Although the nulla poena sine culpa principle is not clearly recognised by the ECHR or in the Charter of Fundamental Rights of the European Union, several judgments acknowledge it in a more or less wide sense. European Courts identify the legal basis of the nulla poena sine culpa principle in the presumption of innocence, as provided by Article 6(2) ECHR as well as by Article 48 of the Nice Charter. However, the presumption of innocence is a principle regarding procedural criminal law and does not seem suitable as the basis for the nulla poena sine culpa principle, which pertains to substantive criminal law. The inadequacy of Article 6 ECHR as a basis for the principle of culpability forces the ECtHR to reason on the burden of proof at the procedural level. The suspected offence of absolute liability is thus turned into a presumption of liability that the defence needs to rebut. A similar approach can be found in the latest ECJ case law, which refers to Article 6(2) ECHR. To be more precise, the ECtHR case law shows a new hermeneutical approach relating the principle of culpability to the nulla poena sine lege principle, and from this perspective the legal basis of the principle is identified in Article 7 ECHR. In relation to the justiciability of the nulla poena sine culpa principle after the Lisbon Treaty, it seems appropriate to identify the basis of this principle in Article 49 of the Nice Charter or, to refer once again to the presumption of innocence, in Article 48. Whatever legal basis is referred to, the recognition of the nulla poena sine culpa principle also in the EU law system, through the Nice Charter, would multiply the chances of safeguard increasing the justiciability means. Basing the principle of culpability on the Charter of Fundamental Rights of the European Union implies its binding nature for the EU institutions as well as for Member States, since Article 6(1) TEU attributes to the Nice Charter “the same legal value as the Treaties”.

Keywords

Case law of Court of Justice of the European UnionCase law of European Court of Human RightsJusticiabilityLegal basis Nulla poena sine culpa principle

1 Fundamental Guarantees of Substantive Criminal Law in the Case Law of the European Courts

Before the Lisbon Treaty came into force, one of the main debated issues in criminal law doctrine was related to the EU competence to legislate in the area of criminal law. Thus, particular attention was paid to one constitutional principle governing criminal matters, namely the nulla poena sine lege principle. However, the case law of the Court of Justice of the European Union (from now on ECJ) prior to 2009 also deals with criminal matters that take into account further guarantees provided by the principle of offensiveness (combined with the principles of proportionality and necessity) and the principle of culpability. Furthermore, in the ECJ case law prior to the Lisbon Treaty, the principle of offensiveness appeared as a duty to provide criminal punishments for conducts prejudicial to Community legal values. This in turn led back to the nulla poena sine lege principle: it cannot be denied that assessments regarding the need for criminal law are thus taken away from the Member States’ sovereignty. A similar situation is found in the nulla poena sine culpa principle in the jurisdiction of the European Court of Human Rights (from now on ECtHR). As will be shown further,¹ this principle, as theorised by scholarship and formulated by the case law of the Italian Constitutional Court, inevitably leads back to the nulla poena sine lege principle, albeit from a different perspective, that of the sufficient certainty of criminal law, corresponding to the principle of precision.

A comparative analysis of ECJ and ECtHR case law—the latter by definition related to criminal matters—shows the need to enact the nulla poena sine culpa principle at supranational level.² It cannot be denied, however, that the ECtHR has always been in a better position to define fundamental guarantees that should govern substantive criminal law, thanks to a more favourable legal basis compared to the European Union context prior to the recognition of the Charter of Fundamental Rights of the European Union (known as the Nice Charter) in the TEU. The European Convention on Human Rights (from now on ECHR), even at a basic level, inevitably evokes the safeguard of guarantees informing the use of criminal law. These include the nulla poena sine lege principle, as provided by Article 7, starting with its heading, embodying the nulla poena sine lege maxim.³ Not surprisingly, there are numerous references to criminal law guarantees in the ECtHR case law, since Strasbourg Judges operate in a more favourable normative context. As previously shown in relation to the ECJ case law, the principle of offensiveness is once again intended from the perspective of the duty to provide for criminal sanctions to punish conducts prejudicial to fundamental rights in the ECtHR case law. In a legal context that tends to guarantee such principles, an earlier recognition of the nulla poena sine culpa principle by the Strasbourg Judges would have been appropriate, given that this guarantee does not seem to have been fully recognised until quite recently, as in the case of the Italian Constitutional Court. This means that for a long time in the ECtHR case law, this principle was not subject to the circularity mentioned above, leading almost intuitively to the nulla poena sine lege principle.

Such late identification of the nulla poena sine culpa principle in the case law of the European Courts is largely caused by the lack of an explicit provision not only in the EU treaties, whose originally mercantile vocation justifies such a lack in terms of fundamental guarantees, but also in the ECHR. In both contexts, the only, albeit approximate, reference seems to be the presumption of innocence, provided by Article 48 of the Nice Charter, to which Article 6(1) of the Treaty on European Union recognises the same legal value as the Treaties, as well as by Article 6(2) ECHR.⁴

2 The Nulla Poena Sine Culpa Principle in the Italian Context

Before examining the legal basis influencing the European Courts, I shall focus on some specific issues related to the nulla pena sine culpa principle in national law. To this end I shall adopt the viewpoint of the Italian criminal law, because of the high development of this principle in the Italian criminal law system.

Article 27(1) of the Italian Constitution identifies the principle of individual criminal responsibility without hesitation. Despite such a precise definition in the Constitution, the doctrine, and even the Constitutional Court, has minimised this constitutional principle, identifying it with the more obvious prohibition on the attribution of responsibility for the actions of others. This is why the Constitutional Court considered absolute liability pursuant to Article 27(1) of the Constitution for a long period of time.⁵

As commonly known, only thanks to the hermeneutic approach in Italian constitutional case law in the late 1980s, was the principle of individual criminal liability interpreted as prohibition on punishing a person for a wrongful act without mens rea.⁶ According to this perspective, the principle provided by Article 27(1) of the Italian Constitution requires a conduct linked to the accused as the author of the action by a nexus of material causality “but also and above all by the mens rea which must characterise—at least in the form of negligence—the most significant elements of the typical actus reus”.⁷ The committed crime should thus reveal a clear hostile behaviour or at least an indifference to the legal interest safeguarded by the criminal law provision.

The peculiarity of this new hermeneutic approach by the Italian Constitutional Court is that such interpretation of the principle of personal criminal liability has been related to the rehabilitation purpose of punishment provided by Article 27(3) of the Italian Constitution, thus revealing a further aspect, or rather the true meaning that criminal liability should acquire to be constitutionally compliant. To apply the most severe sanction provided by the Italian legal system, the offence through which the offender’s mens rea has been expressed should be attributed to the latter; in other words, the offender should be aware of the social impact of his/her conduct and that he/she has not complied with the duty of abstention from committing an offence imposed on citizens to encourage their responsible and personal contribution to a common project of social coexistence. Such awareness is jeopardised every time the meaning of the violated criminal law provision is not socially understandable, and as a consequence the lack of knowledge of the law provision becomes a further limit to criminal liability, and the offence cannot be attributed to the offender.

The reasoning of the Constitutional Court judges, based on a connection between the individual and the criminal provision that can be blamelessly ignored, inevitably leads to mala prohibita offences, which do not refer to the social harmfulness of the punished conduct. However, such an approach does not imply the incontrovertible reproach of the author of offences whose social harmfulness can be assessed on the phenomenal level. The offender might not be aware of the social harmfulness of his/her conduct due to limited mental capacity, to which the application of a punishment should be subject, as provided by the Criminal Code.⁸ On the constitutional level, the nulla poena sine culpa principle, therefore, involves a whole series of conditions allowing an offence to be attributed to the offender and a process of re-education to be legitimised.

3 The European Legal Basis of the Nulla Poena Sine Culpa Principle

As previously shown, the nulla poena sine culpa principle is not intended here as prohibition on punishing a person for a wrongful act without mens rea. Rather, it is seen from a perspective of assuming the greatest possible involvement of the offender. The offence can be attributed to its author only when he/she is capable of understanding the social harmfulness of his/her conduct; this means that a punishment can be applied only when, besides intent or negligence, the mental capacity of the offender can be assessed, together with his/her access to the criminal provision in the case of mala prohibita offences.⁹

However, despite the fact that such interpretation of the nulla poena sine culpa principle is widely accepted in the Italian legal system, the same cannot be said for the European context where the ECJ and ECtHR operate. As previously argued, neither the EU Treaties nor the ECHR explicitly refer to this principle.¹⁰ More precisely, a reference can be found in EU law, in Article 6(3) TEU, which recognises as “general principles of the Union’s law” the fundamental rights as they emerge from the constitutional traditions common to the Member States. However, the principle of culpability, in its narrow sense as prohibition on the attribution of responsibility for the actions of others, cannot be found in the Constitutions of the countries originally forming the European Community (France, Germany, Belgium, Luxembourg and Holland),¹¹ except for Italy; among the countries that joined the EU later, only the Portuguese Constitution explicitly refers to this principle intended as prohibition on the attribution of responsibility for the actions of others, since according to Article 30(3) “Criminal liability is not transferable”. The principle (of procedural criminal law) of the presumption of innocence is widely recognised, whereas the nulla poena sine lege principle is predominant and variously interpreted to the extent of including the lex mitior principle.¹² Equally significant is a constant reference to the prohibition of torture and inhuman or degrading treatment or punishment.¹³

The reason for the lack of an explicit constitutional provision on the nulla poena sine culpa principle could be that this principle should be immanent in a rule of law as a fundamental principle of legal civilisation. This could also explain why the Constitutional Charters of Contracting States do not include prohibition on the attribution of responsibility for the actions of others.¹⁴ As far as a narrow definition of the principle is concerned, no comparison can be made with national criminal legislation, where criminal offences based on absolute liability are commonly found despite the fact that they are even less compatible with the more complex nulla poena sine culpa principle, interpreted as a series of conditions that allow the offender to be reproached. This is largely testified to by the slow appearance of the nulla poena sine culpa principle in its wide sense in the Italian Constitutional court case law, which is still reluctant to strongly intervene even in the case of offences based on lawful conduct.¹⁵

The lack of a clear constitutionalisation does not prevent the principle of culpability from existing in the criminal law pertaining to the requirements of liability, in the wide sense attributed to it by the Italian Constitutional Court in 1988. Paragraph 17 of the German Criminal Code,¹⁶ Article 122-3 of the French Criminal Code and Article 14(3) of the Spanish Criminal Code are clear examples of this. Moreover, there are several instances whereby this principle has been given a constitutional identity, as testified to by the recent judgment of the Bundesverfassungsgericht of 30 June 2009 (known as Lissabon Urteil),¹⁷ which has some precedents and relates the principle of culpability to the guarantee of human dignity under Article 1 of the German Basic Law, thus considering it as “part of the constitutional identity which is unassailable due to Article 79.3 of the Basic Law and which is also protected against encroachment by supranational public authority”.¹⁸

The lack of an explicit constitutional provision on this principle inevitably encourages its violation; suffice to think about the hypothesis of absolute liability in the criminal laws of Member States, included even in Italian criminal law, despite the clear constitutionalisation of this principle. The French case is emblematic, since absolute liability for misdemeanours was abolished following the reform of the Criminal Code in 1994 but was maintained for petty offences.

The Spanish experience is different since, as provided by Article 5 in the Preliminary Title of the Criminal code,¹⁹ “No punishment whatsoever shall be imposed in the absence of either mens rea or negligence”, despite the fact that such categories are not expressed anywhere else.²⁰

The normative basis of national constitutions seems, therefore, to prevent the recognition of the nulla poena sine culpa principle as a general principle of the Union’s law.

4 The Nulla Poena Sine Culpa Principle in ECtHR Case Law

Having examined the legal context of the European Courts’ judgments, we can now try to assess whether the nulla poena sine culpa principle is applied in the jurisdictions mentioned above.

Despite the lack of an explicit reference to the nulla poena sine culpa principle in the ECHR, the ECtHR has identified the violation of the principle of the personal criminal liability, intended as prohibition on the attribution of responsibility for the actions of others, relying on the principle of the presumption of innocence, as provided by Article 6(2) ECHR.²¹

This was the case of the heirs of a Swiss entrepreneur sentenced to a fine for tax evasion of their bequeather. According to Article 130(1) of the Ordinance on Direct Federal Tax, “If the evasion is discovered only after the death of the taxpayer, proceedings shall be brought against his heirs. Irrespective of personal guilt, the heirs shall be jointly liable for the deceased person’s evaded taxes and the fine incurred by him up to an amount not exceeding their share in the estate”. The heirs applied to the ECtHR invoking, among other things, the violation of the presumption of innocence. The applicants contended that they had been compelled by a legal presumption to assume criminal liability for tax evasion allegedly committed by the deceased entrepreneur. More precisely, the Court argued that “It is a fundamental rule of criminal law that criminal liability does not survive the person who has committed the criminal act”, thus declaring the infringement of Article 6(2) ECHR.²²

Despite the ECtHR’s good intentions aimed at filling the gap regarding substantive criminal law guarantees provided by the ECHR, the reference to the presumption of innocence appears to be inadequate.²³ However, Article 6(2) ECHR is often referred to as a legal benchmark to report the punishment of conducts that are not based on the offender’s awareness. The leading case here is Salabiaku v. France ²⁴: the issue submitted to the ECtHR was related to the application of a criminal offence based on the simple possession of given goods that did not imply the offender’s criminal intention. The judgment followed the application proposed by a Zaïrese national convicted of smuggling prohibited goods after having taken possession of a truck with 10 k of drugs at the airport of Paris, despite the fact that he was unaware of the trunk’s contents.²⁵ The applicant had in fact gone to the airport to collect a suitcase that some relatives from Zaire had sent to him but found a trunk coming from the same country without any indication of its addressee, while a few days later he was informed that the suitcase that he was waiting for had wrongly been delivered to Bruxelles airport. Convicted of smuggling prohibited goods (as provided by the general clause of Article 392(1) of the French Customs Code, under the terms of which “the person in possession of contraband goods shall be deemed liable for the offence”), the applicant reported the violation of the presumption of innocence, since he had been convicted of a customs offence even though he was unaware of the luggage’s content, and the French Customs law pertaining to smuggling does not require any assessment of mens rea.

Given that it was not possible to assess the compatibility (in abstracto) of the national provision with the ECHR, the ECtHR simply verified whether the related offence had been applied in compliance with the presumption of innocence reported by the applicant.²⁶

The negative conclusion of the European judges was preceded by some general statements, often referred to in subsequent case law. According to the ECtHR, Contracting States “may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence”.²⁷

Furthermore, the Strasbourg Court has acknowledged that

Article 6 §§ 1 and 2 do not prevent domestic criminal law from providing for presumptions of fact or law to be drawn from elements proved by the prosecution, thereby absolving the prosecution from having to establish separately all the elements of the offence, provided such presumptions remain within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.²⁸

As the ECtHR has had the opportunity to explain in other judgments, the means employed have to be reasonably proportionate to the legitimate aim sought.²⁹ This implies that there should be a balance between the political-criminal assessment and the subsequent sanctions applied in the case in question.

Such statements seem to strongly deny the nulla poena sine culpa principle as a fundamental right guaranteed by the ECHR; however, the effort made by the European judges in assessing the offender’s guilty mind in order to deny the violation of the presumption of innocence indicates a tendency towards the fundamental guarantees of substantive criminal law.³⁰

In this case, the Court denied the violation of the presumption of innocence since the applicant, having realised that the luggage did not correspond to what he expected, should have verified its contents, rather than identifying himself as its owner. He had even been warned by an airport official not to take possession of the trunk unless he was sure that it belonged to him, since the luggage might have had illegal contents. Thus, the national judges, despite the fact that they could have referred to the presumption provided for by the Customs Code, assessed a certain élément intentionnel in the specific circumstances,³¹ similar to the risk-taking characterising recklessness in the Italian legal system.

As previously argued, the reference to Article 6(2) ECHR does not seem coherent as the legal basis of the nulla poena sine culpa principle.³² The use of the presumption of innocence has forced European judges to turn the hypothesis of absolute liability, implied in this specific case, into a hypothesis of (rebuttable) presumptions of liability, which could be overcome through evidence of the mental element. It is the procedural value of the principle provided by Article 6(2) ECHR that facilitates this hermeneutical approach: assessments by the national judges in relation to the guilty verdict of the offender are sufficient for the verdict to be considered compatible with Article 6(2) ECHR,³³ regardless of the structural deficits of the criminal offence considered in abstracto. It cannot be denied that the vocation of the ECtHR jurisdiction to express its opinion on a specific case contributes to this formulation of the judgment.

4.1 Some Similarities with the Hermeneutical Approaches of the Italian Constitutional Court

The hermeneutical approach based on the presumption of innocence has led the ECtHR to the point of excluding key aspects of the harmfulness of a criminal offence from its constituent elements. Marginalising the requisites of the offence, which might involve absolute criminal liability, thus allows the ECtHR to guarantee compatibility with the ECHR of punishment imposed for conducts that do not imply intrinsic unlawfulness. From this perspective, not only is the Prosecutor relieved of the burden of proof, while the defendant cannot compensate for it, but the defendant State can also avoid compliance with the reasonable limits that, according to the ECtHR, Article 6(2) ECHR imposes in the use of presumptions.³⁴

The issue that has allowed the ECtHR to have a further hermeneutical approach pertains to the relevance of mistake regarding the victim’s age in the offence of rape of a child under 13.³⁵

In the instant case, the complaint concerning the infringement of Article 6 ECHR is related to a conviction of rape of a 15-year-old boy for sexual intercourse with a 12-year-old girl. The applicant argued that he was wrongly convinced that the victim was the same age as him and that she had consented to sex. As in the Italian law, Sexual Offences Act 2003 does not recognise any value to the victim’s consent to sexual intercourse when the victim is a child under 13.³⁶ Once again, the inadequacy of Article 6 ECHR in basing the principle of culpability forces the ECtHR to reason on the burden of proof at the procedural level. Confirming the statements of the leading case Salabiaku v. France,³⁷ the ECtHR has argued that, if it is true that the presumption of innocence places the burden of proving the elements of the offence on the prosecution, Article 6 ECHR does not prevent the lawgiver from relieving the prosecution of the burden of proof through presumptions of fact or law, provided such presumptions remain within reasonable limits that take into account the importance of what is at stake and maintain the rights of the defence.³⁸ Having emphasised that “Contracting States remain free to apply the criminal law to any act which is not carried out in the normal exercise of one of the rights protected under the Convention”, and given that it cannot interfere with the political-criminal choices of the national lawgiver regarding the constituent elements of the offences,³⁹ the ECtHR has focused on the national discipline involved in the instant case. To this aim, the European judges have argued that the offence identified by the domestic criminal law requires an actus reus, represented by the sexual intercourse as described by law, and a mens rea, interpreted as the intention of carrying out the forbidden sexual intercourse, whereas knowledge of, or recklessness as to, the age of the child or as to the child’s unwillingness to take part in the sexual activity do not constitute elements of the offence,⁴⁰ and as a consequence the prosecution is not required to provide proof of it. This is why the principle of the reasonable limits considered in Salabiaku v. France would not be applicable here.⁴¹

In the attempt at self-restraint to guarantee the Sovereignty of the Contracting States, the ECtHR has not tried to verify the balance between the safeguard needs expressed by the sexual inviolability of juveniles and the principle of culpability, even though the latter is linked back to the presumption of innocence. The exclusion of the victim’s age and her consent from the constituent elements of the offence allows the European judges to avoid assessing the reasonable limits, delimiting the legitimacy of presumptions.

In this sense, one cannot but help making a comparison with the history of the nulla poena sine culpa principle, in terms of the protection of the sexual inviolability of juveniles, which prevailed on the guarantees expressed by the principle of culpability, in the case law of the Italian Constitutional Court. According to the Constitutional Court’s approach, which assigned to Article 27 of the Italian Constitution the narrow sense of prohibition on the attribution of responsibility for the actions of others, constitutional judges have noted that, even considering any mental nexus between the conduct and the harm as an essential requisite of personal criminal liability, the discipline on error aetatis (formerly Article 539, today 609 sexies Criminal Code) appeared to be compatible with the Constitution. In an outdated interpretation of the Italian Constitutional Court, the criminal offence needed to include a mental ingredient, since awareness and volition would have affected sexual intercourse only, rather than the age of the victim, considered “a prerequisite for the offence and more specifically a (non-objective) condition of liability for punishment”.⁴² This means that the European judges’ recent interpretative stratagem to exclude the victim’s age from the constituent elements of the offence of the performance of sexual acts with a minor was already being applied in less recent Italian constitutional case law.

Returning to the case law of the Italian Constitutional Court, the change of approach shown by judgments no. 364 and no 1085 in 1988 inevitably affected its subsequent case law, which has recently returned to this issue. In judgment no. 322 of 2007,⁴³ the Italian Constitutional Court relates the principle of culpability to the principles of the nulla poena sine lege and non-retroactivity in criminal law, principles that all share the same aim “to guarantee to those subject to the criminal law the freedom to choose (judgment No. 364 of 1988) on the basis of assessments made in advance (calculability) of the legal consequences of their own conduct”.⁴⁴ Thus, if the lawgiver was in the position of totally disregarding the mens rea in the structuring of the offences, the balance between the principle of culpability and other values with constitutional status—whose safeguard requires the use of criminal law—would be left to the legislator’s discretion, “with the resulting encroachment on the presumption of innocence and ‘underlying’ goals of the principle of blame”.⁴⁵

As opposed to the ECtHR, the Constitutional Court does not prevent itself from balancing the interests at stake, since it is facilitated by a different legitimation of its jurisdiction. However, the delicate issues involved in the criminal law provision suspected of unconstitutionality has proved to be an obstacle for a more effective decision of the Constitutional Court, which has ruled the issue of constitutionality to be ineligible.⁴⁶

4.2 The Variable Solidity of the Strasbourg Judges’ Reasoning

It would be superficial to blame the ECtHR for the hermeneutical approaches that have prevented the nulla poena sine culpa principle from having its role recognised among the fundamental rights identified by the ECHR. The ECtHR has the hard task of ensuring the safeguard of fundamental rights within the context identified by the submissions of law of applicants and by rebuttals carried out by representatives of the Contracting States. This is why the value of given principles is affected by the role that they have in the legal system of the State involved and by the applicants’ ability to identify an adequate legal basis in the ECHR. The more a national legal system guarantees a given principle on a formal level and in terms of its dogmatic formulation, the more will be the resources used to safeguard it even on a supranational level, providing the ECtHR with a stronger reasoning. It is no coincidence that a better formulation of the nulla poena sine culpa principle and of its legal basis can be found in a more recent judgment of the ECtHR concerning Italy.

This is the well-known Punta Perotti case, which led to the Sud Fondi srl v. Italy judgment on the European level.⁴⁷ Taking advantage of the importance of the nulla poena sine culpa principle in the national law system, where it is constitutionally recognised and distinguished from the principle of the presumption of innocence (concerning procedural criminal law),⁴⁸ applicants refer to the nullum poena sine lege principle (concerning substantive criminal law) to report the incompatibility with the ECHR of the sentence they have received. The reference to Article 7 ECHR allows us to emphasise a fruitful connection between the nulla poena sine culpa principle and the nullum poena sine lege principle, a connection that was immediately perceived by the Strasbourg Judges. Having emphasised that the notion of law, as provided by Article 7 ECHR, includes both that of legal origin and that of case law origin, the Court specified that it implies the qualitative conditions of accessibilité and prévisibilité. ⁴⁹ Furthermore, the ECtHR argues that

l’article 7 ne mentionne pas expressément le lien moral entre l’élément matériel de l’infraction et la personne qui en est considérée comme l’auteur. Cependant, la logique de la peine et de la punition ainsi que la notion de ‘guilty’ (dans la version anglaise) et la notion correspondante de ‘personne coupable’ (dans la version française) vont dans le sens d’une interprétation de l’article 7 qui exige, pour punir, un lien de nature intellectuelle (conscience et volonté) permettant de déceler un élément de responsabilité dans la conduite de l’auteur matériel de l’infraction.⁵⁰

In this sense, it would not be coherent to expect the accessibilité and prévisibilité of the law while at the same time letting a person being considered guilty and punished even though he/she is not in a position to know the criminal law due to an unavoidable mistake he/she is not responsible for.⁵¹ The principle of culpability is, thus, related to the nulla poena sine lege principle. A legal system preventing the accused from knowing le sens et la portée of the criminal law not only fails to meet the qualitative requirements of a law, but it is also lacking in terms of specific needs pertaining to the nullum poena sine lege principle in criminal matters.⁵² It could be argued that the unavoidable ignorance of the criminal law implies that the law provision itself does not exist for the offender at the time when the offence was committed.

To be precise, such a development in the reasoning on the principle of culpability had already been inherent in the ECtHR case law based on the nulla poena sine lege principle, as provided by Article 7 ECHR for a long time, particularly in terms of the precision of the offence, implying the requisite of the predictability of the penal consequences of one’s behaviour. If it is true that the nulla poena sine lege principle forces the legislator to formulate the criminal law provision in a sufficiently clear manner, in order to make its content recognisable and therefore allow citizens to foresee the penal consequences of their conduct, the addressees of the message of the criminal law provision have the duty to be informed about the law regulating the activities that they might want to carry out. This makes it possible to assess the prévisibilité of the criminal law provision in relation to the possibility of demanding such a duty, thus revealing a sort of circularity between the nulla poena sine lege principle and the principle of culpability.⁵³

The leading case of this important hermeneutical development is the judgment Cantoni v. France.⁵⁴ In this case submitted to the European judges, the manager of a French supermarket reported the infringement of Article 7 ECHR subsequent to a sentence for unlawfully selling pharmaceutical products. The applicant’s submissions of law concerned the national law on health issues, particularly the provision of the French Public Health Code, according to which the definition of medicament is considered extremely imprecise, leaving wide margins to the judges’ opinion on some borderline products. The applicant’s submissions of law allowed the ECtHR to focus on the compliance with Article 7 ECHR of the techniques of regulation by rules founded on the use of general categorisations. The Strasbourg Judges remarked that such techniques of regulation by rules are a “logical consequence of the principle that laws must be of general application”.⁵⁵ However, the nulla poena sine lege principle requires that the law provision has a core of certainty wide enough for its application to be sufficiently clear in the large majority of cases, while the clarification of the borderline hypothesis, included in the grey areas at the fringes of the definition, is left to the judges.⁵⁶ In the instant case, the Strasbourg Judges considered vital the jurisprudence of the French Court of Cassation, which tended to recognise the medicinal value of para-pharmaceutical substances. To assess its prévisibilité, the ECtHR emphasised that the latter is not affected by the fact that (within reasonable limits) “the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”, particularly in the case of professional activities that require a high degree of caution.⁵⁷ From this perspective, the Strasbourg Judges put the requisite of the foreseeability of the law provision, as identified by French case law, in relation to the duty to keep oneself informed, neglected by the applicant, who could have consulted an expert to be informed of the penal consequences of his/her conduct.

On a general level, the ECtHR case law based on Article 7 ECHR shows similarities with the line of case law stemming from the Italian Constitutional Court in judgment nos. 364 and 1085 of 1988. However, in the previous line of ECtHR case law mentioned above, the submissions of law made by the parties prevent the principle of culpability, and its relation with the nulla poena sine lege principle, from standing out, due to the fact that the references to Article 7 ECHR focus exclusively on the nulla poena sine lege principle rather than on the principle of culpability. Moreover, the Strasbourg Judges’ focus on the requirements of accessibilité and of prévisibilité in assessing a violation of Article 7 ECHR reveals only a moderate attention to the principle of culpability. To be more precise, the assessment of the qualitative requirements of criminal law reveals its need to be compatible with different constitutional systems of various Contracting States, and this would be rather difficult if European judges focused on the sources of a criminal law provision.⁵⁸

5 ECJ Case Law

A comparison with ECJ case law is surprising if we consider that the experience of the EU, which did not originally have competence to legislate in the area of criminal law, has been marked for a long time by the principle of personal punitive liability, both in the sense of prohibition on the attribution of responsibility for the actions of others and in the sense related to the principle of culpability, typical of substantive criminal law.

Given the complex legal context of the EU, it is worth examining the hermeneutical approaches of the ECJ on the nulla poena sine culpa principle, keeping separate the different forms of safeguard of the European legal interests, whose normative transposition generates the issues submitted to the European judges.

As commonly known, the safeguard of legal interests relevant to the EU can be expressed with varying intensity, depending on the degree of involvement of the national legislature.⁵⁹ A first level, which is certainly more significant in terms of impact on the Member States’ legal systems, includes offences provided for and punished by Regulations.⁶⁰ At the level of the national legislature, instead, there are offences that, despite being provided for by EU law, are sanctioned by the Member States’ legal systems.

It is obvious that it is possible to trace judgments of the ECJ pertaining to the issue of criminal liability only in relation to offences of a European origin at the second level. The lack of a direct criminal law competence of the EU⁶¹ prevents a definition of criminal offences and sanctions from being expressed in a comprehensive manner in the EU sources of law without any intervention of the Member States. However, the ECJ’s more civil-rights-oriented positions can be found in the case law pertaining to offences provided for and punished by Regulations, whose administrative nature is undeniable.⁶²

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Nulla Poena Sine Culpa Principle in European Courts Case Law

The Nulla Poena Sine Culpa Principle in European Courts Case Law