Criminal Law and the Principle of Legality
Introduction
How does subjective criminal law affect? Are there more limiting principles of the IUS PUNCENDI? Justify your answer. Latino aphorism "nullum crime, nulla poea sine lege praevia, Certa et scripta" means that there is no crime or penalty without a prior, certain and written law, that is, that only through the law the crimes and sorrows can be established. The principle of legality is composed of three demands that constitute the basic guarantees for the citizen: there must be a prior law to be able to sanction, that is, the crime that is committed must be defined by a law prior to its perpetration. From this guarantee the principle of irretroactivity is deduced.
Developing
There must be a written law, that is, only through a formal law (organic, because it limits fundamental rights) crimes and penalties can be established. There must be a certain law, which is defined clearly and precisely, and that does not leave a doubt or interpretations. The manner in which he affects the subjective law is that the State has the power to create and apply the criminal norms, that is, that the State indicates to the legislator as it has to act and the judge how to punish certain behaviors. Yes there are more limiting principles of the ius putingi which are:
Principle of legal good, which protects legal assets (values or interests that are fundamental to social coexistence). Minimum intervention principle, this means that the aspiration of criminal law is to intervene as much as possible and guarantee the maximum freedom. Proportionality principle, that is, the penalty or sanction established in a crime is proportional to the nature and severity of this. Principle of guilt, that is, to sanction or impose a penalty on someone, it is not enough to perform the punishable act, but also has to be guilty.
Principle of subjective responsibility, this means that in order to impose the sanction, the mere material cause of the damage is not enough, but so that there is a subjective responsibility by the author in collision with the criminal act, there must be fraud or imprudence. Personality principle of penalty, that is, penalties are imposed on subjects who keep a relationship of authorship or participation, the penalty is personal. Principle of the fact, criminal law can only intervene in front of facts, not authors. Principle ne bis in idem, from the point of view of material aspect.
Indicates that there cannot be a double sanction for the same facts provided there is a triple identity (subject, fact and foundation). On the other hand, from the procedural aspect prevents judging the same subject twice for the same fact. Principle of humanity of penalties, that is, there is a tendency to humanization of penalties, that is, the prohibition of torture and inhuman treatment is established. Resocialization principle, determines that all sanctions or penalties must be executed so that they avoid the marginalization of the convicted and facilitate their reinstatement to life in freedom.
All these limiting principles exist, since they put limits to the State to punish criminal behaviors, and be just according to the nature of the criminal act. Thanks to these principles, citizens’ rights are guaranteed. Try to respond reasonably the following assumptions, justifying your answers. Antonio m., Sixty years old, he suffered a degenerative and incurable disease, which had him totally paralyzed and produced intense physical conditions. In full use of his faculties he repeatedly asked Luis to help him die, to which he initially refused.
Such was Antonio’s insistence that in the end Luis agreed to inject a substance that caused death without pain within a few minutes. Luis was not Antonio’s natural or adoptive son, but he had been raised by this since child. Luis was sentenced in the first instance as a criminally responsible author of the crime typified in the art. 143.4 CP. The conviction appealed arguing that the modifying circumstance of kinship should have been applied (Art. 23 CP), in response to the existing relationship with the deceased, which in this case would play as a mitigating.
The Court of First Instance had considered the mitigator inapplicable arguing that the application does not fit. What makes Luis’s request into a problem? Is there an analog relationship between Luis’s situation and the one planned in art. 23 CP? What converts Luis’s request into a problem is that he does not keep any kinship relationship with Antonio, so that is why the art is applied. 143.4. Of the CP in the first instance and does not admit the art as mitigating. 23 of the CP, since so that this could be admitted, it would have to talk about descendant, and in this case Luis is not.
After analyzing article 23 of the Criminal Code, I conclude that there is an analogous relationship, since as the text “Luis was not Antonio’s natural or adoptive son, but he had been raised by this since childsubsidiary". We can see that in this case there are the same reasons to mitigate the penalty as if it were his son, since Luis in maintainThe relationship that unites them and agrees to cooperate for the affection that it has, which would not have happened the same if it was a stranger.
What are the reasons that support the prohibition of an analogy in malam partem? Are these same reasons valid to deny the possibility of analogy in bonam partem? The analogy consists in applying a norm extracted from the law or of the legal system as a whole to a case not regulated by law, but that is similar to another that is regulated. Its purpose is to solve legal lagoons and in our criminal law it is strictly prohibited (principle of legality), this is established by the art. 4.1. of the CP. In the case of analogy, a partem (analogy contrary to the inmate) the reasons for the prohibition of this.
It is that in order for a behavior to be punished for a norm in which this is produced, and that it says that this behavior is prohibited. In the case of an analogy in Bonam Partm (analogy in favor of the inmate), those same reasons are not valid, since if a judge applies an analogous norm in favor of the inmate, the legal certainty of this is not harmed, but this has thisto be seen in an exceptional way, since it creates causes of justification, causes of exculpation and mitigating. However, this type of analogy is not to create absolute excuses.
Is there any general forecast in the CP on the issue of in Bonam Partm analogy? Yes Article 4.3. of the CP establishes that the analogy of any kind is prohibited, does not distinguish between favorable or unfavorable analogy. Is there any specific forecast on analogy in the modifying circumstances of criminal responsibility (consult art. 21, 22 and 23 CP)? Yes, the legislator has admitted expressly applying the mitigating circumstances that occur in the art. twenty-one.7 of the CP. What modifying circumstance of criminal responsibility asks Luis to apply? Would you know how to explain why it is called "mixed circumstance"?
The modifying circumstance of the criminal responsibility that Luis asks is that of art. 23 of the CP, in which he presents as mitigating the analog. It is called mixed circumstance, since according to the circumstances that occur in the specific case it can function as a mitigating or aggravating.
conclusion
Apply the previous considerations to the practical case and maintain a position on the same. After analyzing the case I conclude that the conviction imposed by the Court of First Instance is correct because Luis Coopero in Antonio’s death, and although there is some analogy with the art. 23 of the CP cannot be applied to the mitigating, since, although Antonio crias Luis since childhood as his son and there was a certain relationship of affection, this article is not applicable to mitrelationship.
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