23
68. In addition, the Court notes that the European Court has held that the principle of
legality does not establish any requirements as to the procedure in which those offences
must be investigated and brought to trial.82 For example, the absence of a regulation
established by law for the prosecution of a criminal offense can be analyzed from the
standpoint of the right to due process that is guaranteed by Article 6 of the ECHR, but this
does not in itself affect the principle of legality.83 On the other hand, the immediate
application of regulations governing procedure (the principle of tempus regit actum) is not
contrary to the right to freedom from ex post facto laws. However, the European Court in
each case determines whether the legislation in question, regardless of its formal
denomination, consists strictly of procedural or substantive criminal laws, in regard to the
manner in which they affect criminal classification or severity of the penalty.84 In this sense,
have already been fulfilled in accordance with the prior law. Likewise, the Constitutional Court of Colombia, in its
Judgment C-371-11 reiterated its case law on this matter and concluded that "[the principle of the most favorable
norm] is an exception to the general rule that the laws govern into the future, the proper context of application is
the succession of laws, and this cannot be ignored under any circumstances.”Cf. Judgment of the Constitutional
Court of Colombia, Judgment C-619/01 of June 14, 2001; Judgment C-371-2011 of May 11, 2011, paras. 32 to 36
of section VI. Grounds for the decision; Judgment C-252-2001 of February 28, 2001; Judgment C-200-2002 of
March 19, 2002; Judgment T-272-2005 of March 17, 2005; Judgment T-091-2006 of February 10, 2006, para. 7 of
section IV. Grounds of the decision, and Judgment C-633/12 of August 15, 2012, available at:
http://www.corteconstitucional.gov.co. In regard to Argentina, see Judgments of the Supreme Court of Justice of
the Nation (Argentina), Case of Fundación Emprender V. D.G.I, Judgment of March 5, 2013, and Case of Gardebled
Brothers V. National Executive Power, Judgment of August 14, 2007. In regard to Chile, see Article 11 of the Code
of Criminal Procedure of December 12, 2002, and Article 24 of the Law on retroactive application of laws, of
October
7,
1861,
available
at:
http://www.leychile.cl/Navegar?idNorma=225521&idVersion=186110.07&buscar=ley+sobre+efecto+retroactivo+de+las+leyes. Similarly, Cf. Supreme Court of Chile, Second
Criminal Chamber. Cause of Action No. 1777/2005. Resolution No.28233 of November 2, 2006, available at:
http://corte-suprema-justicia.vlex.cl/vid/-255231242. In regard to Nicaragua see Supreme Court of Justice,
Judgment
No.
14.
Managua
of
February
16,
2011,
available
at:
http://www.poderjudicial.gob.ni/pjupload/spenal/pdf/cpp11.pdf, as well as Law 745, Law on Implentation, Benefits
and
Control
of
Jurisdiction
of
the
Criminal
Penalty,
available
at:
http://legislacion.asamblea.gob.ni/normaweb.nsf/9e314815a08d4a6206257265005d21f9/3c064227c5f969050625
783f006a7563?OpenDocument. In regard to the Dominican Republic see Article 110 of the Political Constitution of
the Republic, published in the Official Gazette No. 10561, on January 26, 2010. In regard to Uruguay, see Article
12 of the General Code of Procedure, Law 15,982, and the Judgments of the Supreme Court of Justice of Uruguay,
Judgment of Decemeber 6, 2000, No. 517/2000, cassation recourse; Interlocutary Order of July 25, 2001, No.
685/2001 complaint, and Judgment of February 21, 1994, No. 38/1994, cassation recourse. In regard to
Venezuela, see Article 24 of the Constitution of the Bolivarian Republic of Venezuela, published in the Extraordinary
Official Gazette N. 36.860, of December 30, 1999; Article 2 of the Criminal Code of Venezuela, published in the
Extraordinary Official Gazette Nº 5.49420, of October 20, 2000, and the Constitutional Chamber of the Supreme
Tribunal of Justice, Judgment N.° 3467, of December 10, 2003, case fil 02-3169; Judgment N.° 35, of January 25,
2001, case file 00-1775, and Court of Appeals on Regular Criminal Matters, Principle Matter: WP01-P-2007000374, Asunto: WP01-R-2013-000203, of May 14, 2013.
82
Cf. ECHR, Case of KhodorkoVkiy and Lebedev V. Rusia, Nos. 11082/06 and 13772/05. Judgment of July 25,
2013, para. 789.
83
Specifically, in the Case of Coëme V. Belgium (1999), in the decision on admissibility, the European Court
examined if whether the lack of implementing a constitutional provision allowing the prosecution of ministers
before the Court of Cassation infringed the principle of legality. The constitutional provision stated that a law would
determine the cases of responsibility, the penalties and the manner to proceed against them. Although the
constitutional provision was not implemented in Belgian law at the time the former Minister was prosected (unlike
this case in which the IPOHA entered into force before the trial of the alleged victim), the European Court
considered that the common crimes for which he was convicted were foreseable under the ordinary rules of Belgian
criminal law. In this sense, it was clearly stated in the wording of “Article 103 of the Constitution that ministers
should, like any defendant, be held accountable for their crimes.” Therefore, the existing constitutional provisions,
to the extent that they established the criminal responsibility of ministers, met the requirements of accountability
and forseability of Article 7. Consequently, the European Court declared the complaint relating to Article 7
inadmissible, and discussed the lack of prior procedural rules from the standpoint of Article 6 of the ECHR
(equivalent to Article 8 of the American Convention). Cf. ECHR, Case of Coëme and others. V. Belguim, No.
32492/96 et al. Decision of March 2, 1999 and Judgment of Merits of June 22, 2000.
84
Cf. Scoppola V. Italy (N°2) [GS], No. 10249/03. Judgment of September 17, 2009, paras. 110-113. The
European Court considered it reasonable that national courts apply the principle of tempus regit actum regarding