Criminal Law: Sources, Principles, and Scope

Posted on Nov 15, 2024 in Law & Jurisprudence

Module 2: Sources of Criminal Law

September 7

This module explores the formal sources and materials of criminal law, focusing on the principle of legality. We will examine Article 19 of the Constitution, emphasizing the pro-defendant principle and the principle of limitation. Key references include Section 1 and Article 18 of the Penal Code, and Article 80 of the Criminal Code.

Direct Sources and the Principle of Legality

Ordinary Laws: Laws within the criminal code.

Special Laws: Laws outside the criminal code.

Irregular Laws: Laws enacted by de facto governments.

Blank Criminal Laws: Laws that lack self-sufficiency and refer to other norms of equal or lower rank.

Temporary Laws: Laws with a defined timeframe.

Transitional Laws: Laws contingent on a specific condition (e.g., a disaster).

Blank Criminal Laws: A Deeper Dive

Blank criminal laws are not self-sufficient and refer to other legal standards. White blank criminal laws refer to lower-level standards, while improper blank criminal laws refer to standards of equal or higher rank. Both types raise concerns regarding the principle of legality.

Benefits of Blank Criminal Laws
  • Adaptability to evolving social behaviors.
  • Protection of social goods (e.g., public health).
Risks of Blank Criminal Laws
  • Potential violation of legal certainty.
  • Uncertainty due to the need to consult multiple legal standards.
  • Challenges in dogmatic analysis.

This perspective favors white criminal laws, provided they maintain an essential core of nature and purpose.

Open Criminal Laws

Open criminal laws, as described by Luis Cousino Mac-Iver, lack specific conduct descriptions, requiring judges to complete the behavior. This can be arbitrary and violate the principle of legality. However, in some cases, such as Section 440, paragraph 2, and Section 473 of the Criminal Code, judicial interpretation is necessary. Negligent crimes (Articles 490 and 495) also exemplify open criminal statutes.

September 21: Interpretation of Criminal Law

This class addresses three key questions in criminal law interpretation:

  1. What happens when multiple rules apply to a case? (Apparent set of criminal laws)
  2. What happens when there’s a discrepancy between the enacted text and its interpretation? (Errors in criminal law)
  3. What happens when no applicable rule exists? (Analogy in criminal matters)

Competition of Crimes vs. Apparent Concurrence of Criminal Laws

Competition of crimes can involve multiple actions leading to multiple crimes (real contest, Article 74 of the Criminal Code) or a single action resulting in multiple offenses (ideal contest, Article 75). Special cases include ongoing crimes and mass crimes.

Apparent concurrence of criminal laws occurs when a behavior appears to fit multiple laws, but only one applies based on specific principles. For example, infanticide takes precedence over manslaughter when applicable.

Principles for Resolving Apparent Concurrence

  • Principle of Expertise: The specific law prevails over the general law.
  • Wasting Principle: The law addressing the most harmful behavior prevails.
  • Subsidiarity Principle: A specific law supersedes a general law in the penal code.
  • Top of Alternativity: A variant of the principle of consumption.

Errors of Law and Analogy

Errors in law are resolved by the Comptroller General. Analogy is prohibited as a formal source of criminal law but is permitted as an interpretative method favoring the defendant.

September 23: Areas of Effectiveness of Criminal Law

Temporal Scope

The principle of non-retroactivity applies, except when a new law benefits the defendant. Retroactivity is significant, applying to laws enacted after the act but before sentencing.

Spatial Scope

The territorial principle generally applies, with exceptions for extraterritoriality based on nationality or defensive principles.

Personal Scope

Criminal law applies equally to all inhabitants, including foreigners, with exceptions for individuals with diplomatic immunity or specific constitutional protections (e.g., members of parliament, Supreme Court judges).

Extradition

Extradition can be active (initiated by the country) or passive (requested by another country).

September 28: Temporal Scope of Criminal Law

Key aspects of the temporal scope include:

  1. General Principle of Non-Retroactivity (Article 19, No. 3 of the Constitution).
  2. Exception: Retroactivity (pro-defendant principle).
  3. Intermediate Criminal Law (enacted after the act but repealed before sentencing).
  4. Temporal Criminal Law (applies for a specific period or circumstance).
  5. Milder Criminal Law (mandatory application by the judge).
  6. Retroactivity and Ultra-Activity.

Scope of Law as to Territory

  1. General Principle: Territoriality.
  2. Exception: Extraterritoriality.
  3. Special Case: Extradition.