The non-retroactivity of the law means that, as a general rule, the law is not applicable to events that occurred in the past; This is what jurists call the principle of non-retroactivity of the law. The essence of this principle implies that the effect of a law does not extend to include past matters and cannot judge events that occurred before its implementation.
A law is only applicable to events given after its entry into force. Therefore, the date of entry into force of a law is decisive to determine its applicability. The principle that people should not suffer the application of laws with retroactive effect is based on another principle: there is no crime or punishment unless it has been established in accordance with the law.
This principle was formulated initially in the Declaration of the Rights of Man of 1789, and later in the French Constitution of 1791.
It was a fundamental part of the Bavarian Code in 1813, when the philosopher Ludwig Feuerbach formulated the phrase nullum crimes sine lege, nulla poena sine lege. The principle was widely accepted in 19th century Europe.
What does it consist of?
The non-electroactivity of the law - logically linked to the principle of non-retroactivity - is a procedural rule that prohibits the courts from applying a subsequent law that had not been promulgated when the event that was the subject of the trial occurred. However, there are two exceptions to this rule:
-The first exception allows the retroactive application of a new rule, if said regulation positions a type of private conduct above the power of the State to proscribe.
-The second exception to this general principle is for the rules of criminal procedure that imply the fundamental impartiality and precision of the criminal process.
Legal provisions do not last forever. Instead, there is a specific period of time in which they will be applied, which is the period from the date of their entry into force to the date of their cancellation. These should not be annulled unless the public interest so requires.
The notion of non-retroactivity of the law has been established for public protection. However, there may be exceptions, such as when the new law is favorable to an accused individual.
In cases where the law establishes the nullification of the crime or mitigates the punishment, the accused would be interested in applying the law retroactively, despite the fact that their crimes had been committed in the past.
In Spain
The non-retroactivity of the law is very present in the Spanish legal system. Normally, each new regulation will establish whether it is retroactive or not.
However, if there is no such specific determination, it must be the person who interprets it, the court or judge who must decide, taking into account both the general principles of law and the principle of non-retroactivity. Article 9.3 of the Wspañola Constitution of 1978 says in this regard:
"The Constitution guarantees the principle of legality, the normative hierarchy, the publicity of the rules, the non-retroactivity of the unfavorable or restrictive sanctioning provisions of individual rights, legal security, responsibility and the interdiction of the arbitrariness of public powers".
Thus, the Spanish Constitution is constituted as the official guarantor of the principle of non-retroactivity in the Spanish legal system.
If regulations are elaborated that impose contrary sanctions or limit any right, their consequences will not be extended to events that occurred prior to their entry into force.
An exception is the regulation of individual rights, since these can be applied retroactively, recognizing new rights. Individual rights (fundamental rights) are understood to be those contained in Title I of the Spanish Constitution of 1978.
In Mexico
Article 14 of the Political Constitution of the Mexican States makes it very clear when it states the following: "No law will be given retroactive effect to the detriment of any person."
This means that, when legislation is changed through reforms or adding new elements, it cannot be applied to a person if it is going to harm or detract from rights already acquired by an act prior to the law.
The retroactive effect does occur in criminal law, when crimes are no longer punishable; For example, previously adultery was a crime and had a prison sentence.
With the new legislation applied retroactively, those who had been imprisoned under the old law benefited from the application of the new one.
The Mexican Supreme Court does not proclaim a precise criterion on non-retroactivity, but its jurisprudence is rather confusing. In the case of acquired rights, it accepts retroactivity in cases where public order or the general interest is affected.
Example
Mr. García has a company that has X number of employees and, given current legislation, he has to pay taxes according to the first tranche of the tax modules that apply to his business.
For years, Mr. Garcia has paid his taxes without delay or misstatement. This year legislation is drawn up and comes into force that modifies the ratios for the number of employees that make up each of the sections that define the tax modules.
Consequently, Mr. García's company goes up the tier and a different tax rate is applied to future taxes.
However, according to the non-retroactivity of the law, it is not possible to make claims for tax returns filed prior to the entry into force of the law.
References
- Alnoweises Law Firm. The principles of non-retroactivity of law. Alnoweises.com
- Cecs. The history of the principle of non-retroactivity. Users.cecs.anu.edu.au
- US Legal. Nonretroactivity Principle Law and Legal Definition. Definitions.uslegal.com
- João Grcmdino Weddings. The Doctrine of Non-Retroactivity of International Treaties. American Journal of International Law
- Online Legal Encyclopedia. Irretroactivity of the Law in Mexico. mexico.leyderecho.org