Journal of Constitutional Law (Dec 2022)
PROBLEM OF NON-RETROACTIVITY IN SUBSTANTIVE ROBLEM OF NON-RETROACTIVITY IN SUBSTANTIVE CRIMINAL LAW RIMINAL LAW (ANALYSIS OF THE COURT PRACTICE) ANALYSIS OF THE COURT PRACTICE)
Abstract
Criminal law protects, on the one hand, individual and general good from criminal infringement, and on the other hand, the rights and freedoms of accused and convicted persons, through the retroactivity of criminal law, the analogy of law, the prohibition of double punishment, and other guarantee conditions, that act in their favour. All of the above are considered to be the demonstration of general legal principles (principles of justice, legality, and humanity) in legal science. The principle of legality, together with the principles of justice and humanity, is an essential element of the principle of legal state and is directly related to substantive criminal law. According to national or international provisions, if an act is not considered an offence at the time of its commission either under national or international law, criminal liability shall not be imposed on a person. Therefore, according to that provision, the national legislator may not adopt provisions that retroactively impose or toughen liability. In addition to the legislator, judges shall not have the right either, when imposing liability, to retroactively apply a legal provision if it worsens a person’s condition. Checking whether a certain act violates national or international law or not, is the objective and subject of discussion by domestic judicial authorities. This article analyses whether that important principle of legality is properly exercised in the judgments made by domestic courts. This paper focuses on the problem of the application of the retroactivity of law in terms of both, a limitation period and a conditional sentence, and the issue of liability of a person if the conditional sentence is changed or mitigated. This article also analyses practical examples of the application of the principle of non-retroactivity in relation to blanket provisions. All the above-mentioned problems are analysed based on the judgments delivered by the Constitutional Court of Georgia, after which the author provides the interpretation of Article 3 of the Criminal Code of Georgia in accordance with the Constitution of Georgia.
