The principle is not without its critics, but Morocco has institutionalized it for the long term.
Criminal texts, like other statutory legal texts, are characterized by their mandatory application and their ability to expire or amend. They must keep pace with the development of society, taking into account individual and collective interests. What the legislature considers permissible action now may enter into the circle of criminal acts with the issuance of a new law.
The legislator has the right to change their view of what is permissible or criminal in actions and words. Therefore, the individual must know about this restriction in order to protect their freedoms and rights and to live comfortably within the state of rights and law.
Among the most important and dangerous methods the political authority of any state exercises is the criminal aspect, mainly represented in the power to criminalize and punish. This affects the rights and freedoms of individuals.
The creation of Article 7
Jurists of the 18th century classic school of criminology summarized the principle of legality of crimes and punishment in the rule “nullum crimen, nulla poena sine lege,” which means no penalty without a law. This featured first as a rule in the French Declaration of the Rights of Man and Citizen.
The emergence of the principle of legality in criminal philosophy constituted a novelty in this branch of law, aiming to break down the arbitrary power of judges and personalize penalties.
Article 7 of the Declaration includes two explicit principles. Namely, a criminal conviction should be based only on a rule that was present at the time of the criminal act. A heavier penalty may not be imposed for the punishment than that prescribed at the time of the crime.
But Article 7 implicitly includes a third principle, defined by the European Court of Human Rights. The authority applying the criminal law should not interpret it broadly to the detriment of the defendant. They should ensure that only the law can define the crime and determine the punishment.
The principle of legality in Morocco
Recent years witnessed a significant development in Moroccan criminal policy, from the issuance of the Penal Procedure Code in 2002 to the revisions and modernization of the Criminal Code issued in 1962.
The principle of nulla poena sine lege remains a fundamental principle in all legal systems, including in Morocco, accompanied by the principle of “nullum crimen sine lege,” meaning no crime without law, to form what is known as the principle of legality.
The principle of legality is at the heart of the contemporary human rights system, as it has been recognized by both the internal legal systems of most countries as well as by international or regional human rights agreements.
What is the principle of legality?
The principle of the legality of crimes and punishment includes the unlawful character of the act derived from a legal text, also known as the text of incrimination. It specifies the conditions the act must meet in order for the defendant to be subject to incrimination through this text, to derive the unlawful character and determine the prescribed punishment.
This principle limits the authority of the judge to consider a specific act as a crime unless it is stipulated in a legal text prior to the commission of the act. It singles out the legislative authority to define crimes and penalties and obligates other institutions of authority, and individuals, to comply with these injunctions.
The principle of legality is considered the cornerstone of criminal legislation, as it protects conflicting interests.
On the one hand, it helps protect the individual’s interest by defining forbidden actions. It also protects the individual from the unchecked control of the legislator and the judge. The legislator only has the power of legislation that applies to the present. Therefore, every individual is aware of prohibitions, and the judge cannot punish people except for actions that the legislator described as crimes.
On the other hand, it aims to protect the interest of the community. The criminal texts contain various social values that must be respected, even by resorting to punishment if necessary. The existence of these texts guarantees respect for those values at the community level. Morocco adopted the principle and stipulated in its constitution and criminal law.
The implications of the principle of legality
The principle of legality, which clarifies the act constituting a crime and determines its punishment, requires that the rule be valid at the time and place the crime was committed.
Non-retroactivity of criminal law provisions
Among the effects of the principle of legality remain the principle of non-retroactivity of criminal law, stipulated in the Universal Declaration of Human Rights and the European Convention on Human Rights.
This principle was stated for the first time in Moroccan law with the 1996 Constitution in its fourth chapter, and the criminal legislator emphasized it in chapter four of the Criminal Code: “No one shall be held accountable for an act that was not a crime under the law that was in force at the time of its commission.” It is confirmed by the current constitution In Chapter 6: “… the law has no retroactive effect.”
The scope of application of the criminal text in terms of location
Determining the place covered by the application of the criminal text occurs by determining the location of the crime. The application of the criminal law in terms of location governs four basic principles adopted by all contemporary criminal systems. Namely, these include the principle of territoriality of the criminal text, the principle of the specificity of the criminal text, and the principle of universality of the criminal text.
The principle of legality: Not expanding the interpretation of criminal law
Among the elements and conditions for applying the principle of legality is that written legislation be the sole source in the field of criminalization and punishment. It stipulates the exclusion of other sources of law in the field of criminalization, such as custom, rules of justice, and principles of natural law. An important hall emerges with it, which is the lack of expansion in the interpretation of the criminal law.
The basis of this principle is the restriction of criminal texts of general origin. They must prohibit, restrict, and punish grave breaches, and must be protected by a narrow and precise interpretation. In order to consider allocating criminalization and punishment to the legislative authority, the text must be taken within the limits of the legislator’s intention. This does not allow for explanation that would lead to the introduction of a new crime or punishment. The prohibition of measurement is stipulated in the 1992 Paris International Criminal Conference.
A principle not without controversy, but seemingly here to stay
In spite of what the principle of the legality means for criminalization and punishment in terms of achieving justice and equality and upholding the status of the law, it was not spared from criticism.
Some considered it to strip the penal text of its flexibility in the face of the societal developments and changes, and the emergent criminal phenomena that cannot be anticipated in advance. This constitutes a legal loophole and stands as an obstacle in front of the judge, obliging them to apply the text without regard to the criminal’s personality or the criminal’s danger.
Despite these criticisms, the Moroccan legislator has recognized the principle of criminal legitimacy, similar to many other countries, and made it a constitutional principle that seeks to achieve balance between members of society and the state.