Sources & Interpretation of Criminal Law
Sources of Criminal Law
Direct and Indirect Sources
It is crucial to distinguish between primary sources (directly creating rights) and indirect sources (referenced through another rule).
The Law
As the sole direct source creating criminal matters, law is mandated by the rule of law. Only law can define crimes, offenses, penalties, and security measures. Law provides a general, systematic framework. In criminal cases, the prevailing view is that laws concerning crimes, misdemeanors, penalties, and security measures, especially those affecting fundamental rights, should be regulated by organic law. This perspective emphasizes the impact on human dignity and freedom. A minority view differentiates between fundamental rights allocations, suggesting that only those affecting fundamental rights require organic law (e.g., imprisonment), while others can be addressed by formal or common law. Nearly all pre-Constitution laws enacted by decree have been repealed or replaced. Today, a subject involving crimes, offenses, penalties, or security measures can never be regulated by decree, regulation, or lower-ranking provision.
Custom
Custom never directly creates crimes, offenses, penalties, or security measures. It acts as an indirect source (“in bonam partem”) only when needed to complete a criminal norm’s meaning, primarily within grounds of justification (Article 20.7 on exclusion of liability). Unlike civil law, non-use of a criminal law does not repeal it.
General Principles of Law
These principles don’t directly create crimes, offenses, penalties, or security measures. At most, they indirectly justify violating a rule to avoid penalties for legitimately exercising a right.
International Treaties
While approved by law, Spain doesn’t accept the creation of crimes, misdemeanors, sentences, or security measures directly through international treaties. A law incorporating the treaty’s substance must be enacted following the treaty’s publication.
Jurisprudence of the Constitutional Court
When referring to lower court judgments, the term is Jurisprudence. Decisions, more strictly, refers to Supreme Court (Second Chamber) judgments, being the final court of appeal for appeals. The Court supplements, not establishes, sources of law. In criminal law, jurisprudence is never a direct or indirect source but aids in understanding laws. The Supreme Court sets criteria for interpreting criminal statutes. “Full non-judicial” meetings have become common to clarify interpretation issues arising from regular law. Influential court decisions sometimes precede new laws (e.g., continuing offense, mass offense), with concepts and institutions originating from judicial interpretation later codified into law to avoid illegality.
Interpretation of Criminal Law
Judges apply subjective criteria when interpreting and applying law to specific cases, evaluating potentially unclear wording. Various interpretation criteria exist.
According to the Person or Source
- Legislation true: When the legislator defines terms within the rule itself, this interpretation is binding.
- Doctrinal interpretation: Interpretation by a legal scholar; never binding.
- Jurisprudential interpretation: Interpretation through court precedents; never binding.
According to the Conclusions Reached
- Grammar: Aligning the law’s wording with its spirit (Civil Code). Linked to declarative interpretation.
- Historic: Considering the law’s evolution for application and interpretation.
- Teleological: Determining meaning and scope based on the law’s objective (e.g., punishing specific behaviors).
- Logical-consistent: Discovering meaning through an assessment derived from the article’s concept, considering its context and relation to other provisions. Relevant in complex crimes (e.g., robbery with homicide), where the application of aggravating/mitigating circumstances specific to each crime type is considered.
According to the Results
- Declarative: Perfect correspondence between legislative intent and the law’s text. Linked to grammatical interpretation.
- Restrictive: When the law’s wording exceeds legislative intent, requiring a strict interpretation excluding other possibilities.
- Extensible: When the law’s wording falls short of legislative intent, requiring a broader interpretation beyond the literal meaning. Distinct from analogy, which addresses loopholes by applying existing provisions to similar but unregulated situations. Broad interpretation is preferred over analogy in criminal law.
The Principle “In Dubio” or Pro Reo
This procedural principle, related to the presumption of innocence (Article 24.2 of the Constitution), applies throughout criminal proceedings. It dictates that if, after hearings and evidence, the accused’s actions aren’t proven, they cannot be condemned (Articles 142.2 and 741 of the Criminal Procedure Act). Article 741 grants judges the power to evaluate evidence. The principle of alternative determination (forbidden in our system) allows judges to apply a milder punishment when unsure of the specific perpetrator but certain a crime occurred.