24
the principle of legality ("no penalty without law") established in Article 7 of the ECHR
applies only to the regulations or measures that define criminal offenses and the penalties
thereof.
69. This Court considers that the immediate application of regulations governing the
procedure, do not violate Article 9 of the Convention because reference is drawn from the
moment in which the procedural act took place and not in which the commission of the
criminal offense took place, unlike the regulations establishing offenses and penalties
(substantive regulations), where the pattern regarding application stems specifically from
the moment in which the offense was committed. That is, the acts that make up the
procedure are completed according to the procedural stage in which they originate and they
are governed by the applicable regulation in force.85 In light of this, and given that the
procedure is comprised of a judicial sequence that is in constant movement, the application
of a regulation governing the procedure after the commission of an alleged crime does not
contravene per se the principle of legality.
70. Given the aforementioned, the principle of legality, in the sense that a law existed
prior to the commission of a crime, does not apply to regulations governing procedure,
unless they have an impact on the classification of acts or omissions that at the time of
commission were not criminal pursuant to the applicable law or the imposition of a penalty
that is more serious than the one in place at the time of the commission of the crime. As
such, the Court will assess whether this occurs for purposes of this case.
B.3 Application of the IPOHA in the case of Liakat Alibux
71. Below, the Court will assess whether the crimes for which Mr. Alibux was charged and
prosecuted were established by law, prior to the commission of the act in light of the
principle of legality, as well as the nature and scope of the regulations governing the
procedures for trial.
72. The Court notes that the prosecution of Mr. Liakat Alibux was carried out with respect
to the purchase of a property, purchased between June and July 2000. The IPOHA was
adopted for the purpose of implementing Article 140 of the Constitution (supra para. 36) on
October 18, 2001. While preliminary investigations were carried out by the police between
April and September 2001, it was not until January 28, 2002, that the Procurator formally
initiated criminal proceedings against Mr. Alibux (supra para. 41), once the IPOHA was in
force. Mr. Alibux was tried and sentenced for the crime of forgery on November 5, 2003 in
procedural laws. However, in said case, the European Court held that the applicable criminal procedure provision
affected the penalty, since it allowed a reduced sentence in cases where the accused agreed to abbreviated
procedure (from life imprisonment to 30 years imprisonment). It concluded that it involved a rule of substantive
criminal law to which the legality principle established in Article 7 of the ECHR should apply. Moreover, Cf. ECHR,
Del Río Prada V. Spain [GS], supra, para. 89. In the sense that the measures adopted by States (legislative,
administrative or judicial) after the final sentence has been imposed or while the sentence is being served can be
also included in the scope of the prohibition of the retroactive application of the penalties, if and when they result
in an ex post facto redefinition or modification as to the scope of the penalty imposed by the trial court that
rendered the sentence.
85
Cf. Collegiate Circuit Tribunal, México. THESIS V. 1º. J/14. Judicial Seminary of the Federation, Tome IX,
January 1992, Eigth, p. 111, Jurisprudence (Penal). RETROACTIVITY, INADMISSABLE APPLICATION, DEALING IN
REGARD TO REFORMS TO THE FEDERAL CRIMINA PROCEDURE CODE. (IN FORCE AS OF THE FIRST OF FEBRUARY
NINTEEN
NINETY
ONE),
available
at:
http://sjf.scjn.gob.mx/sjfsist/Paginas/DetalleGeneralV2.aspx?ID=220701&Clase=DetalleTesisBL; Supreme Court of
Justice of the Nation, México. TÉSIS VI.2º J/140 Judicial Seminary of the Federation and its Gazette: Tome VIII,
July 1998, Ninth, p. 308, Jurisprudence (Penal). RETROACTIVY OF PROCEDURAL LAWS. DO NOT EXIST FOR
GENERAL
RULE,
available
at:
http://sjf.scjn.gob.mx/sjfsist/Paginas/DetalleGeneralV2.aspx?ID=195906&Clase=DetalleTesisBL