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THE CONSTITUTIONAL AND CONVENTIONAL FOUNDATION OF THE PRINCIPLE NULLUM CRIMEN, NULLA POENA SINE LEGE
Abstract
The study explores the constitutional and conventional foundations of the criminal law principle nullum crimen, nulla poena sine lege, as a fundamental safeguard of legality and predictability in penal systems. The analysis investigates how this principle, enshrined in Article 23(12) of the Romanian Constitution, Article 7 of the European Convention on Human Rights, and Article 49 of the Charter of Fundamental Rights of the European Union, operates as both a guarantee against arbitrariness and a structural limit to judicial creativity. The main problematic concerns the dynamic interpretation of legality in light of the evolving jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union, particularly regarding retrospective judicial constructions, expansive interpretation of criminal norms, and the balance between foreseeability and social protection. The research adopts a comparative and doctrinal method, combining constitutional hermeneutics with analysis of leading ECtHR and CJEU cases [2] (e.g., Kokkinakis v. Greece, Scoppola v. Italy, Taricco II). By integrating constitutional and conventional perspectives, the study highlights the convergence of national and supranational standards in consolidating the rule of law and the individual’s legal certainty in criminal justice.
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Ashworth, A.,Principles of Criminal Law (1991). in C Kennedy & L Farmer (eds), Leading Works in Criminal Law. 1 edn, Analysing Leading Works in Law, Routledge, London, pp. 192-219. DOI: 10.4324/9781003193982-10
European Court of Human Rights, Kokkinakis v. Greece (Judgment), Reports of Judgments and Decisions, Strasbourg, France, 1993, pp. 1–32, ISSN 1028-5590, DOI: 10.1093/law:ihrl/22echr93
European Court of Human Rights, Kononov v. Latvia (Grand Chamber), Reports of Judgments and Decisions, Strasbourg, France, 2010, pp. 1–78, ISSN 1028-5590, DOI: 10.1093/hrlr/ngq017
European Court of Human Rights, S.W. v. The United Kingdom, Reports of Judgments and Decisions, United Kingdom/France, 1995, pp. 1–24, ISSN 1028-5590, DOI: 10.1093/law:ihrl/7echr95
Cassese A., Cassese's International Criminal Law,Oxford University Press,ISBN 978-0-19-969492-1
Schaack, Beth Van, The Principle of Legality in International Criminal Law,2011, http://digitalcommons.law.scu.edu/facpubs/634
Ambos K., Treatise On International Criminal Law (Vol. II) The Crimes and Sentencing-Oxford University Press,2014
European Union Agency for Fundamental Rights, The Principle of Legality and Criminal Justice Safeguards in Europe, FRA Research Report, 2024
United Nations Human Rights Committee, General Comment No. 29 on Article 15 ICCPR, UN Documentation Centre, Switzerland, 2001
Rome Statute of the International Criminal Court, Article 22 – Nullum Crimen Sine Lege, United Nations Publications, ISBN 978-92-9227-227-2
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