1 Introduction

In the early modern period, a number of European statutes authorised courts to penalise acts that were not criminal at the time of their commission.Footnote 1 For instance, the 1499 Tiroler Malefizordnung declared ‘in cases which were not recorded [in this statute] judges shall […] deliver a judgment and determine a punishment according to their best knowledge and taking into account the character of each offence’.Footnote 2

As various scholars indicate,Footnote 3 judges often exercised this authority arbitrarily. Some criminal codes of that time, including Bambergensis (1507), Brandenburgensis (1516) and the Constitutio Criminalis Carolina (1532), introduced a specific procedure to prevent such power abuse. Upon encountering a harmful act not specified by criminal law, judges were obliged to stay the proceedings and submit such cases to a legislative body, requesting appropriate solutions in the form of new legal rules (according to which the cases would subsequently be resolved by the courts).Footnote 4 Nevertheless, this procedure was regularly ignored and so failed to accomplish its originally intended effect.Footnote 5

In the eightieth century, one could still find laws authorising courts to punish acts not criminalised by the state. These were, for example, the 1721 Prussian Code, the 1751 Bavarian Code and the 1769 Constitutio Criminalis Theresiana.Footnote 6 In particular, the last statute ensured that ‘cases not set forth in the Code should be decided according to the principles laid down in the Code’.Footnote 7

However, with the advent of the Age of Enlightenment, some prominent philosophers took a firm stand against the judiciary’s wide discretion; the names Charles-Louis de Montesquieu and Cesare Beccaria are often cited in this regard.Footnote 8 They saw the judiciary’s task as mere application of law and consequently advocated dramatic limitation of the courts’ competence and powers. By such means, de Montesquieu and Beccaria desired to guarantee civil liberties for individuals and protect them from judges’ despotism. Soon these ideas found their way into legislative acts. In 1787, the Holy Roman Emperor Joseph II influenced by the Enlightenment’s progressive principles,Footnote 9 enacted the Penal Code of Austria. Its Part I Sect. 1 states: ‘Only those illegal acts are to be considered and treated as crimes which have been declared to be such by the present law’.Footnote 10

It is generally acceptedFootnote 11 that this statute was first to adopt the principle later expressed by Anselm Feuerbach in the famous Latin formula nulla poena sine lege.Footnote 12 Considered the ‘first protest of the emerging Rechtsstaat against arbitrariness of judges’,Footnote 13 the principle quickly gained wide recognition across Europe. It was incorporated into the 1789 Declaration of Human and Civil Rights (Art. 7 and 8),Footnote 14 the 1794 Prussian Law (Title 20, Part II, Sect. 2),Footnote 15 the 1810 French Criminal Code (Art. 10),Footnote 16 the 1813 Bavarian Penal Code (Art. 1),Footnote 17 the 1851 Prussian Penal CodeFootnote 18 and the 1871 German Penal Code (Sect. 2, Part 1).Footnote 19

Despite these facts, punishment for non-criminal acts did not, in the words of Eugen Ehrlich, ‘cease to exist in legal practice’.Footnote 20 This opinion was also subscribed to by Iosif Anosov, who observed that

If we look at practice, we will see, as one would expect, that this maxim [nulla poena sine lege], this axiom of the modern criminal law, was violated when it was (or appeared to be) favorable or necessary. The idea that not all crimes are listed in criminal codes governs the practice.Footnote 21

A well-known case demonstrating the breach of the legally binding principle nulla poena sine lege concerns unauthorised appropriation of electricity. At first, this appropriation was not prohibited by ninetieth-century criminal codes. The reason is quite simple: legislators were unable to foresee ninetieth-century scientific inventions that allowed people to generate electricity and transmit it through power lines.

In spite of the absence of norms criminalising unauthorised appropriation of electricity, judges in the NetherlandsFootnote 22 and FranceFootnote 23 meted out punishment for this act. The same approach was adopted by courts in Bavaria. On 15 January 1895, the Higher Regional Court Munich reached a guilty verdict on this matter.Footnote 24 However, on 1 May 1899, the Supreme Court of the German Reich maintained that ‘the unauthorized tapping of an electric power line did not constitute theft’.Footnote 25 A similar method of dealing with unauthorised appropriation of electricity was also employed in Switzerland.Footnote 26

Such strict compliance with nulla poena sine lege was not characteristic of courts in the Russian Empire. Even though the maxim was embodied in the 1864 Statute of Criminal Procedure,Footnote 27 the Governing Senate (the Supreme Court of the Russian Empire) ruled in 1868 that ‘an act, though not prohibited by any article of the law, can be punished if the acceptance of this act may lead to serious abuse’.Footnote 28

In particular, this argument was applied to blackmail, of which ninetieth-century Russian criminal law made no mention at all. As Petr Pustoroslev remarks, judges, finding ‘some similarities between blackmail and fraud, extended norms of criminal law regarding the latter to the former, thereby […] transforming blackmail into a criminal act’.Footnote 29

With the establishment of the Russian Soviet Federative Socialist Republic (RSFSR) and later of the USSR, the principle of nulla poena sine lege was eliminated from criminal law. Article 6 of the 1922 Criminal Code of the RSFSR defines crime as ‘any socially dangerous conduct or omission posing a threat to underlying principles of the Soviet state and legal order established by the power of industrial workers and peasants for the transitional period to the communist order’.Footnote 30

This ‘material definition’ of crime corresponds to punishment by analogy, permitted by the same code. Its Article 10 declares ‘when there are no direct references to particular crimes in the Criminal Code, penalties or means of social defense shall be applied according to the provisions of the Criminal Code dealing with crimes which are the most similar in their importance and their kind [to crimes to which the Code gives no direct references], in compliance with the rules of the general part of the Code’.Footnote 31

This rule was repeated with slightly different wording in Article 16 of the 1926 Criminal Code of the RSFSRFootnote 32 and received widespread application. For example, in 1939, a group of scholars determined that in 20 months, the courts of the Moscow region and the Moscow City Court had applied 53 provisions of this Code in accordance with Article 16.Footnote 33 Scholars condemned this practice as ‘dangerous and politically harmful’.Footnote 34 Another team of researchers observed that application of Article 16 was ‘occasionally coupled with the outrageous perversion of socialist criminal law’.Footnote 35 For instance, in 1934, the Supreme Court of the RSFSR ruled that ‘the reckless use of fire which led to the destruction of the property belonging to the collective farm is a socially dangerous action and shall be punished in accordance with Articles 16 and 79 [of the 1926 Criminal Code of the RSFSR]’.Footnote 36 Mikhail Shargorodsky criticised this decision and pointed out that ‘Article 79 deals only with deliberate destruction of property and in no way can be extended [by analogy] to reckless acts’.Footnote 37

In 1958, nulla poena sine lege found a place in Article 7 of the 1958 Basic Principles of the Criminal Legislature of the USSR and Union Republics.Footnote 38 However, Soviet judges did not fully comply with it. As Mikhail Kaufman maintains, analogy ‘was relatively widely applied during all 36 years of its existence in Soviet criminal law. It did not cease to exist in practice after its formal repeal, gaining new forms which ably camouflaged its application’.Footnote 39 For example, joyriding, the act of driving around in somebody else’s car just for enjoyment and without the owner’s consent, was first criminalised in the RSFSR in 1965. Until then, individuals who committed this act were criminally punished as hooligans.Footnote 40 This practice was condemned by Plekhan Dagel as ‘an unlawful application of analogy […] made under the guise of legal interpretation’.Footnote 41 Ivo Lapenna also noted that ‘the abolition of analogy, although salutary in principle, may not have such significant consequences’.Footnote 42 He argued:

Political offences—and also some others—are so widely defined [in the 1960 Criminal Code of the RSFSR], that these definitions provide a very elastic framework for the covering of all acts which are, or can be considered to be, dangerous for the regime.Footnote 43

In the twentieth century, the Soviet Union was not the only country where nulla poena sine lege was abolished and then reintroduced into criminal law. On 28 June 1935, Article 2 of the 1871 German Penal Code was amended to permit judges to impose penalty for acts not deemed to be punishable. It was reworded as ‘whoever commits an action which the law declares to be punishable or which is deserving of punishment according to the fundamental idea of a penal law and the sound perception of the people, shall be punished. If no determinate penal law is directly applicable to the action, it shall be punished according to the law, the basic idea of which fits it best’.Footnote 44

Nevertheless, during the Third Reich, judges rarely determined punishment for an action mentioned in the quoted article’s last sentence.Footnote 45 This is probably because ‘legislation could be enacted with lightning speed since the Fuehrer had unlimited legislative power’.Footnote 46 In addition, ‘from the beginning those who were considered of real danger to the regime were dealt with by methods other than the criminal law’.Footnote 47

After the end of the Second World War, the amendment of 28 June 1935 was promptly abolished.Footnote 48 Later nulla poena sine lege was enshrined in Article 103 Sect. 2 of the Basic Law for the Federal Republic of Germany,Footnote 49 which provides that ‘an act may be punished only if it was defined by a law as a criminal offence before the act was committed’.

However, German courts occasionally ignored the principle.Footnote 50 Having described some of these cases, Stefan Vogenauer recognised that ‘most of the judgments […] explicitly or implicitly violating the prohibition of analogy were delivered between 1925 and 1979’.Footnote 51

Historical analysis of nulla poena sine lege in continental criminal law presents two approaches towards this principle: it can be accepted or denied by the sovereign power. These two approaches are based on different theoretical concepts that—according to Peter Danckert—were thoroughly discussed when drafting the 1851 Prussian Penal Code.Footnote 52 Scholars advocating the inviolability of nulla poena sine lege stress the utmost significance of personal freedom that can be conceived as ‘an opportunity to do everything which is not prohibited by the law’.Footnote 53 The principle’s importance was expressed by Vladimir Spasovich in the following manner:

Harm caused by a villainy committed with impunity as it was omitted in the law cannot be compared with terrible damage produced by the punishment which lacks any legitimate grounds and with the restriction of personal freedom resulting from it.Footnote 54

On the other hand, scholars who defend the opposite approach assert that rigid adherence to the legally binding principle nulla poena sine lege may do more harm than good. Some argue that this principle prohibits judges from punishing non-criminal acts detrimental to society, making it impossible to deter them in a timely manner.Footnote 55

In the context of these approaches, one can establish two contradictory interests: the need to safeguard personal freedom and the need to combat lawful, yet socially harmful, acts through judicial punishment. In spite of their contradictory character, normal functioning of the state requires that neither interest can be completely ignored.

Indeed, strict observance of nulla poena sine lege, potentially resulting in failure to prevent the commission of non-criminal, yet harmful, acts, may pose a serious threat to the state. Consequently, Rudolf Jhering proposed the following course of action, which he considered one of the most important imperatives addressed to governmental bodies:

Law exists for the sake of society, not society for the sake of law. Hence, it follows that when in cases […] the relations are such that the government finds itself facing the alternatives of sacrificing either the law or society, it is not merely empowered, but in duty bound, to sacrifice law and save society. For higher than the law which it violates stands the consideration for the preservation of society, in the service of which all laws must stand.Footnote 56

Similar ideas were formulated by John Locke, who argued that

Where the legislative and executive power are in distinct hands […] there the good of the society requires, that several things should be left to the discretion of him that has the executive power: for the legislators not being able to foresee, and provide by laws, for all that may be useful to the community, the executor of the laws having the power in his hands, has by the common law of nature a right to make use of it for the good of the society, in many cases, where the municipal law has given no direction […] it is fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz. That as much as may be all the members of the society are to be preserved: for since many accidents may happen, wherein a strict and rigid observation of the laws may do harm […]. This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative.Footnote 57

The cited arguments of Locke and Jhering raise a question: in which cases should judges violate the legally binding principle of nulla poena sine lege and impose penalties for acts not expressly declared criminal? The answer requires the weighing of community benefit due to the acts’ prompt prevention against harm inflicted by the breach of nulla poena sine lege. If the former outweighs the latter, punishment should be deemed permissible. In the opposite case, judge should acquit defendants.

This approach requires accurate determination of positive and negative effects caused by the violation of nulla poena sine lege. Future research would help devise methods for conducting this assessment. So far, it should be noted that harm caused by violation of nulla poena sine lege leads not only to suppression of personal freedom but also involves the risk that citizens of a given state may follow the example set by judges who do not observe strict adherence to law. As Roscoe Pound asserted, ‘If the courts do not respect the law, who will?’Footnote 58

Therefore, concealing judicial violation of the legally binding principle nulla poena sine lege is necessary. This task can be accomplished through creative legal fiction. These are assumptions that conceal, or at least attempt to conceal, the fact that judges formulate and apply legal rulings under the guise of applying statutory rules to factual situations that cannot be logically subsumed under those rules.Footnote 59 In other words, creative legal fiction is used when a judge applies an existing legal rule to reach a guilty verdict concerning an act not covered by that rule. Breach of the principle nulla poena sine lege is thereby camouflaged behind a veil of legal application that gives an impression, albeit a false one, that a court has come to a legally justifiable decision.

In 1921, the Dutch Supreme Court used this approach in a case of unauthorised appropriation of electricity. At that time, the Dutch Penal Code prohibited theft in its Article 310: ‘He who takes away any property that belongs completely or partly to someone else, with the purpose of appropriating it illegally, will, being guilty of theft, be punished with imprisonment for a maximum of 4 years’.Footnote 60 This provision referred only to tangible objects, as it ‘dated from a time—1881—that no legislator had ever thought of the possibility of stealing something immaterial like energy’.Footnote 61 Nevertheless, the court held that electricity is similar to ‘tangible property’ and applied Article 310 of the Dutch Penal Code to arrive at a guilty verdict.Footnote 62

This study’s findings provide support for the following conclusion: a non-criminal act can be punished when community benefit due to prompt deterrence of this act outweighs harm inflicted by violation of the legally binding principle nulla poena sine lege. In this case, however, creative legal fiction should be employed to conceal the breach of legality.