[DRAFT] Proscriptio proscriptionis

[Imperium Anglorum]

The World Assembly,

Concerned that the provisions GA 37 do not protect inhabitants of member nations from being punished or found guilty of crimes they were not charged with without any semblance of due process,

Believing that not permitting such actions implicitly condones state behaviours restricting the citizen freedom, contravenes the obligations of a society to its citizens, and impinges on the fundamental principle that those who should be punished with crimes are in fact those who have, on sober and truthful reflection, actually committed them,

With more preamble forthcoming, hereby:

1. Bars member nations from:

1. imposing any penalty upon or finding guilt of any person subject to their jurisdiction without a fair trial, as may be defined by this Assembly in past or future legislation, and
2. outlawing or penalising a specific person or class of persons for being descendants or antecedents of another, except where there exists a dependent relationship in which it can be established beyond a reasonable doubt that the person penalised exerts control over the actions of the person taking the action for which penalty was imposed;

2. Mandates that when member nations create penal laws, they shall:

1. do so in a manner which provides reasonable notice for the populace as a whole to avoid or adjust to now-prohibited actions and
2. only penalise acts or omissions rather than states of being;

3. Prohibits member nations from imposing any punishment on any person not subject to their jurisdiction.

[Imperium Anglorum]

Reserved.

[Kenmoria]

“Category and strength? Other than that, this looks good, though I seem to remember the gist of clause 2 being covered by another piece of legislation.”

[Doing it Rightland]

Interesting proposal. My only thing is that "Bars member nations from imposing any punishment upon or finding guilt of any person subject to their jurisdiction without a fair trial" might be duplicating the following line from GA#37:

MANDATES that all persons charged with criminal offences in the jurisdictions of member nations shall be brought to trial with such reasonable speed as is consistent with both prosecution and defence properly assembling available relevant evidence;

I feel like your stating that member nations can't find guilt without a trial, and the fact that anyone charged with a crime has to have a trial, makes the part in bold redundant if not a duplication of sorts. I'm not fully sure if this is the case, nor do I know if that may actually cause any issues with the proposal. Just something to consider.

[Wallenburg]

How is this not covered by Fairness in Criminal Trials?

[Imperium Anglorum]

A person found guilty by attainder is not charged of a crime. Also, this argument was made repeatedly in previous attempts against attainder.

[Wallenburg]

A person found guilty by attainder is not charged of a crime. Also, this argument was made repeatedly in previous attempts against attainder.

Yes, they are. https://www.law.cornell.edu/wex/bill_of_attainder

[Separatist Peoples]

A person found guilty by attainder is not charged of a crime. Also, this argument was made repeatedly in previous attempts against attainder.

Yes, they are. https://www.law.cornell.edu/wex/bill_of_attainder

"Attainder defines guilt by legislative fiat, not guilt by trial, fair or otherwise. I don't think fairness in criminal trials addresses this."

[Wallenburg]

Yes, they are. https://www.law.cornell.edu/wex/bill_of_attainder

"Attainder defines guilt by legislative fiat, not guilt by trial, fair or otherwise. I don't think fairness in criminal trials addresses this."

It does here:

MANDATES that all persons charged with criminal offences in the jurisdictions of member nations shall be brought to trial with such reasonable speed as is consistent with both prosecution and defence properly assembling available relevant evidence;

A bill of attainder charges an individual with criminal offences without providing for a trial to determine guilt. Thus, it would contradict Fairness in Criminal Trials.

[Separatist Peoples]

"Attainder defines guilt by legislative fiat, not guilt by trial, fair or otherwise. I don't think fairness in criminal trials addresses this."

It does here:

MANDATES that all persons charged with criminal offences in the jurisdictions of member nations shall be brought to trial with such reasonable speed as is consistent with both prosecution and defence properly assembling available relevant evidence;

A bill of attainder charges an individual with criminal offences without providing for a trial to determine guilt. Thus, it would contradict Fairness in Criminal Trials.

"Hmm...I thought I recalled the term "court" being in that clause. Seems I am mistaken. Nonetheless, I believe there is room to legislate against attainder in the form of proscription, i.e., making it a crime to be one Lucius Sergius Catilina, and trying them for that crime. Which is at least how I view attainder. I suppose the author could consider such an issue."

[Wallenburg]

It does here:

MANDATES that all persons charged with criminal offences in the jurisdictions of member nations shall be brought to trial with such reasonable speed as is consistent with both prosecution and defence properly assembling available relevant evidence;

A bill of attainder charges an individual with criminal offences without providing for a trial to determine guilt. Thus, it would contradict Fairness in Criminal Trials.

"Hmm...I thought I recalled the term "court" being in that clause. Seems I am mistaken. Nonetheless, I believe there is room to legislate against attainder in the form of proscription, i.e., making it a crime to be one Lucius Sergius Catilina, and trying them for that crime. Which is at least how I view attainder. I suppose the author could consider such an issue."

Cataline and his soldiers were traitors to the Republic and they got better than what they deserved.

[Imperium Anglorum]

The real injustice was when the Triumvirs declared it illegal to be Marcus Tullius Cicero.

[Merni]

Concerned that the provisions GA 37 do not protect inhabitants of member nations from being punished or found guilty of crimes they were not charged with without any semblance of due process,

Believing that not permitting such actions implicitly condones state behaviours restricting the citizen freedom, contravenes the obligations of a society to its citizens, and impinges on the fundamental principle that those who should be punished with crimes are in fact those who have, on sober and truthful reflection, actually committed them,

There should be an "of" between "provisions" and "GA" in the first clause, and "citizen freedom" in the second clause should be changed to "freedom of citizens" or something similar.

[Bears Armed]

OOC
What about resolution # 323?

[Imperium Anglorum]

Bills of attainder are laws.

[Falcania]

My concern here is this specific definition in GAR37:

"DEFINES "criminal offences" as those prosecuted by the state or a state-appointed actor;"

I don't think this definition in the legislation is particularly clear; but there's an interpretation that attainder could be described as a criminal offence that's prosecuted by the state or a state-appointed actor under this definition.

[Wallenburg]

1. Bars member nations from ... penalising a specific person or class of persons that is not the state of having committed actions which violate the law,

We are to no longer penalize violations of the law? That's certainly how this reads.

[Bears Armed]

Bills of attainder are laws.

H'mm.
As they involve penalties, that makes them 'penal laws', yes?
In which case, what about:
GAR #79 'Ban on Ex Post Facto laws'

Defines, for the purposes of this resolution, an ex post facto law as a criminal or penal law that retroactively changes the legal consequences of acts or the legal status of facts and relationships that existed prior to the enactment of the law. This includes laws that criminalize acts which were legal when committed and laws which retroactively increase sentences for crimes already committed;

and

(II) No nation or governmental subdivision thereof shall enact any criminal or penal law with ex post facto provisions that criminalize an act or omission, or that increase sentencing or punishment. Any such ex post facto provisions in existing criminal laws shall be rendered null and void.

[Separatist Peoples]

Bills of attainder are laws.

H'mm.
As they involve penalties, that makes them 'penal laws', yes?
In which case, what about:
GAR #79 'Ban on Ex Post Facto laws'

Defines, for the purposes of this resolution, an ex post facto law as a criminal or penal law that retroactively changes the legal consequences of acts or the legal status of facts and relationships that existed prior to the enactment of the law. This includes laws that criminalize acts which were legal when committed and laws which retroactively increase sentences for crimes already committed;

and

(II) No nation or governmental subdivision thereof shall enact any criminal or penal law with ex post facto provisions that criminalize an act or omission, or that increase sentencing or punishment. Any such ex post facto provisions in existing criminal laws shall be rendered null and void.

"Attainder is not ex post facto. It makes being a certain person illegal, which is something that a victim is both before and after the law is passed."

[Bears Armed]

H'mm.
As they involve penalties, that makes them 'penal laws', yes?
In which case, what about:
GAR #79 'Ban on Ex Post Facto laws'

Defines, for the purposes of this resolution, an ex post facto law as a criminal or penal law that retroactively changes the legal consequences of acts or the legal status of facts and relationships that existed prior to the enactment of the law. This includes laws that criminalize acts which were legal when committed and laws which retroactively increase sentences for crimes already committed;

and

(II) No nation or governmental subdivision thereof shall enact any criminal or penal law with ex post facto provisions that criminalize an act or omission, or that increase sentencing or punishment. Any such ex post facto provisions in existing criminal laws shall be rendered null and void.

"Attainder is not ex post facto. It makes being a certain person illegal, which is something that a victim is both before and after the law is passed."

In which case, doesn't GAR #323

3. Requires member nations to ensure that all established international or statutory laws, judicial precedents, or guidelines with the force of law applicable under their jurisdiction are publicly promulgated when it is determined to be both practical and necessary in preventing their inhabitants from committing punishable actions;

mean that the law of attainder must be published with sufficient time for the subject to refrain from the punishable action by -- in this case -- changing their identity?

[Separatist Peoples]

"Attainder is not ex post facto. It makes being a certain person illegal, which is something that a victim is both before and after the law is passed."

In which case, doesn't GAR #323

3. Requires member nations to ensure that all established international or statutory laws, judicial precedents, or guidelines with the force of law applicable under their jurisdiction are publicly promulgated when it is determined to be both practical and necessary in preventing their inhabitants from committing punishable actions;

mean that the law of attainder must be published with sufficient time for the subject to refrain from the punishable action by -- in this case -- changing their identity?

"I'm not sure how that makes a difference. That still makes the state of being a person illegal, whether immediately or after a reasonable time."

[Falcania]

In which case, doesn't GAR #323

3. Requires member nations to ensure that all established international or statutory laws, judicial precedents, or guidelines with the force of law applicable under their jurisdiction are publicly promulgated when it is determined to be both practical and necessary in preventing their inhabitants from committing punishable actions;

mean that the law of attainder must be published with sufficient time for the subject to refrain from the punishable action by -- in this case -- changing their identity?

"I'm not sure how that makes a difference. That still makes the state of being a person illegal, whether immediately or after a reasonable time."

"As I understand it, it means that a nation would be in violation of GAR#323 sec 3 if they did not give a person whom would be the target of a bill of attainder a chance to not commit the punishable action - I don't think that's quite the same thing as a duplication of GAR#323 though, because I'm sure there's a loophole in 323 that this legislation could close."

[Araraukar]

OOC: Would "outlawing or penalising a specific person or class of persons for being descendants of or antecedents of another" prevent a parent or a guardian for having to pay a fine for whatever their child did that was against the law?

And also, does there always need to be a trial to be assigned a fine as punishment? Speeding tickets (which you get from breaking the law that says you need to drive within the speed limits), for example, are a thing that only go to a trial if you contest them.

[Desmosthenes and Burke]

OOC: I read English well enough to have been able to figure out what is meant by Bill of Attainder, in a general sense, but that term is amazingly specific solely to the Anglo Common Law, to the point where, as far as I can find, it is literally unable to translated into any major EU language and no reference to it in international law beyond references to the US Constitution and discussion of ex post facto. I cannot distinguish it from what I would call the principle of non-retro-activity, which is usually held as the equivalent of the ex-post factor prohibition or the principle that only courts impose punishment in a system of separated powers.

Do any of you who are better versed than I have the equivalent legal idea or prohibition in Civil Law or the ECHR, or some other instrument to clarify?

[Bears Armed]

OOC
Final question, for now.
How many WA member nations do you think are both (a) willing to use Acts of Attainder, as an alternative to criminal law (as limited by those other resolutions), and (b) “reasonable nations”?