Alinea 147 Parket bij de Hoge Raad 29 september 2020

93. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain (ibid.). The progressive development of criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition in the Convention States (…). Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (…). The lack of an accessible and reasonably foreseeable judicial interpretation can even lead to a finding of a violation of the accused’s Article 7 rights (…). Were that not the case, the object and the purpose of this provision – namely that no one should be subjected to arbitrary prosecution, conviction or punishment – would be defeated.’

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