpretation of criminal provisions to the detriment of the accused is expressly prohibited (§ 1 StGB). If the criminal provision is too open, courts can declare the law unconstitutional.
What role does customary law play in connection with this principle?
In criminal law, customary law is generally excluded (lex scripta). This means that criminal prohibitions and sanctions may only be enshrined in written statutes (adopted by parliament). Criminal liability based solely on unwritten legal principles or developed through long-standing jurisprudence is excluded. This is intended to prevent unclear or arbitrary prosecution, since only the parliament is authorized to determine punishments.
Are there international agreements securing “nullum crimen (nulla poena) sine lege”?
Yes, the principle is internationally recognized, particularly in human rights conventions such as the European Convention on Human Rights (ECHR, Art. 7) and the International Covenant on Civil and Political Rights (Art. 15 ICCPR). Both treaties prohibit retroactive criminal laws and oblige member states to the principle of certainty and the legal basis for any prosecution. The principle is also firmly enshrined in many other international agreements and in the case law of international courts, and serves as a benchmark for rule-of-law criminal prosecution worldwide.
