The Icelandic so-called 'perfect analogy'

• Main Author: Rychlewska-Hotel, Aleksandra
• Format: Other/Unknown Material
• Language: English
• Published: 2013
• Subjects: Penal; Iceland
• Online Access: https://ruj.uj.edu.pl/xmlui/handle/item/50191; http://www.tbsp.wpia.uj.edu.pl/documents/4137545/7d44dfaa-4ac9-4dfb-bf72-6eb49faa60e7#page=58

Article 1 of the Penal Code of Iceland states that 'a person shall not be subjected to penalties unless found guilty of behaviour deemed punishable by Law, or totally analogous to such conduct'. The solution - analogia legis within the criminal law, in the light of nowadays European regulations should be called an exceptional one. Nevertheless, its ratio legis aims at the enhancement of the principle of citizens' equality under the law. There are two main principles of the Icelandic legal system - separation of the power and - as stressed - non-discrimination of citizens. The form of the principle of legality derives from a conflict between both of them. Therefore, the analogy -strictly 'perfect analogy', as that term should be used within the criminal law - applies to those situations where due to the principle of equality (and of coherence of the system), conducts of two persons, almost indistinguishable, should be adjudicated identically, even though the legislator has not decided so. Undoubtedly, court's action will violate the monopoly on lawmaking, however this practice is socially approved. Notwithstanding, due to the construction of Article 7 of the European Convention on Human Rights (praising the principle of legality) and to the criterion of predictability of law (raised by the Court in Strasbourg), Icelandic solution is not so obvious in breach of the European system.