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Monday, April 25, 2011

Non-retroactivity principle

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Another important limiting principles is non-retroactivity of punitive provisions are not favorable or restrictive of individual rights, which is also reflected in Article 9.3 of the Constitution. Notably, not criminal law itself, but affects the entire disciplinary proceeding, this is also the administrative.

This principle means that they can punish conduct based on standards that have been issued and entered into force after the commission of that act: if the penalty is intended to guide the conduct of the public to not commit certain acts, it would logical to punish conduct which, when committed, were not banned. In this sense, it is a realization of the principle of legal security, cannot accommodate a standard behavior does not exist.

Conversely, the principle allows retroactivity of punitive provisions favorable, although they are serving. This is what happened with the recent entry into force of the LO 5 / 2010: the recess of some penalties has meant that prisoners serving sentence for a crime whose punishment has been modified to obtain before (or immediately, whichever have completed the sentence) the ultimate freedom. However, if the amendment provides more severe penalties, the penalty shall not be affected.

On the practical side, it has to take into account not the time of sentencing, but the material time. If between the commission of criminal offense and the trial (and subsequent sentence) there has been any change in the law that impinges on penalties coupled with the offense, the penalty will only be altered if it is beneficial to the defendant. It is extracted to be judged on the authors with the Criminal Code in force at the time of committing the crime.

One question in this respect is: If serving a sentence and subsequently be, there is a "rebate" of the sanction involves, do you have the right to compensation? The answer is NO. Taking into account the reason for this principle, at the time of committing the fact the author knew what sentence was accompanied, which is then amend does not entitle you to be compensated.

Finally, commenting that the principle in its positive side refers to "penalty provisions", ie rules. Therefore, should not apply retroactively an article that is favorable if all of them are not.

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