Criminal Law I
Class I and II
Cje
SCOPE OF APPLICATION OF CRIMINAL LAW
(Binding force of criminal law with regard to time and
place. Universal jurisdiction principle)
Karolina Kremens, LL.M., Ph.D.
Wojciech Jasiński, Ph.D.
Department of Criminal Procedure
Faculty of Law, Administration and Economics
University of Wrocław
Class I and II
SCOPE OF THE APPLICATION OF CRIMINAL LAW
SCOPE
1. General issues – terminology, definitions
2. Applicability of criminal law with respect to time
3. Applicability of criminal law with respect to space
•
universal jurisdiction
4. Applicability of criminal law with respect to
persons
GENERAL ISSUES
criminal law vs. civil law
GENERAL ISSUES
„…the distinction between a crime and civil
wrong cannot be stated as depending upon
what is done, because what is done may be
the same in each case. The true distinction
resides therefore, not in the nature of the
wrongful act but in the legal consequences
that may follow it”
GENERAL ISSUES
different purpose of criminal law and civil law
criminal law – system of the punishment of
wrongdoers by the state (maintaining social
order)
civil law – system of compensation of losses;
system of rights and remedies for regulating
interaction between members of society
GENERAL ISSUES
substantive criminal law vs. criminal procedure
GENERAL ISSUES
DEFINITION OF SUBSTANTIVE CRIMINAL LAW
set of provisions describing forms of
conduct
(crimes)
that
have
an
associated punishment (penalty) or
security measure due to their socially
intolerable character
GENERAL ISSUES
DEFINITION OF CRIMINAL PROCEDURE
set of legally regulated actions
undertaken with a view to detecting an
offence and the offender (suspect,
accused, perpetrator of a crime),
putting the offender on trial, issuing a
verdict regarding the offender’s criminal
liability and, possibly, carrying out a
sentence or other measures
GENERAL ISSUES
EVIDENCE LAW
CRIMINOLOGY, VICTIMOLOGY
CRIMINALISTICS (forensic science)
INTERNATIONAL CRIMINAL LAW
EUROPEAN CRIMINAL LAW
APPLICABILITY OF CRIMINAL LAW
WITH RESPECT TO TIME
APPLICABILITY OF
RESPECT TO TIME
CRIMINAL
LAW
WITH
o
principle of non-retroactivity
o
retroactivity of the milder (more lenient)
statute
o
time of commitment of a crime
APPLICABILITY OF CRIMINAL LAW
WITH RESPECT TO TIME
PRINCIPLE OF NON-RETROACTIVITY
o
lex retro non agit
o
only a person who commits an act
punishable under the law in force at the
time of commitment of the crime bears
criminal liability
APPLICABILITY OF CRIMINAL LAW
WITH RESPECT TO TIME
PRINCIPLE OF NON-RETROACTIVITY - issues
o
o
o
o
o
date of publication of the law
date when the law comes into force
vacatio legis
derogation of the law
laws with specified binding time
o
non-retroactivity
principle
international criminal law
and
APPLICABILITY OF CRIMINAL LAW
WITH RESPECT TO TIME
RETROACTIVITY OF THE MILDER STATUTE
o
if the law in force when sentencing is
different to the law in force when the
offence was committed, the new law will
apply
o
the new law favourable to the
defendant will have retroactive effect,
even if it came into force after the
offence has been committed
o
„former law”
APPLICABILITY OF CRIMINAL LAW
WITH RESPECT TO TIME
TIME OF COMMITMENT OF AN OFFENCE
o
allows to determine whether the
committed act was prohibited by the
law at the time of comitment
o
which statute must be used if the law
has changed
o
age of the offender (minors)
o
mental capacity to commit a crime
APPLICABILITY OF CRIMINAL LAW
WITH RESPECT TO TIME
TIME OF COMMITMENT OF AN OFFENCE
o
the time of commitment of an offence
has to be understood as an act or
omission of an act and not the result
(effect) of an act
o
material offences (‘offence with result’)
- offences requiring particular result,
e.g. damage of property
o
continuous offences
possession of firearm
–
e.g.
illegal
APPLICABILITY OF CRIMINAL LAW
WITH RESPECT TO SPACE
APPLICABILITY OF
RESPECT TO SPACE
CRIMINAL
LAW
o
the territorial principle
o
extraterritorial criminal jurisdiction
o
universal jurisdiction
WITH
APPLICABILITY OF CRIMINAL LAW
WITH RESPECT TO SPACE
THE TERRITORIAL PRINCIPLE
o
typically national criminal law is
applicable on the territory of a state, its
vessels and aircrafts (regardless of the
nationality of the offender)
o
notion of a territory of a state
o
territorial jurisdiction in the international
criminal law
APPLICABILITY OF CRIMINAL LAW
WITH RESPECT TO SPACE
THE TERRITORIAL PRINCIPLE
place where an offence was committed
o
o
o
where act or ommission of an act
where the result take place
where the result is intended to take a
place
o
principle of ubiquity – a single act may
be committed in different places at the
same time
APPLICABILITY OF CRIMINAL LAW
WITH RESPECT TO SPACE
EXTRATERRITORIAL CRIMINAL JURISDICTION
o
principle of active personality (principle
of citizenship) – applicability of national
law to citizens committing crimes
abroad; applicable only if in a state on
whcih territory crime was committed
the act (or ommission) is considered a
crime as well
o
exception for state officials in some
jurisdictions
APPLICABILITY OF CRIMINAL LAW
WITH RESPECT TO SPACE
EXTRATERRITORIAL CRIMINAL JURISDICTION
o
royal principle (principle of interests) –
applicability
of
national
law
to
foreigners who, regardless of provisions
that are in force in the place where an
offence is committed, commits a serious
offence against interests of that state
(security, economic interests etc.)
APPLICABILITY OF CRIMINAL LAW
WITH RESPECT TO SPACE
UNIVERSAL JURISDICTION
in-class discussion
• definition
• conditional universal jurisdiction
• absolute universal jurisdiction
• objections to universal jurisdiction