The Right to Punish: Limits and Legality in Criminal Law
The Right to Punish (Ius Puniendi)
Historical Context
Historically, the State’s right to punish (ius puniendi) was often exercised with absolute power, leading to a lack of discretion and potential abuse. This traditional approach has evolved, raising questions about the nature of ius puniendi as a right or power, and the extent to which the State’s sovereignty allows for its exercise.
Two Manifestations of Ius Puniendi
The ius puniendi manifests in two ways: the ability to create laws and the ability to enforce them. The State’s subjective right to obedience from its citizens implies a right to impose punishment for disobedience. However, the extent of this power and its limitations remain key considerations.
Formal and Material Limits
Modern legal discourse focuses on the existence of formal and material limits on the State’s power to punish. Formal limits primarily concern the principle of legality during lawmaking, while material limits come into play during the judicial application of the law.
The Principle of Legality as a Formal Limit
Origin
The principle of legality originated in the English Magna Carta, aiming to limit state intervention and protect citizens’ rights through established law.
Formulation
The principle is often expressed as “nullum crimen nulla poena sine lege praevia” (no crime without a pre-existing law) or “nullum crimen nulla poena sine lege praevia et sine audition” (no crime without a pre-existing law and without a hearing). The first formulation is more commonly used.
Article 25 of the Spanish Constitution embodies this principle, guaranteeing that no one can be convicted for actions that were not considered crimes under the law at the time they were committed.
Manifestations
- Criminal Guarantee: This guarantee, expressed as “nullum crimen nulla poena sine lege praevia,” ensures that only offenses defined in the Criminal Code and criminal laws can be prosecuted.
- Penalty Guarantee: This guarantee ensures that penalties must also be pre-established by law. Individuals must be aware of both prohibited actions and their corresponding penalties to ensure compliance.
- Jurisdictional Guarantee: This guarantee mandates a final judgment issued by a judge after a fair hearing (due process) before imposing criminal penalties. This process ensures that sanctions are legally recognized and subject to appeal if necessary.
- Performance Guarantee: This guarantee stipulates that penalties can only be executed as prescribed by law. Judges are bound by the parties’ requests and the established legal procedures.
Judges and Prison Supervision
Judges overseeing prison systems ensure that sentences are carried out in accordance with the law. Violations of fundamental rights in prison can be subject to legal complaint by the affected prisoner.
Article 117.3 of the Spanish Constitution grants powers of sentence execution. These guarantees are fundamental to the rule of law in Europe and essential for a democratic state.
Rationale and Consequences
Feuerbach argued that prior knowledge of both the prohibition and the punishment is a logical consequence of the general preventive function of law. Individuals must be aware of the consequences of their actions to act in accordance with the law.
Consequences of the Criminal Guarantee
- Prohibition of Retroactivity: Criminal law cannot be applied retroactively, except when it benefits the accused.
- Prohibition of Custom as a Source of Criminal Law: While custom can be a source of law in civil matters, it cannot directly create crimes or penalties in the Spanish penal system. It can only serve as an indirect source, clarifying existing law, and always to the benefit of the defendant (in bonam partem).
- Prohibition of Analogy: The principle of lex stricta requires criminal law to be precise and explicit, prohibiting the use of analogy to expand its scope. The Constitutional Court has upheld this prohibition, particularly “in malam partem” (to the detriment of the accused).
- Exception to the Prohibition of Analogy: Analogy can be applied “in bonam partem” (to the benefit of the accused), as outlined in Article 21.6 of the Penal Code, in situations similar to those covered by Article 21.
- Mandate of Certainty or Principle of Limitation: Criminal law must be clearly defined and as precise as possible to guide judicial interpretation and avoid ambiguity.
Further Restrictions
- General Clauses: While not strictly prohibited, the use of general clauses in criminal law is discouraged.
- Open Types: These are legal definitions where part of the prohibition is defined in the Penal Code, and the rest is left to judicial interpretation, which can create ambiguity.
- Crimes of Omission: Punishing failures to act with the same penalty as active offenses requires careful consideration.
- Reckless Crimes: While the Penal Code primarily addresses intentional crimes, it also punishes reckless conduct, requiring an assessment of negligence versus accident.