Retroactive Application of Criminal Law – Commentarry on the judgment of the Constitutional Court of Georgia

Abstract

This article is a comment on the judgment delivered by the First Board of the Constitutional Court of Georgia on 13 May 2009 concerning the constitutionality of Article 3.1 of the Criminal Code of Georgia. The author presents his views on the constitutional aspects of the application of the said provision. Also, the article discusses the interpretation of the scope and contents of Article 42.5 of the Constitution, attempts to determine the interaction between the respective constitutional and criminal law provisions, analyse aspects related to the retroactive application of criminal law and address important issues from theoretical and practical perspectives. The Article is intended for specialists as well as broader groups of readers.

Retroactive application of criminal law is directly linked to the protective function of law. It reminds us that guarantee of physical security of a person is an important function of criminal law. Criminal law serves as a safeguard against arbitrary retribution/punishment of criminals. The protective function, derived from the fundamental principle of criminal law – nullum crimen sine lege (no punishment without law), is usually set forth in respective provisions of national legal orders. In case of Georgia, this principle is enshrined in Article 2.1 of the Criminal Code of Georgia which reads as follows: “[a]n act shall be defined as criminal and punishable by the criminal law being in force at the time of its commission”.