Introduction to Spanish Criminal Law

Transcription

1 Universidad Nacional de Educación a Distancia Criminal Law Department IP Summer Course on Criminal Law July, 2008 Introduction to Spanish Criminal Law By Dr. José Núñez Fernández 1

2 Contents Preface 3 I. The concept of Criminal Law.4 II. The boundaries of Criminal Law.14 III. The legal concept of criminal behaviour: elements and structure and consequences according to the Spanish Criminal Code 30 2

3 Preface The aim of this booklet is to provide the students with some basic notions of the Spanish Criminal Law. The author of the following pages assumes that the readers already have some knowledge of the Criminal law of their own countries and so, he has taken the liberty to develop a non conventional structure when analysing the different issues related to the matter. General and specific aspects are all together examined within the same epigraphs. One must take in to account that the epigraphs expressively and exclusively refer to the general aspects, despite the fact they also encompassed the specific ones. The general aspects intend to shed some light on the Constitutional framework in which the Spanish Criminal law is embedded. That is how one can get a grasp of the reasons that lie beneath a certain regulation. The specific aspects are deemed as tools for the proper attendance of the workshop that will take place within this IP Summer Course, as well as they illustrate how certain areas of the Criminal law are regulated in Spain. 3

4 I. The concept of Criminal Law Law can be defined as the order of human collective existence, under the requirement of justice that is deemed as biding for a certain community at a certain time. Within the law, Criminal law is defined from two perspectives - From a formal and objective perspective: The Criminal law is a group of public legal norms in the sense that they have been established by the State through its legislative power. Such norms describe behaviours that constitute crimes and misdemeanours and link the commission of those behaviours to a legal consequence. The consequence can either be a penalty or a security measure and is meant to be imposed in the frame of a judicial proceeding within the criminal jurisdiction. Law in general and Criminal law in particular is conceived as a group of rules and expressed in legal propositions. These propositions consist of two elements: the fact and the consequence attributed to the fact. The Criminal law knows but two kinds of consequences as compare to other areas of law: penalties and security measures. Hence, a Criminal law norm is that which defines certain behaviour as a crime or as a misdemeanour and links its commission to a penalty or a security measure. Not all criminal law propositions are complete in the sense expressed above. Article 178 of the Spanish Criminal Code (hereinafter SCC) is however a complete legal proposition as it encompasses both the fact (the imposition of a sexual conduct through the use of threats or physical violence) and the consequence linked to the commission that conduct (one to four years of imprisonment). Other articles of the SCC do only describe either the fact or the consequence linked to its commission. For example, articles 205 and 208 of the SCC do only refer to the behaviours that constitute the crimes of unjust insult and libel, correspondingly. 4

5 It is elsewhere, in article 209 of the SCC, that the penalty with which those offences are punished is foreseen. Most of the norms encompassed in the first book of the SCC are incomplete juridical propositions. These rules are intended to complete the behaviour or the consequence of such behaviour as it is regulated in other articles of the SCC. For instance article 20.4 of the SCC determines that self defence is an exonerating circumstance. This norm is hence an incomplete legal proposition that should be put in connection with other nevertheless complete legal proposition such as that contained in the article 138 that regulates the crime of homicide. It is stated that whoever intentionally kills a person should serve a conviction of ten to fifteen years of imprisonment. Hence, the forbidden behaviour is the intentional killing and the consequence that such behaviour carries is the imprisonment of ten to fifteen years. However, article 20.4 does complements article 138 in the sense that the intentional killing of a person does not led to criminal responsibility, and hence is not punishable, if it is committed in self defence. Within the Criminal law there are also certain rules that do not define each of the elements of the forbidden behaviour by them selves but they do refer to other non criminal norms to do so. Such criminal norms as know as white paper criminal laws. They are not however incomplete legal propositions as they do embrace both the behaviour and the consequence of its commission, and therefore they hold an all in structure. It is just that the forbidden behaviour is not wholly defined in the criminal law proposition. Article 325 of the SCC forbids, under the penalty of imprisonment from 1 to 3 years, the unlawful discharge of toxic substances jeopardizing the natural environment. The unlawfulness of the discharge must be assed according to the laws that rule the protection of the environment. So the criminal norm embraces an element which precise meaning is comprehended in a norm which lies out the scope of Criminal law. It is then necessary to analyse the non criminal norm to fully understand the behaviour which is otherwise described in the criminal norm. Conclusively, the criminal legal proposition consists of two elements. One of those is the behaviour and the other is the consequence to which the performance of such behaviour leads to. This consequence can either be a penalty, a security measure and an accessory consequence which might be 5

6 applicable together with the penalty or the security measure. Let s analyse these three different concepts: 1. The penalty is the most traditional and frequent criminal sanction. It consists of a deprivation or a restriction of rights coercively implemented to the subject charged and convicted of a crime. It is the most severe within the Criminal law system, and it is afflictive and negative in its nature, once it lessens the individual rights, even if it must be oriented to his rehabilitation. One of the penalties that can be implemented according to our law is the imprisonment of the subject in a penitentiary institution. The maximum length of imprisonment can not exceed a period of 20 years. In some exceptional cases (such as some forms of murder and particularly terrorism) this length can reach 40 years. No one can spend more time in prison regardless of what he or she might have done. In our system, life sentence can not be implemented as it makes the rehabilitation of the offender impossible. Our Constitution does not impose the rehabilitation principle as an absolute imperative but it just requires for penalties that at least do not completely impede the rehabilitation of the offender. This is the reason why our system outlaws both life sentence and death penalty. 2. The security measure is one of the consequences of engaging in criminal behavior. It is conceived as a mean of preventing future crimes for those with certain mental problems who have engaged in criminal behaviour. It does not necessarily imply the deprivation of human rights nor does it have to be negative in its nature. It might consist in a therapeutic treatment, without there being a need of captivity. All security measures that can be impose within the criminal jurisdiction are those regulated under articles 95 to 108 of the SCC. According to article 95, the imposition of a security measure requires the commission of a crime by a subject. Also, both the fact perpetrated and the personal circumstances of the subject should reveal the likelihood of further delinquency. Moreover, the subject should be found not guilty of the crime committed on one or more of the following grounds: a) At the crime was committed the subject was suffering from a mental disorder that either made him unable to understand the meaning of law, or rendered him 6

7 incapable to adjust his behaviour to the law (article 20.1ºof the SCC). b) When the crime was committed, the subject was in a state of full intoxication due to alcohol or and drugs consumption, unless such state was intentionally provoked for offending purposes, or the possibility of engaging in criminal behaviour in such state should have been foreseen (article 20.2º of the SCC). c) When the crime was committed, the subject was under the effect of the withdrawal symptoms due to his dependency on alcohol and or drugs, provided the withdrawal symptoms either made him unable to understand the meaning of law, or rendered him incapable to adjust his behaviour to the law (article 20.2º of the SCC). d) The subject has a severely biased perception of reality due to a born or an early acquired illness that affects the proper function of his senses (article 20.3º of the SCC). Hence, for a security measure to be implemented a crime should committed in the first place. Only post offending security measures can be implemented within our criminal justice system. When the crime is punished with imprisonment had it been committed by someone who is not suffering from a mental disorder nor is intoxicated or under the effects of the withdrawal syndrome, the security measure could be on of the following, according to article 92.2 of the SCC: a) The admission in a mental institution; b) The admission in a drug or alcohol rehabilitation centre; c) The admission in an special education centre: All these three measures imply the enforced deprivation of the subject s freedom once he or she should remain in custody regardless his or her will. Nevertheless the admission has to be exclusively oriented to the treatment and cure, when possible, of the mental problem suffered by the subject. 7

8 The length of the interment can not exceed the period of imprisonment the person would have served had he been considered to be responsible for the crime committed. The judge must expressively indicate this maximum in the sentence. However, each year the sentencing tribunal is bound to review the implemented security measure and has to make one of the following decisions: - To maintain the security measure; - To order its cessation in case the subject is no longer dangerous; - To suspend the implementation of the security measure during a period that can not exceed the maximum length stated in the sentence, during which the subject must not engage in further offending. To make any of these decisions, the sentencing tribunal requires the positive corresponding proposal of the penitentiary surveillance tribunal. Such proposal must be based on medical reports. As it was stated above, when the security measure consists in the interment of the subject in an institution, the length of the interment can not exceed the period of imprisonment the person would have served had he been considered to be responsible for the crime committed. When this maximum is completed the person must be released even if he or she is not cured and even if he or she is still dangerous and prone to engage in further offending. 3. The accessory consequences (ruled Ander articles 127, 128 and 129 of the SCC): There is an unsolved discussion about their nature. They are certainly not penalties as they can affect third parties which are different from the person of the offender (particularly they can affect companies or non physical persons -companies might be closed as the result of the criminal behaviour carried out by one of their employees-). They can t either be deemed as security measures, as there is no need of the likelihood of further offending on the part of the subject they might affect for them to be implemented. They are not mere administrative sanctions as they are one of the consequences of criminal behaviour, must be implemented by a criminal judge within a criminal proceeding and are aimed at the prevention of further offending. 8

9 - From a subjective perspective: From a subjective perspective, Criminal law represents the right to punish (ius puniendi). Such right embraces both the use of threat of punishment to all citizens in case they engage in criminal behaviour and the actual application of the penalty or the security measure on the subject if he does commit a crime. The subjective side of the Criminal Law refers to the right to dictate Criminal rules, that take part of the objective Criminal Law, and the right to enforce those rules when necessary. Such a right belongs only to the State. The State, through its legislative power, is entitled to define the criminal rules (which describe certain behaviours as criminal and link the commission of those behaviours to a legal consequence either a penalty or a security measure-) and to enforce those rules (which means to punish the actual offender who has committed an act deemed as criminal by the law). Nowadays, it is generally accepted in democratic countries the fact that the State is the only one entitled to exercise the subjective side of the Criminal Law. Also, it is generally accepted that the State exercises such power within a both substantive and procedural legal framework it previously defines according with certain principles that will be analysed later on. After all, what is the aim of the Criminal law? Why the State has to define crimes and punish the individual who commits them? The reason is to protect certain interest considered to be essential for the pacific coexistence of all or at least the majority of individuals. That is why not any behaviour can be defined as criminal, but only those that endanger or damage such interests. This is an essential principle for a country, such as Spain, that defines it self, in its Constitution, as Democratic and Social State. The Criminal law can not be used, as happened in other times of the History, to protect the interest of a minority or some interest that have nothing to do with pacific coexistence. Hence, there are some interests considered essential for the pacific coexistence of individuals, such as human life, physical integrity, or private property. Criminal law intends to protect the mentioned and other interests by forbidding and punishing the behaviours that damage or endanger them. And Criminal law is somehow effective in achieving this objective, particularly 9

10 through the general prevention principle. In a way, criminal punishment is intended to deter all members of society from offending. The mere existence of Criminal law, which defines the forbidden conducts and the penalty with which such conducts are punished, displays this deterrence effect. Criminal law gives fair warning of the conduct declared to be an offence and the consequence of its commission. The implementation of the actual punishment by the law enforcement agencies reinforces this effect as it publicly proves that the threat of penalty embraced by the law is real. Offending can also be avoided by the special prevention mechanism, which means that the implementation of punishment deters the offender from engaging in further offending. When criminal punishment consists in the imprisonment of the offender, it seams rather obvious that he or she would not commit further crimes in society while in custody, as he or she would be isolated and subject to public control. Also, the negative experience of punishment, which implies the deprivation of human rights, might prevent the offender from committing crimes in the future. In conclusion is hard to question the necessity of Criminal law in the present society. Even if criminological factors tended to diminished, through the achievement, for instance, of social equity, there will always be some individuals in need of the deterrence effect the Criminal law displays. 3. The aims of criminal punishment in the Spanish criminal justice system In order to fully understand all that has been said one has to ascertain the aims of the Spanish Criminal law at the present day within the constitutional framework in which it is embedded. Particularly, one should analyze the aims attributed to criminal punishment and security measures, because although security measures are not conceived as the former, they are only implemented after a crime is committed and hence, should be taken as part or the criminal justice policy as well as the proper penalties. Moreover, their implementation as well as the implementation of penalties, implies the deprivation of human rights as it is coercive. In our system, criminal punishment is conceived, with the limitations of the rehabilitation principle that will be discussed later, as retribution. Somehow it 10

11 is a wrong the offender suffers in return for the wrong he caused by offending. That is how the criminal breach of law is supposed to be restored. There should then be a proportion between the crime and its punishment. Our system is inspired by an idea of justice according to which no man should pay beyond the cost of his actions. This is also considered to be a guarantee for the individual because it implies that the Criminal Justice System powers can never be limitless. When penalties, which are supposed to show the gravity of the crime they punish, are completed, it means that the individual has fulfilled his debt to society and he can not be subject to further responsibility. So in our system criminal punishment is basically conceived as retribution for the crime. However this does not mean that criminal punishment can not be oriented to fulfill other goals. On the contrary, within this retributive framework, criminal punishment is aimed at the achievement of different purposes that have little to do with retribution. One of these purposes is known as general prevention. It means that criminal punishment is intended to deter all members of society from offending. The mere existence of Criminal law, which defines the forbidden conducts and the penalty with which such conducts are punished, displays this deterrence effect. Criminal law gives fair warning of the conduct declared to be an offence and the consequence of its commission. The implementation of the actual punishment by the law enforcement agencies reinforces this effect as it publicly proves that the threat of penalty embraced by the law is real. Another purpose of the criminal law is known as special prevention. The penalty is also intended to deter the offender from further offending. There are many ways through which this objective can be achieved. When criminal punishment consists in the imprisonment of the offender, it seams rather obvious that he or she would not commit further crimes in society while in custody, as he or she would be isolated and subject to public control. Also, the negative experience of punishment, which implies the deprivation of human rights, might prevent the offender from committing crimes in the future. The isolation of the offender is as well aimed at the protection of society. Nevertheless, our system is more ambitious in the way it tries to achieve the special prevention objective. Our system intends to reform or rehabilitate the offender through the implementation of criminal punishment. The article 25.2 of 11

12 the Spanish Constitution states that imprisonment and security measures are oriented to the education and rehabilitation of the offender. The rehabilitation proposal is achieved when the offender accepts the principles that inspire criminal regulation as of his own and that, and not the avoidance of punishment, should be the reason for him not to re offend. This is why educational and treatment programs are an essential part of the Criminal Justice System. However, the rehabilitation principle should be understood in its precise terms. The Constitutions states that imprisonment and security measures are oriented to the rehabilitation of the offender. This means that the way in which these two consequences of criminal behavior are conceived and implemented should make rehabilitation possible. But that does not mean that they should ensure rehabilitation. The offender might not want to accept the principles that inspire criminal regulation as of his own and that is a legitimate pretension, provided he does not put his ideas in to practice. On the other hand, rehabilitation is sometimes not possible either because the subject has an incurable disease or because the system has not enough means to educate and somehow transform him. In these cases, criminal punishment and security measures might achieve the other aims that have been mentioned above. No matter the particular aim at which the criminal punishment is oriented, the retributive principle should be respected. It is a limit that can not be exceeded not even for security, general prevention, special prevention or rehabilitation purposes. Retribution determinates the maximum gravity of criminal punishment and security measures. But it can be put a side on behalf of rehabilitation or prevention purpose to reduce the gravity of the consequences of criminal behavior. Let s analyze a case in order to illustrate this idea Noelia de Mingo was a resident doctor at the Fundación Jiménez Díaz of Madrid. She had a diagnosis of paranoid schizophrenia. She had the delusional belief that some people at the hospital in which she was working were making fun of her and wanted her to withdraw from her duties. Such delusional belief had turned in to an obsession and she firmly thought that there was a complex conspiracy being made against her. So on April the 3 rd of 2003, she went to the hospital carrying a knife that she hid underneath her clothes. At 12

13 14.30, she stabbed three people to death and severely injured another four, until some men from the hospital staff managed to hold her still. Dr. de Mingo was charged with three murders and four attempts of murder. In the verdict, she was found not guilty of the mentioned crimes because it was proved that when she committed them, she was suffering from a mental disorder that rendered her unable to adjust her behavior to the prohibitions of the criminal law that prevent us from the unjust or inexcusable killing of someone. She was however sentenced to the confinement in a mental institution for a maximum period of 25 years. That would be the maximum penalty she would have been convicted to, had she been considered responsible for the crimes she committed. As it is literally stated in the SCC, the security measure can not last any longer than the penalty that could have been implemented had the subject been considered criminally responsible. This rule knows no exception and then, even if the subject, in this case Mrs. de Mingo, remains dangerous after the security measure is completed, she would have to be released. This is how the retribution principle works as limit for criminal punishment and security measures. But retribution could be put a side to reduce the sentence in case Dr. de Mingo becomes healthy and not dangerous before the 25 years are completed. 13

14 II. The boundaries of Criminal Law A) Introduction In a Social and Democratic State, such as that established by the Spanish Constitution, Criminal law, both in its objective and subjective nature can not consist of an absolute power, but it must observe certain limits. One can think of two main factors that show the need of setting boundaries to the power of the State of dictating and enforcing Criminal law. On the one had, in many cases, penalties, particularly imprisonment, carry a huge social cost as well as it can provoke devastating effects on the person upon whom it is implemented. On the other hand, the Social State has an inclination to intervene in the resolution of social conflicts and that could jeopardize the individual right of personal self achievement. We have defined Criminal law from a double perspective that embraces both the power of the State to dictate criminal norms which describe and punish criminal behaviour, and the power of the State to implement such norms through the action of the State Law Enforcement Agencies. Hence, we must now define the boundaries of both powers. Those boundaries affecting the power of dictating criminal norms are known as the material boundaries, whereas those related to the enforcement of the criminal norms are referred to as formal boundaries. B) THE FORMAL BOUNDARIES One can distinguish between three different formal boundaries that are related to the creation and the enforcement of Criminal law: - The subjective boundary: The State is the only holder of the power to create and implement Criminal law; - The objective boundary: The State, trough its legislative power, dictates the norms that describe and punish criminal behaviour. No behaviour can be deemed as criminal if it has not been previously describe as such by a 14

15 law dictated by the legislative power of the State (legality principle nullum crimen, sine lege ); - The functional boundary: Court and Tribunals are the only State institutions which can enforce the Criminal law and they must do so following a procedure that has also been previously defined by a law passed by the State legislative power ( nulla poena, sine legale iuditio ). Let s analyse each of the mentioned boundaries: 1. The subjective boundary: Nowadays hardly anyone questions the fact that the power to dictate and enforce the norms that describe and punish criminal behaviour belongs exclusively to the State. We are far from the old times in which the response to criminal behaviour consisted in private revenge. Individuals who were attacked other individuals could counted on nothing but their own and private means to defend themselves from the aggressors. Such old system generated insecurity and allowed for social inequity, as not all individuals were equally protected: the weak and the poor had fewer chances to protect themselves than the strong and rich individuals. Throughout the History, the situation has changed. The Modern State appeared as the representative of all citizens, and as such, it assumed the power of defining and punishing criminal behaviour. The powers encompassed in the notion of Criminal Law have since been exclusively attributed to the State. Within the State, it is the legislative power the one entitled to pass the norms that describe and punish criminal behaviour, whereas the judicial power is the one entitled to enforce such norms. The existence of private (such as libel) and semi-public crimes does not question the State ownership of the powers embraced by the Criminal law. The prosecution of the private and semi-public crimes (such as rape or sexual abuse) depends on the complaint of the victim or his representatives. But this does not mean that the victims or his representatives own the right to punish, within the criminal jurisdiction, when it comes to private or semi-public crimes or offences. It just means that in some cases, in which certain private interests are affected, the victim or his representative have the right to decided whether or 15

16 not he wants the offence to be prosecuted not whether or not the offence they have decided to prosecute will be actually punished, because such decision, remains always in the hands of the State and its Law Enforcement Agencies. 2. The objective boundary: the legality principle The expression nullum crimen, nulla poena sine lege is used ton name the legality principle, which is one of the most important formal boundaries of the Criminal Law. It means that no behaviour can be deemed as criminal unless it is previously described as such by a law. Moreover, such criminal behaviour can only be punished with the penalties established for it by the law. So it is the law that determines which conducts are criminal and which are the consequences of their commission. The current formulation of the legality principle derives from Feuerbach s doctrine. The legality principle can not be separated from its genuine origins which are the Liberal and Enlightment Movement. The French Revolution established this body of thought as a leading doctrine. The people will no longer be submitted to the absolute power of the King, but will become sovereign. And the people expressed their will through the law. It is when the legality principle acquired the political meaning it still maintains today. The legality principle claims that the citizens, the institutions and the State are under the sovereignty of the law. We have to understand this principle in the context of the social contract and the doctrine of the separation of powers. The law should be sovereign as long as it is the expression of people s will, other wise the legality principle looses its political meaning and becomes unable to be a guaranty for the individual. So it is the law that must define which behaviours are criminal and then forbidden. The existence of crimes implies a limitation of personal freedom as they imply the prohibition certain conducts under the threat of punishment. It should be in the hands of the People the right to decide which conducts are forbidden; it is for the People to establish the boundaries upon themselves. The legality principle then accomplishes very important political functions within the Social and Democratic State. It enables the existence of Criminal Justice: If the law is the reflection of People s will and it defines and punishes criminal actions, somehow the sanctions have been accepted by their potential targets before they are actually foreseen and implemented. On the other hand, the legality principle allows for legal certainty and security, as all citizens will be able to know which conducts are forbidden and what will be the consequences of their commission, as both the conduct and its consequences have previously been describe by a written and public law. Moreover, once the legality principle implies that the law reflects people s will, it satisfies the right of autonomy of the individual, as it acknowledges not only his capacity to act according to the law, 16

17 but also his capacity to intervene in the process of law making, through his representatives in the legislative power. Finally, and as a consequence of the mentioned functions, the legality principle expresses two of the most important values in a democracy which are equality and freedom. 2.1) The legality principle and its implications in the Criminal Law: The legality principle has a triple repercussion throughout the Criminal Law. Firstly, it supports four guarantees of the individual: the criminal, the penal, the jurisdictional and the penitentiary guarantee. Secondly, it has an enormous effect in the sources and interpretation of criminal law. It implies a severe limitation of the sources of the criminal law as it excludes the custom on behalf of legal certainty and security ( lex scripta et stricta ). It also outlaws the retroactive application of the Criminal Law unless it has positive effects for the individual ( lex praevia ). Thirdly, it requires the law to be formulated in precise and clear terms so that all citizens can have an exact idea of the forbidden conducts and the consequences of their commission ( lex certa ). We shall analyse each of the above repercussions of the legality principle ) Four individual guarantees supported by the legality principle: a) The criminal guaranty: Thank to the so called criminal guaranty, no behavior can be deemed as criminal unless it has been previously defined and punished as such by the law. This guaranty is incompatible with the so called natural crime or with judicial creation of criminal behavior. Also it prevents the Executive power of the States from issuing norms that define and punish offenses. As has been previously said, only the Legislative power of the State, as the representative of People s will, is entitled to exercise the power of passing the norms that define and punish criminal behavior. 17

18 Articles 25.1 and 9.3 of the Spanish Constitution confirm the criminal guaranty together with article 2.1 and 95 of the SCC, the latter referred to security measures. b) The penal guaranty: According to the penal guaranty, no penalties or security measures can be implemented as the consequences of criminal behavior unless they have been previously foreseen by the law for the mention purpose. It is only the law that can state the kind and the length of the penalty or the security measure. The Judges or the State Executive Power do not have a say over this matter. This guaranty is confirmed by articles 2 and 4.3 of the SCC, and it forbids the arbitrary and indeterminate punishment. Nevertheless, the law does regulate exceptional punishment regimes, according to which certain penalties can be suspended (articles of the SCC) or substitute by other measures (articles of the SCC). Once those exceptional regimes are stated by the law, they do not contradict the penal guaranty. c) The jurisdictional guaranty (the functional boundary): According to the jurisdictional guaranty, no penalty or security measure can be implemented unless a competent Judge decides so by passing a conviction sentence after a fair trial is hold. As was previously said, it is the law that defines and punishes criminal behavior. But the interpretation and implementation of the law falls to the State judicial power, that exercise these functions through the proceedings also regulated under the law. The jurisdictional guaranty knows no exception, so even if the offender is caught in the very moment the offence is being committed, or even if he declares himself guilty, his conviction in the criminal jurisdiction will always require the holding of a fair trial after which the judge will have to pass the corresponding conviction sentence, if the evidence support a conviction verdict. The jurisdictional guaranty is proclaimed under articles 24 and of the Spanish Constitution, articles 1 and 2 of the Judicial Power Organic Law, article 3.1 of the SCC and article 1 of the Criminal Proceeding Law. 18

19 The jurisdictional guaranty does not refer to the characteristics a conduct must have in order to be considered criminal. It has to do with the process of verifying the existence of a conduct described as criminal by the law, the process of identifying the individual who has committed such conduct, and the process of determining his responsibility. The jurisdictional guaranty encompasses four sub principles: - The only one entitled to intervene in the resolution of the social conflict the criminal behavior implies is the State Judicial Power. It is no longer for the victim and the aggressor to decide over their dispute when an offense has taken place (exception needs to be made in relation to private and semi public offences, and the practice of settlement agreements before the Court that require the intervention of the Public Prosecutor). - The independence and the impartiality of the State Judicial Power in the task of interpretation and implementation of the Criminal Law. - The process of verifying the existence of an offence, of identifying the individual who has committed such conduct, and of determining his reasonability must be submitted to the contradiction of different parties in the trial. - The existence of an offence, together with the identification of the person who has committed the offence and the determination of his responsibility can not be affirmed but through empirical evidence that should be brought before the judge. d) The penitentiary guaranty: According to this guaranty, both penalties and security measures can only be executed in the terms and conditions previously established by the law. After the conviction sentence is passed by the judge, the penalty must be executed and the implications of the legality principle reach this last and essential stage of the Criminal proceeding. 19

20 2.1.2) The legality principle and its implications in the sources and interpretation of the Criminal Law: One can distinguish between two consequences in relation to this matter: a) The exclusion of the custom and other non written sources ( lex scripta ) as direct sources of Criminal law. The custom can not be considered as a source of Criminal law. It can not be invoked to affirm the criminal nature of a behavior that has not been stated as such by the law nor can it be cite to decriminalize an offense that has been described as such by the law. The prevalence of the law and the rejection of certain non written norms as sources of Criminal law have to do with the legal certainty and security principle. The law is not just the reflection of people s will, but also it can be easily known by all individuals as its creation process in the Parliament is public and written. One can not be so certain about the content of a custom as it is not written any where, or if it is there normally various versions of it so no one can be certain about which is the one in force. Moreover, one can not participate in the creation of the custom in the way one can share in the creation of the law through the democratic proceedings. However, the custom can be nevertheless used to interpret certain terms of the Criminal law. Particularly, those terms which meaning can not be apprehended by human senses, because they refer to a complex reality. The custom does show the culture of a society and this is how it can be used to interpret the terms the Criminal law uses to define a criminal behavior. This use of the custom as a tool for the interpretation of Criminal law is accepted provided it does no jeopardize the interests of the offender. It can only be used in his benefit. c) The retroactive application of the Criminal law is forbidden unless it has positive effect for the offender ( lex praevia ). 20

21 Article 9.3 of the Spanish Constitution and articles 1 and 2 of the SCC forbid the retroactive application of the Criminal law unless it benefits the offender. This means that, in general, the Criminal law applicable to a certain behavior is the one that was in force in the moment the behavior takes place. The behavior can only be punished if was described as criminal by a law that was necessarily passed before the conduct occurred. This is the only way through which legal security can be achieved. The individual can only be aware of the consequences of his acts if a law previously states them. Also, the proscription of the retroactive application of the Criminal law enables the achievement of the general prevention goal. The general prevention goal, that is to say the deterrence effect the mere existence of the Criminal law displays among all citizens, can only be achieved if the citizens know in advance which conducts are forbidden and which are the consequences of their commission. It would be very difficult to deter someone from doing something that is not previously defined. Moreover, when the State punishes an individual is somehow reproaching the individual for committing an offence. The reproach can only make sense if the individual was able to avoid the commission of the offence. Such possibility does not exist when the individual does not previously know the forbidden behavior because there is no objective possibility of acquiring such knowledge. So the Criminal law can not be applied retroactively unless it has a positive effect for the offender. This exception is regulated under the article 2.2 of the SCC, and it is taken in to practice quite often because criminal procedures tend to last, and then, at the time of the conviction, a later law, different from the one that was current when the offence occurred, might be in force. This subsequent law will be applied only if it benefits the offender, by for example, punishing the behavior with a lesser penalty than the law that was in force when the behavior took place ) Implications of the legality principle in the legislative technique of the Criminal law: It requires the law to be formulated in precise and clear terms so that all citizens can have an exact idea of the forbidden conducts and the consequences of their commission ( lex certa ). 21

22 The Criminal law must describe the criminal conduct in precise and clear terms to enable the judge and the citizens to know what is and is not forbidden and punishable. The consequences of the criminal behavior, penalties and security measures, should also be defined precisely and clearly for the mentioned reasons. As was stated earlier, the legislator represents the will of the majority of citizens and this is why it is the only one entitled to define and punish criminal behavior. If the legislator defines criminal behavior in obscure and ambiguous terms, then it would be for the judge to decide whether a conduct is criminal or not with far too wide margin of subjectivity. The judge could actually be defining the criminal behavior. Such obscure and ambiguous legal prevision would then breach the power division principle. Moreover, legal certainty and security principle not only requires the existence of a written law as was mentioned above. It also requires for the law to be expressed in clear and precise terms so that citizens and judges know what is and is not forbidden and punishable. Hence the lex certa principle is related to the power division principle and the legal security principle. However, in practice, these requirements are no easy to fulfill. In many occasions the law refers to a very complex reality and it is very hard for the legislator to express the forbidden behavior in clear, precise and objective terms (v.g. one can think about the crime of libel that is intended to protect the individual s honor or reputation). Also it is important to ascertain the fact that the law is somehow abstract in its nature as it is intended to be applied to many different situations. So, due to all these reasons, there are some crimes regulated under the SCC that are defined in vague and ambiguous terms. These regulations jeopardize the legal certainty and security principle and should be avoided when possible. As was mentioned above, the legislator should also define the consequences of the criminal behavior in precise and clear terms. But the consequences of the criminal behavior are also part of the law, and as such, they hold and abstract nature. The legal systems enable the judge, within certain limits, to adjust the general consequences established in the law to the personal circumstances of the convicted individual. 22

23 C) THE MATERIAL BOUNDARIES These are the boundaries that the legislator must take in to account in the task of defining and punishing the criminal behavior. These boundaries are intended to the rationalization of the Criminal law. These boundaries are: the principle of fact, the principle of exclusive protection of interests that allow the pacific coexistence of individuals, the principle of minimum, subsidiary and fragmentary criminal intervention, the personal responsibility principle, the proportionality principle and the humanity principle. 1. The principle of fact: This principle is ruled under article 25.1 of the Spanish Constitution and articles 6, 16.1, 16.3 and 28 of the SCC, among many others. It means that a human being can only be held criminally responsible for his actions that can also consist in omissions- and not for what he is or what he thinks. Therefore, a crime necessarily consists in an external action or omission. The Criminal law is intended to regulate the external coexistence of individuals, and not their conscience. The fact principle means that the State can only forbid external human behaviors that can either be positive (action) or negative (omission) in their nature. All criminal actions and omissions are external in the sense that they can be apprehended by human senses. The reason why only external actions and omissions can be defined as criminal is because they are the only ones that can damage the pacific coexistence of individuals, a part from the fact that they can be proved within a trial. The fact principle basically leads to two consequences. Firstly, no one can be held criminally responsible for his mere thoughts or whishes. Secondly, a life style or a personality can not be used to attribute or aggravate criminal responsibility. Also the fact principle is in coherence with the legal certainty and security principle. That is because external conduct can be proved. There can be 23

24 certainty about its existence, so there can be certainty about the fact that is going to legitimate the criminal justice intervention by the implementation of a penalty, which represents an essential guaranty for the individual. On the other hand, the fact principle enables equality. It is the actual conduct which will determine criminal intervention and criminal punishment regardless the identity of his perpetrator. His personal circumstances will nevertheless be taken in to account in sentence to define the actual length of his conviction or for instance, the conditions of his imprisonment. But this adjustment does not question the fact principle, as it is the actual conduct perpetrated the only factor that can lead to criminal responsibility and criminal punishment. The personal responsibility principle is related to the fact principle. The latter prevents the criminal punishment of mere thoughts or wishes, personalities or life styles. The former means that citizens can only be held criminally responsible for their own actions, unless there are subject to a duty of surveillance and control of other individuals (in that case someone can be criminally responsible for the conduct performed by a third person whose control and surveillance was assumed by the former). 2. The principle of exclusive protection of interests that allow the pacific coexistence of individuals. Our Constitution declares that Spain is a Democratic and Social State. Within such political structure, Criminal law can deemed as criminal only those behaviors that damage or endanger the interests that are necessary for the pacific coexistence of individuals. It is only in the context of pacific coexistence, that an individual can achieve personal fulfillment. This harmfulness principle refers to the doctrine of the social contract. Once criminal intervention implies the restriction of Human rights (there are some forbidden conducts that the individual must not perpetrate if the does not want to be punished), such restriction would only be legitimate if it is necessary for the pacific coexistence of individuals. So a conduct is deemed as criminal by the Criminal law if it endangers or damages certain interests. Some of these interests are personal (such as honor, life, physical integrity, etc.), whereas other do hold a collective nature 24

25 (such as public health, save road traffic, etc). But these latter interests are also important for the individual, regardless their collective nature, as they are as well necessary for the pacific coexistence of all individuals, and hence for the achievement of personal fulfillment. The fact that Criminal law aims at the protection of certain interests does not mean that all interests should be protected by it. Also, not any act of damage or endangerment of an interest should necessarily be considered criminal. The Criminal law is oriented to protect only the most important interest of all that enable the pacific coexistence of individuals, and only from the most serious attacks these interest might get. That is in coherence with the minimum and fragmentary criminal intervention principle. The principle of exclusive protection of interests that enable the pacific coexistence of individuals also means that Criminal law can not shield mere moral or ethical values. Also, harmless conducts can never be considered as criminal. Normally, the interest the Criminal law is intended to protect should combine two characteristics: generality (it affects the majority of individuals) and relevance (it is essential for individuals and society). 3. The minimum and fragmentary criminal intervention principle. Criminal law intervention is highly costly as, in many cases, it implies the deprivation of the offender Human Rights. Moreover, Criminal law intervention might be effective in terms of general prevention but it has not shown a great deal of effectiveness in terms of special prevention, rather on the contrary, considering the high rate of re offending and the low rate of rehabilitation. Criminal behavior reveals social problems and criminal punishment only deals with the symptoms, without there being any incidence on the causes of the offence. Also the offender is stigmatized by the criminal punishment and his stay at the penitentiary institutions does nothing but confirm his criminal carrier in most cases. The criminal punishment provokes collateral effects on individuals different from the offender such as their relatives and friends. Not only they can get stigmatized by the criminal punishment, but also they can suffer economical damages if they were dependent on the offender and he can no longer attend their needs because of his imprisonment. 25

26 The social cost of criminal intervention explains the minimum and fragmentary criminal intervention. But this principle is also justified by political reasons. In a Democratic State, ruled under the social contract, men renounce to the minimal possible share of their personal freedom in order to ensure the pacific coexistence of the majority of individuals. So criminal punishment should not exceed this limit, or other wise if would betray the essence of the democratic system. Criminal law intervention is only justified to deal with the most serious attack on the most important interests of society. 4. The personal responsibility principle. The personal responsibility principle is one of the material boundaries of the Criminal law. It implies that an individual can only be held responsible for his own act, meaning the acts that he himself has perpetrated. This principle encompasses the following: - Personality principle: One can only respond for his own acts and not for somebody else s acts (with some exceptions that were mentioned earlier). - Fact principle: Only external conducts can be object of criminal punishment. Mere life styles, thought or wishes can not be deemed as criminal. - Means rea principle: Ruled under article 10 of the SCC, this principle means that offences or misdemeanors are those intentional or negligent actions forbidden and punished by the law. So for someone to be considered criminally responsible of an offence, he must not only perpetrate the act forbidden by the law, but also he should perform it with a certain mental state, which is that of intent or negligence. Intent requires awareness and will whereas negligence implies the breach of a duty of care that results in the commission of an offence, without there being an intention of doing so, on the part of the subject. - Personal imputation and guilt principle: For a person to be held criminally responsible of a crime and be subject to criminal punishment, he must be 26