Principles of Criminal Law and Legal Interpretation
Principles of Criminal Law
From Aristotle to Kant, humans are considered sociable beings interacting within society. The state’s power to punish must be exercised within legal and fundamental rights, preventing a police state and protecting individual liberty.
The rule of law requires punitive power to be subject to legal boundaries and principles. Individuals are protected by criminal law, which prevents crime and limits punitive authority.
Sources of Principles:
Nationwide Routes
A) Constitutional Guarantees: Modern states make decisions through their constitutions, explicitly guaranteeing rights (e.g., Article 19, No. 3, paragraph 8 of the Constitution prohibits assuming criminal responsibility).
B) Fundamental Values: These emanate from the constitution, such as freedom and equality (reflected in Article 5, paragraph 2).
International Pathways
I) International Law: The sovereign state’s consolidation enables an international community with laws embodied in organizations, treaties, and customs, setting criteria and limits for punishment.
II) Constitutional and International Standards: Article 5, paragraph 2 includes international standards promoting security and fundamental rights.
III) Legislative Function: The legislature must consider international law criteria when creating criminal acts.
IV) Fundamental Values: These arise from international treaties.
Analysis of Specific Principles
1. Principle of Legality
Nullum crimen, nulla poena sine lege prior – No crime, no punishment without prior law.
Laws are the only source of criminal offenses and penalties, excluding non-written sources. Laws must be strict, prohibiting analogy, ensuring non-retroactivity, and providing certainty.
A) Lex Scripta Warranty: Requires written law, negating mediate sources like doctrine and case law.
B) Criminal Guarantee: Penalties must be set by law for intended punishable acts.
C) Judicial Guarantee: Crimes and sentences must be determined by a court with a legal procedure.
Requirements of Criminal Standards
I) Lex Scripta: Recognizes law as the only formal source.
II) Lex Stricta: Requires precision, rejecting analogy.
III) Lex Certa: Requires clear, precise conduct descriptions.
IV) After Lex: Prohibits retroactive criminal law unless it favors the citizen.
2. Principle of Subsidiarity (Last Ratio)
Criminal law is used when informal (education, religion) or formal (other legal branches) means are insufficient. This minimizes criminal types and focuses on behaviors affecting legal rights.
3. Principle of Harmfulness
Criminal law activates only when a legal right is breached or at risk, ensuring social harmony.
4. Principle of Criminal Law and Copyright Acts
Criminal law is punitive, requiring an overt behavior described by law. It focuses on acts, not the author’s condition.
5. Principle of Culpability
Criminal responsibility requires the act to be attributable to a person subjectively, considering accountability, awareness of illegality, and freedom of action.
6. Principle of Proportionality
The offense’s seriousness must match the punishment’s severity, considering social significance.
7. Principle of Humanity of Sorrows
This principle limits punishment, advocating for humanization of criminal law, including abolishing the death penalty and degrading punishments.
Chapter One: Theory of Criminal Law
A) Direct Sources (Formal)
The primary source is law, adhering to legality principles. Decrees with the force of law must comply with constitutional rules.
B) Indirect Sources
I) Tradition: Generally not a direct source, except in specific cases like Indian legislation.
II) Doctrine: Reasoned opinions of authors, not a formal source but can have indirect value.
III) Court: Previous judgments, providing interpretation criteria.
IV) Lower Ranking Law: Subordinate legal rules are generally not sources, except in specific cases like prison regulations.
V) International Treaties: Can establish offenses if they meet domestic law requirements.
VI) Criminal Law White: Where criminal law doesn’t fully describe the prohibited area, relying on other provisions.
Interpretation of Criminal Law
Interpretation determines the meaning and scope of the law in a particular case.
Sources of Interpretation
1) Authentic Interpretation: Made by the legislature through law.
2) Judicial Interpretation: Made by courts in specific cases.
3) Doctrinal Interpretation: Made by legal scholars, not binding but influential.
Rules of Interpretation
Apply civil code rules (Articles 19-24) to criminal matters.
Elements of Performance
I) Grammar: Considers the expressions used by the legislature.