Core Principles of Criminal Law
Item 8: Core Principles of Criminal Law
Criminal law focuses on punishing *facts*, not thoughts (“nemo patitur poenam cogitationis”). Individuals are judged by their actions, not their lifestyle or beliefs. Preparatory acts are sometimes punishable, but mere thoughts are not. Totalitarian regimes may punish based on lifestyle or thought, but this is not the norm in most legal systems. Individuals are responsible for their own actions, not those of others; collective responsibility is not recognized. However, personal circumstances may be considered when determining sentencing.
Principle of Legal Protection
Criminal law aims to protect legal rights. The legislature selects which rights to protect and how to use penalties or security measures. Only socially harmful conduct that endangers or injures a legal right is punishable. This principle prohibits punishing moral or ethical values or socially innocuous conduct. However, there is a tendency to create rules that question the importance of legal rights and the need for criminal intervention.
Principle of Minimum Intervention
Criminal law is the ultima ratio, the last resort for protecting legal interests. This principle manifests in two ways:
- Subsidiarity: If a less burdensome method of protection exists, it should be used. Criminal law is only used when other measures are insufficient.
- Fragmentation: Criminal law only protects the most important legal rights from serious attacks.
Principle of Guilt
Guilt operates as a material limit and a dogmatic category in criminal law. It requires that individuals have the capacity to understand their actions and their consequences. The judge considers whether the conduct was intentional or reckless and the individual’s capacity (e.g., mental illness, influence of substances). Security measures based on hazard are an obstacle to this principle.
Principle of Proportionality
This principle requires a balance between the crime and the sentence. It is derived from the prohibition of inhuman and degrading treatment (Article 15 of the Constitution). The penalty should be proportionate to the harmfulness of the conduct, considering both inherent damage and external factors like social alarm. The Constitutional Court has ruled on this principle, emphasizing the need for a correlation between the severity of the sanction and the behavior.
Principle of Humanity of Penalty
This principle is recognized in the Constitution (Article 15) and the Universal Declaration of Human Rights (Article 12). It prohibits inhuman and degrading punishments, reflecting the humanization of criminal law. Prohibited punishments include inocuizadoras or exemplary penalties, the death penalty, corporal punishment (mutilation, castration, sterilization), forced labor, and excessively long sentences that destroy the personality. While the Constitution does not include penalties of more than 15 years, extensions are possible.