APPLICATION OF THE LEX PRAEVIA PRINCIPLE TO COURT INTERPRETATION

Abstract

A criminal law that criminalizes an act or increases punishment for it shall not have retroactive force. The aim of this paper is to explore to what extent lex praevia applies to a judicial interpretation of a provision when it broadens the definition of crime or makes a punishment heavier while the provision itself remains unchanged. Opinions on this issue vary in academic circles and in court practice, which make this issue worth exploring.

Some lawyers believe that lex praevia applies to the law alone and not to its interpretation. According to this opinion, any other approach would conflict with the essence of the law, which must be able to evolve along with the development of society in order to meet new challenges. Other lawyers argue, however, that the law is defined by how it is interpreted by a court in real time, when the trust in it is legitimate. According to this view, lex praevia should also apply to judicial interpretation when it broadens the boundaries of liability.

This paper takes the position of the latter opinion. Due to the abstract nature of a provision, it is the function of a court to elucidate it and adequately communicate it to the public, and the interpretation of this provision should also as trustworthy and stable as the law itself for the addressee and must not come as a surprise to him/her post factum.

Criminal law in a legal state has a guaranteeing function ensured by the following requirements: the prohibition of the application of non-statutory law (lex scripta); the prohibition of analogy (lex stricta); the prohibition of indeterminate legal provisions (lex certa); the prohibition of retroactive application of criminal law (lex praevia).1These prohibitions follow from one another, and in their entirety, they create legal stability and security.