The non-retroactivity of the law means that, as a general rule, the law does not apply to events that occurred in the past; it is what jurists call the principle of non-retroactivity of the law. The essence of this principle implies that the effect of a law does not extend to include past issues and can not judge events that occurred before its implementation.
A law is only applicable to events given after its entry into force. Therefore, the date of entry into force of a law is decisive to determine its applicability. The principle that people should not suffer the application of laws with retroactive effects starts from another principle: there is no crime or punishment except if it has been established in accordance with the law.
This principle was initially formulated in the Declaration of the Rights of Man of 1789, and then in the French Constitution of 1791. It was a fundamental part of the Bavarian Code in 1813, when the philosopher Ludwig Feuerbach formulated the phrase crime nullum sine lege, nulla poena sine lege . The principle was widely accepted in nineteenth-century Europe.
Index
- 1 What is it?
- 2 In Spain
- 3 In Mexico
- 4 Example
- 5 References
What is it?
The irretroactivity of the law - logically linked to the principle of non-retroactivity - is a procedural rule that prohibits the courts from applying a subsequent law that had not been promulgated when the event that was the subject of the trial occurred. However, there are two exceptions to this rule:
-The first exception allows the retroactive application of a new rule, if this regulation positions a type of private conduct over the power of the State to proscribe.
-The second exception to this general principle is for the rules of criminal procedure that imply the fundamental impartiality and precision of the criminal process.
The legal provisions do not last forever. On the other hand, there is a specific time lapse in which they will be applied, which is the period from the date of its entry into force until the date of its cancellation. These should not be canceled unless the public interest so requires.
The notion of non-retroactivity of the law has been established for public protection. However, there may be exceptions, such as when the new law is favorable to an accused individual.
In cases where the law provides for the nullification of the offense or mitigates punishment, the accused would be interested in applying the law retroactively, even though their crimes had been committed in the past.
In Spain
The non-retroactivity of the law is very present in the Spanish legal system. Normally in each new regulation will be established if it is retroactive or not.
However, if that specific determination does not exist, it must be the person who interprets it, the court or judge who must decide, taking into account both the general principles of law and the principle of non-retroactivity. Article 9.3 of the Spanish Constitution of 1978 says in this regard:
"L a Constitution guarantees the principle of legality, the normative hierarchy, the publicity of the norms, the non-retroactivity of sanctioning provisions that are not favorable or restrictive of individual rights, legal certainty, responsibility and the interdiction of the arbitrariness of public powers".
Thus, the Spanish Constitution is constituted as official guarantor of the principle of non-retroactivity in the Spanish legal system. If regulations are drawn up that impose contrary sanctions or limit any right, they will not extend their consequences to events that occurred prior to its entry into force.
An exception is the regulation of individual rights, since these can be applied retroactively, recognizing new rights. Individual rights (fundamental rights) are those included in Title I of the Spanish Constitution of 1978.
In Mexico
Article 14 of the Political Constitution of the Mexican States makes it very clear when it states the following:" No law shall be retroactive to the detriment of any person."
This means that, when the legislation is changed through reforms or by adding new elements, it can not be applied to a person if it is going to harm him or if it is a detriment to rights already acquired by an act prior to the law.
The retroactive effect does occur in criminal law, when crimes are no longer punishable; For example, adultery was previously a crime and was punishable by imprisonment. With the new legislation applied retroactively, those who had been imprisoned under the old law benefited from the application of the new one.
The Mexican Supreme Court does not proclaim a precise criterion on non-retroactivity, but its jurisprudence is rather confusing. In the case of acquired rights, it accepts retroactivity in cases where public order or general interest is affected.
Example
Mr. García has a company that has X number of employees and, given the current legislation, he has to pay taxes according to the first section of the tax modules that apply to his business.
For years Mr. Garcia has paid his taxes without delays or inaccuracies. In the current year, a legislation is drafted and comes into effect that modifies the ratios for the number of employees that make up each of the sections that define the tax modules.
As a result, Mr. García's business goes up in installments and a different tax rate is applied to future taxes. However, according to the non-retroactivity of the law, it is not possible to file claims for tax returns filed prior to the entry into force of the law.
References
- Alnoweises Law Firm. The principles of non-retroactivity of law. Alnoweises.com
- Cecs. The history of the principle of non-retroactivity. Users.cecs.anu.edu.au
- US Legal Nonretroactivity Principle Law and Legal Definition. Definitions.uslegal.com
- João Grcmdino Weddings. The Doctrine of Non-Retroactivity of International Treaties. American Journal of International Law
- Legal Encyclopedia online. Non-retroactivity of the Law in Mexico. mexico.leyderecho.org