Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement The Commission added, furthermore, that “unfortunately” it could not be totally confident that no person or newspaper had as yet suffered under the retroactivity of Decree No. 43. In its view potential “prosecution is a serious threat” and “an unjust but un-enforced law undermines ... the sanctity in which the law should be held”. Consequently, Decree No. 43 violated article 7(2) of the African Charter.194 ***** The European Court has dealt with a number of varied cases under article 7(1). However, only the basic principles of the Court’s interpretation of this article can be dealt with here. To the European Court, article 7(1) not only prohibits “the retrospective application of the criminal law to an accused’s disadvantage” but also “embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege), as well as the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance, by analogy”.195 This important qualification implies that “an offence must be clearly defined in law”, a condition which is “satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable”.196 The Court has also held that, where new provisions of a Criminal Code had been applied to the advantage rather than the detriment of the accused person, article 7(1) of the Convention had not been violated.197 3.12 The principle of ne bis in idem, or prohibition of double jeopardy Article 14(7) of the International Covenant contains the prohibition of double jeopardy, or the principle of ne bis in idem, according to which “no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”. Article 8(4) of the American Convention guarantees this principle in the following words: “An accused person acquitted by a nonappealable judgement shall not be subjected to a new trial for the same cause” (emphasis added). Protocol No. 7 to the European Convention provides in its article 4(1) that “no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State”. However, according to article 4(2) of the Protocol, these provisions “shall not prevent the re-opening of the case ... if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which would affect the outcome of the case”. The principle of ne bis in idem is non-derogable under the European Convention (cf. art. 4(3) of Protocol No. 7). 194 Ibid., para. 60. 195 Eur. Court HR, Case of Kokkinakis v. Greece, judgment of 25 May 1993, Series A, No. 260-A, p. 22, para. 52. 196 Ibid., loc. cit. 197 Eur. Court HR, Case of G. v. France, judgment of 27 September 1995, Series A, No. 325-B, p. 38, paras. 24-26. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 297