The Principle of Non-Retroactivity of Penal Law in French and European Law

Extract

[...] The Constitutional Council has therefore considered that the provision of the Commercial Code providing for significant imbalance is in line with the Constitution. This is the opposite of the principle of legality conceived by Beccaria that we observe by this decision of the Constitutional Council. B. ECHR November 1996, Cantoni v. France The definition of the medicine given by the Public Health Code was the problem in the judgment, which did not meet the conditions of precision to be in line with the principle of criminal legality enshrined in Article paragraph 1 of the European Convention on Human Rights. [...]

[...] What will constitute a significant imbalance and what will not? This is why a claimant has lodged a complaint with the Constitutional Council and argues that the notion of significant imbalance is not specified by the law, and therefore that the provision of the Consumer Code is contrary to the principle of criminal legality. However, by this decision, the Constitutional Council will recognize that the law does not determine what the significant imbalance means, on the other hand, the judge has interpreted this provision, the judge has interpreted it, and the legality is preserved. [...]

[...] It therefore forms a unique rule of law with the law. Consequently, the European Court of Human Rights submits it to identical requirements to those it has established regarding strict laws, it is therefore indispensable that the jurisprudence meets the conditions of accessibility and predictability. This therefore led to divergent solutions since France considers that the principle of non-retroactivity of the more severe penal law will not apply to the reversal of jurisprudence since it is not a law in the formal sense of the term, while the European Court of Human Rights will apply the principle to the reversal of jurisprudence, provided that the latter is sufficiently accessible and predictable. [...]

[...] We therefore observe that in our French legal system, the law is truly a source of penal law, whereas jurisprudence does not have this force and cannot therefore be subject to the principle of non-retroactivity, which only applies to laws issued by the legislator, as conceived by Beccaria. This means, on the contrary, that jurisprudence is retroactive in application, in the same sense as an interpretative law. France therefore clearly opposes the vision of the European Court and exposes itself to condemnations from this court. Condemnations that will not be long in coming, notably in the judgment of the European Court of Human Rights of October Pessino v. France. [...]

[...] The defendant nevertheless proceeded with the work and was prosecuted for the offense of executing work without a building permit. According to the applicable case law of the Criminal Chamber at the time, the offense of building without a permit was not constituted in the case of a violation of a stay of execution of a permit, since in this case the first permit had indeed been granted. However, the Criminal Chamber had considered the opposite, considering that the offense was indeed constituted inasmuch as it had violated the stay of execution of the building permit. [...]