A Contribution to the Conference on the Future of Europe

Athanasios Pitsiorlas1
February 2022

“Criminal offences are tried in accordance with the law

in force at the time when they are committed”

1. At the outcome of the Golden Dawn party trial in Athens in October of 2020 and the
public reactions to the judgment, I was about to finish a paper together with a proposal
about a full-grown problem. The paper remains unpublished; the last-minute reason for
has been Article 49(1) of the EU Charter of Fundamental Rights which says:
“No one shall be held guilty of any criminal offence on account of any act or omission which did
not constitute a criminal offence under national law or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time
the criminal offence was committed. If, subsequent to the commission of a criminal offence, the
law provides for a lighter penalty, that penalty shall be applicable.”

2. This initial paper does not campaign for the death penalty; it targets the underlined
sentence of Article 49(1) only! Given the experience of the problem, only a few notes are
necessary just to bring it to the attention of the Conference on the Future of Europe.

3. What Article 49(1) does is to prohibit retroactivity of criminal law against a person but to
permit it in favor of him. If something specific, it remains to be seen, could justify this
unbalanced situation, how much favorable treatment is enough for accused or
sentenced persons? If a government may change in subjective terms the law under
which criminal offences pending in justice will be tried or not tried at all but archived,
if the criminal penalties-determining system reminds us of seasonal sales,
if imposed sentences are served under an additional favorable system or yet cancelled,
criminal law does not serve its prevention purpose anymore. Of those three dimensions
the first one is the worse due to its dynamic extent.

4. Article 49 is regrettably a copy of Article 15 of the 1966 UN International Covenant on

Civil and Political Rights. But, the European Convention of Human Rights (1950), despite
its several amendments, has not included such a similar provision.

5. Since legal texts are drafted by lawyers instructed by politicians, such provision could not
have been a product of naivety but of strong initial deliberation. The keyword here is
imitation. Copied the initial idea has become a legal deception deeply ingrained today
and changing forms, an Achilles heel of modern democracy.

1
© Legal practitioner, Thessaloniki, Greece, pitsiorlaw@hotmail.com.
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6. I cannot talk about the entire Europe here. The problem appears frequently and
seriously in Greece. On the platform of Article 2 of the Criminal Code (Annex bellow),
almost every government changes criminal provisions, automatically with direct effect,
with regard to pending proceedings, trials or yet sentenced persons. Thus, a crime
changes category of severity, other stops constituting a crime, still another is subject to a
lighter sentence; still convicted persons leave the prisons, etc. All this is just experience.

7. As an example already mentioned, the members of the political party Golden Dawn
were arrested in 2013 but in 2020 they were sentenced under a new criminal code
entered into force on July 1, 2019 pending their trial. This Code reserves a lighter
sentence to the constitution of criminal organization, one of the counts charged with.

8. Let us add a level of experience. The basic argument behind Greek Law No 4322/2015 by
virtue of which serious criminals suddenly walked out of prisons was to find space. Just
after that and the reactions, I had this dialogue with a lawyer more experienced than me:
Q: “How many years has the problem with the prisons been going on?
A: Many!
Q: Why don’t they construct more prisons?
A: Should they construct more prisons, there would be no ground for transactions
between politicians and serious criminals that have available cash.”

9. What else to be said? Such transactions take place under the nose of democratic
unsuspecting citizens. In legal terms, the question the critical sentence of Article 49(1) of
the Charter poses is the criminal law set out and applied in abstracto or in concreto? By
being able to change and adapt the criminal law to a particular accused or convicted
person, criminal law functions in concreto. If criminal law is a gearbox at the hands of a
government or a minister, if serious crime can buy solutions during their proceedings or
afterwards, society will always be scandalized and the sense of injustice will worsen. I
am a scandalized citizen. In such terms, trust in the legal order cannot be built. Imagine a
judge who leaves the bench after long proceedings feeling he has done his task and just
after seeing the government intervening in or overriding his judgment!

10. While it is understandable and fully justified to have as legal principle not to prosecute
one without a law providing in advance for what is prohibited and what the sanction is,
it is not understandable why one who commits an act prohibited today to be tried under
a subsequent advantageous law. Does a country that toughens excessively criminal
penalties in abstracto every after a hot case appears publicly and loosens them in
concreto in view of particular trials or afterwards comply with the rule of law standards?

11. Is the EU Charter sacrosanct to let such a serious mistake untouched giving national laws
a reinforced power? Article 49(1) last sentence has absolutely nothing to do with the
legality or proportionality principles in its title. It has only to do with lack of seriousness.
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In fact, it runs against legality, part of which is stability and predictability of the
situations. When a crime pending in court stops being a crime it has nothing to do with
proportionally. Needless to say, criminal law does not involve the accused only. Article
49(1) must be reconsidered and criminal law must be aligned with and respect time and
common sense. One solution would be to repeal the last sentence of Article 49(1). A
more clear and necessary one is to insert into Article 49(1), at the place of the sentence
to be repealed, the next legal principle:
“Criminal offences are tried in accordance with the law in force at the time when they
are committed!”
Of course, such a change would carry away, towards a merge, next paragraph 2 of
Article 49 that already has the meaning intended by my proposal.

12. The so-called principle of retroactive application of the more lenient penalty is one of
the most deceptive ideas of the modern-era democracy against it. Let us put it simply:
Article 49(1) has become the standard backdoor to the place where serious crime and
politicians meet each other in the dark.

13. Do you really believe, Europe, in your money laundering legislation? On one hand, to
fight money laundering, you have made your territory a hostile place for the ordinary
citizens and businesses thus seriously and increasingly undermining your international
competiveness, on the other you keep an impressive backdoor to serious crime. If one is
charged with or sentenced for money laundering why his sentence should become
lighter during his proceedings or in prison? How could a professional accept such
restrictions and loss due to future hypothetical acts when, in the same field, serious
criminals are favored vis-à-vis certain crimes? Some days ago, media reported such a
distinguished case at the courts of Thessaloniki.

14. Because of the principle of retroactive application of the more lenient penalty, a
deceptive legal game with time and ordinary citizens, the broad legal picture has
become too complex, incoherent and fragmented. Look at some of the relevant blocks
and perspectives only: (1) the European Court of Human Rights steadily holds that the
legislator may not intervene in pending judicial cases. Criminal laws, however, with
retroactive effect favoring accused or convicted persons in whatever stage are wild
interventions in pending or closed cases and are permitted! While a judge cannot
anymore intervene in his own res judicata, the legislator who is prohibited to do so he
can! (2) Close to the subject, while it is not always clear if a legal provision is substantial
or procedural one, so-called substantive criminal provisions are given retroactive effect
if hold so, while procedural criminal provisions are not when hold so. In such cases,
strenuous interpretative attempts of judges, practically in full discretion, move to here
and there to conclude if a provision is substantive or procedural criminal law. In such a
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process, accused persons some times are favored and others are not. (3) Any lawyer
surprised may also recall that the proposed crystal-clear principle is indisputably present
in administrative law.2 But, administrative law, e.g. in competition, tax and tariff fields,
frequently contains criminal provisions and sanctions, applicable in terms of
administrative law. (4) All the more crucial and inevitable is that administrative and
criminal laws are crossed by the Ne bis in idem principle, a frequent problem that puzzles
judges. Supreme and European courts have given solutions not identical and final at all.
(5) When it comes to international law crimes, by already providing for what I propose
Article 49(2) of the Charter smashes the principle of retroactive application of the more
lenient penalty. And if something is acceptably smashed by block exceptions what kind
of principle is?

15. A savvy bona fide reader will accept that among these legal blocks there is not a clear
demarcation line or a gold principle of interpretation. In a labyrinth of legal structures
and thinking like this, to find an ad hoc solution a (national) judge follows his own
routine, his preferences or state’s interests; the result may at times be a random one.

16. If fundamental legal things are conceptually or/and mechanically so complex and
incoherent for the judges, their responses are equally reflected on the social life. But if
they meet frequently with social reaction could they be socially correct and functional?
Why not simplify legal time by harmonizing the two interlinked branches of
administrative and criminal law including its international dimension investing together
in social justice and harmony?

17. I am not aware if the effects of the principle of retroactive application of the more
lenient penalty on democracy and the rule of law have been measured. Have
criminology and sociology PhDs or others delivered results of any national quantitative
and qualitative research of retroactive criminal laws? Such measured results vis-à-vis the
consideration, if any, of this so-called principle would help reach decisions. But if such
research has not been done, what is the solid basis of the principle against its results?

18. Time is one of the two main parameters of human life. The backdoor through which the
legislator deceptively intervenes in human life must close forever. If the legislator must
be, as the title of Article 49 of the Charter says, legal, he must act for the future facts
only, not be unstable or deceptive ex post facto but prudent. Experience definitely
indicates towards a new principle of criminal law stability set out in the Charter.

2
Joined Cases 15/76 and 16/76 France v Commission *1979+ ECR 321, § 7.
C-85/87 Dow Benelux NV v Commission (Judgment of 17 Oct.1989) ECR 1989 p.3137, § 49.
T-339/04, France Télécom SA v Commission (Judgment of 7 Mar. 2007) *2007+ ECR II- 521, § 54 «the legality of an act
must be assessed by reference to the law and facts at the time when the act was adopted ….”.

International Covenant
on Civil and Political Rights
(1966, into force 1976)
Article 15
1 . No one shall be held guilty of any
criminal offence on account of any act
or omission which did not constitute a
criminal offence, under national or
international law, at the time when it
was committed. Nor shall a heavier
penalty be imposed than the one that
was applicable at the time when the
criminal offence was committed. If,
subsequent to the commission of the
offence, provision is made by law for
the imposition of the lighter penalty,
the offender shall benefit thereby.
2. Nothing in this article shall prejudice
the trial and punishment of any person
for any act or omission which, at the
time when it was committed, was
criminal according to the general
principles of law recognized by the
community of nations.
5
Annex
EU Charter of Fundamental Rights National Example:
(2007) Greek Criminal Code
(Law No 4619/2019)
Article 49 - Principles of legality
and proportionality of criminal Article 2 - Retroactive force
offences and penalties of the most lenient law
1. No one shall be held guilty of any
criminal offence on account of any act
or omission which did not constitute a
criminal offence under national law or
international law at the time when it
was committed. Nor shall a heavier
penalty be imposed than the one that
was applicable at the time the criminal
offence was committed. If, subsequent 1. If from the commission of an
to the commission of a criminal act until its final adjudication
offence, the law provides for a lighter more than one provision of
penalty, that penalty shall be laws has been in force, the one
applicable. that leads to the most favorable
treatment for the accused shall
be applied.
2. If a subsequent law has
defined the act as not
punishable, the sentence
imposed and its penal
consequences as well as the
security measures shall stop
being served.
2. This Article shall not prejudice the
trial and punishment of any person for
any act or omission which, at the time
when it was committed, was criminal
according to the general principles
recognized by the community of
nations.
3. The severity of penalties must not
be disproportionate to the criminal
offence.