20
which social reproach and its consequences were expressed. 68 Moreover, the principle of the
retroactivity of the most favorable criminal norm indicates that, if subsequent to the
commission of the offense the law provides for the imposition of a more lenient punishment,
the guilty person shall benefit therefrom. 69 The Court has also stated that the right to
freedom from ex post facto laws is designed to prevent a person being penalized for an act
that, when it was committed, was not an offense or could not be punished or prosecuted.70
61. The Court has expressed that when applying criminal legislation, the judge is obliged
to adhere strictly to its provisions and observe the greatest rigor to ensure that the behavior
of the defendant corresponds to a specific criminal codification, so that the defendant is not
punished for acts that are not punishable by law. 71 The elaboration of a criminal codification
implies a clear definition of the criminalized conduct, establishing its elements and the
factors that distinguish it from behaviors that are either not punishable offences or are
punishable but not with imprisonment.72 Moreover, this Court highlights that the punishable
conduct implies that the scope of application of each of the criminal codifications be outlined
in as clear a manner as possible;73 that is, in an express, accurate, and restrictive manner.74
62. In the same sense, the European Court of Human Rights has ruled on the guarantee
enshrined in Article 7 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms ("ECHR"), equivalent to Article 9 of the American Convention75
68
Cf. Case of Baena Ricardo et al. V. Panamá. Merits, Reparations and Costs. Judgment of February 2, 2001.
Series C No. 72, para. 106, and Case of J., supra, para. 279.
69
Cf. Case of Ricardo Canese, supra, para. 178, and Case of Mémoli, supra, para. 155.
70
Cf. Case of Ricardo Canese, supra, para. 175, and Case of the Constitutional Court (Camba Campos et al.)
V. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 28, 2013. Series C No. 268,
para. 114.
71
Cf. Case of De La Cruz Flores V. Perú. Merits, Reparations and Costs. Judgment of November 18, 2004.
Series C No. 115, para. 82, and Case of Mohamed V. Argentina. Preliminary Objection, Merits, Reparations and
Costs. Judgment of November 23, 2012. Series C No. 255, para. 132.
72
Cf. Case of Castillo Petruzzi et al. V. Perú. Merits, Reparations and Costs. Judgment of May 30, 1999. Series
C No. 52, para. 121, and Case of J, supra, para. 287.
73
Cf. Case of Castillo Petruzzi et al.. Merits, Reparations and Costs, supra, para. 121, and Case of Usón
Ramírez V. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 20, 2009.
Series C No. 207, para. 55.
74
Cf. Case of Kimel V. Argentina. Merits, Reparations and Costs. Judgment of May 2, 2008. Series C No. 177,
para. 63, and Case of Usón Ramírez, supra, para. 55. See also, Case of López Mendoza V. Venezuela. Merits,
Reparations and Costs. Judgment of September 1, 2011, Series C No. 233, para. 199, wherein in reference to the
period had by an authority to decide on the relevant penalty, the Court noted that “under the framework of due
process laid down in Article 8(1) of the American Convention, legal certainty must safeguarded regarding the
period in time in which a sanction may be imposed. In this regard, the European Court has held that the law should
be: i) adequately accessible, ii) with sufficient precision, and iii) foreseeable.”
75
Article. 7(1) of the ECHR: “No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence under national or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal
offence was committed.” The European Court has interpreted this provision in the sense that said guarantee is an
essential element of the Rule of Law and thus holds an important place in the system of protection of the European
Convention. Article 7 is not limited to the prohibition of the retroactive application of the criminal law to the
detriment of the accused, rather it incorporates, in a general manner, the principle that only the law can define and
establish an offense (nullum crimen, nulla pena sine lege). Therefore, the offense and its penalty must be clearly
defined by law. Cf. ECHR, Case of Kononov V. Lithuania [GS], No. 36376/04. Judgment of May 17, 2010, para.
185; Case of Del Río Prada V. Spain [GS], No. 42750/09. Judgment of October 21, 2013, paras. 77-79. In the
same sense: Case of Kokkinakis V. Greece, No. 14307/88. Judgment of May 25, 1993, para. 52; Case of Coëme
and others. V. Belguim, Nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96. Judgment of June 22,
2000, para. 145; Case of Kafkaris V. Chipre [GS], No. 21906/04. Judgment of February 12, 2008, para. 138; Case
of Cantoni V. France, No. 17862/91. Judgment of November 11, 1996, para. 29. Moreover, said principle prohibits
broadening the scope of the existing offenses to acts that do not constitute offenses; it also establishes that
criminal law should not interpret in an extensive manner to the detriment of the accused. Moreover, the Court