Lex mitior

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The principle of the lex mitior ( Latin for "[the] milder law") stipulates that a perpetrator - if the law has changed between the act and the judgment - must be tried according to the milder law.

origin

The background to this principle is the fact that the offender cannot know at what point in time he will be sentenced. From the point of view of the legislature, it also makes no sense to punish a delinquent according to a law that has since become obsolete when the conviction has evidently prevailed that the offense should be punished more leniently.

Legal situation in Germany

In German criminal law, the principle is laid down in Section 2 (3) StGB , which stipulates:

"If the law that applies when the offense is terminated is changed before the decision is made, the most lenient law shall apply."

In the regulatory offense law there is a parallel provision in Section 4 (3) OWiG :

"If the law that applies when the action is terminated is changed before the decision is made, the most lenient law shall apply."

Legal situation in Switzerland

The principle of the lex mitior is set out in the Swiss legal system in Art. 2 Para. 2 StGB :

"If the perpetrator has committed a crime or misdemeanor before this law came into force, but the assessment is made afterwards, then this law is to be applied if it is the milder one for him."

There are, however, various exceptions to this: In BGE 68 IV 36, for example, the Federal Supreme Court stated that the law at the time of the judgment always applies to measures . This is justified by the fact that measures can only be appropriate, but not strict or mild. So-called time laws, which are only issued for a certain period of time from the outset (e.g. a one-time driving ban on Sundays), must also be able to be applied later (e.g. when the Sunday in question has already passed) because otherwise it may not apply at all could come. "A law that came into force after the fact and was repealed before the assessment is not to be taken into account at all".

Legal situation in Italy

The principle of lex mitior is contained in the Constitution of the Italian Republic (Art. 25: Nobody may be deprived of their legal judge. An act can only be punished if the criminal liability was determined by law before the act was committed, except in those by law in the cases in which no one is deprived of their liberty), but it was developed by the courts.

Individual evidence

  1. ↑ a b Trechsel / Noll, Schweizerisches Strafrecht AT , 1998, p. 55.
  2. ↑ Trechsel / Noll, Swiss Criminal Law AT , 1998, p. 56.
  3. ↑ Giampiero Buonomo: Irretroattività della norma e penale redazione legislativa. November 2014, p. 61 , accessed November 30, 2015 (Italian).

bibliography

  • Stefan Trechsel / Peter Noll: Swiss Criminal Law General Part I , 5th edition, Schulthess, Zurich 1998, ISBN 3-7255-3789-5 .

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