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RAIMO LAHTI
policy discourse should continuously be open to balancing different types of
legal, political and moral arguments.”
THE CONCEPTS OF THE RULE OF LAW AND LEGALITY
(NULLUM CRIMEN, NULLA POENA SINE LEGE)
Finnish scholar Eero Backman presented a paper on the concept of Rechtsstaat
and criminal law in Hungary in 1990". His distinctions and arguments are
clarifying from a Finnish view. As for the legality principle, Backman referred to
the doctoral thesis (1989) of Dan Frdnde’ on the subject and, in particular, to
the division of the legality principle in criminal law into the following four sub¬
clauses: a) the rule that only the law can define a crime and prescribe a penalty
(nullum crimen sine lege scripta); b) the rule that criminal law must not be applied
by analogy to the accused’s detriment; c) the prohibition of the retrospective
application of the criminal law to the accused’s disadvantage (nullum crimen sine
lege praevia); and d) the rule that a criminal offence must be clearly defined in the
law (nullurn crimen sine lege certa).” This kind of classification and definitions
of the main contents of the legality principle were not clearly recognized in the
Finnish doctrine so far, although they had been generally accepted inter alia in
the case-law of the European Court of HumanRights (ECtHR)“. For instance, in
the traditional leading Finnish text-book in criminal law it was not adopted the
rule b), according to which criminal law it is not permitted — without exceptions
— to apply analogy to the accused’s detriment.”
10 Lahti, The Rule of Law, 257-258. See also generally Ari Hirvonen, The Rule of Justice and
the Ethical Limits of Criminal Law, Acta Juridica Hungarica 37 (1995/1996), 221-230.
4 Eero Backman, Rechtsstaat und Strafrecht, in Raimo Lahti - Kimmo Nuotio (eds.), Towards
a Total reform of Finnish Criminal Law, Helsinki, University of Helsinki, 1990, 7-20.
See Dan Frände, Den straffrättsliga legalitetsprincipen, Helsinki, Ekenäs, 1989.
See now, in particular, Mikhel Timmerman, Legality in Europe. On the principle nullum
crimen, nulla poena sine lege in EU law and under the ECHR, Cambridge, Intersentia, 2018,
passim; as for the theory, see ch. 2. The forbid of analogy (supra point b) is expressed as the
prohibition of the overly extensive interpretation of offenses and penalties (lex stricta).
See Timmerman, Legality in Europe, ch. 3. See, typically, a case of the ECtHR: C. R. v.
United Kingdom, Judgment of 22 November 1995, Series A. no. 35S-C. In a later Case
of Huhtamaki v. Finland, Judgment of 6 March 2012 (Application no. 54468/09), ECtHR
confirmed the earlier reasoning: “The Court reiterates that Article 7 of the Convention
cannot be read as outlawing the gradual clarification of the rules of criminal liability
through judicial interpretation from case to case, provided that the resultant development
is consistent with the essence of the offence and could reasonably be foreseen” (para 51).
Brynolf Honkasalo, Suomen rikosoikeus. Yleiset opit I, Helsinki, Hameenlinna, Karisto,
1965, 43-51.
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