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Principio De La Legalidad En El Derecho Penal

The principle of legality implies the prohibition of analogy in criminal law. The main application of the principle of legality in administrative law is its power to impose sanctions. This implies that the assignment of the public administration to the sanction can only be made by law. The principle of legality, as well as other general principles of law, is at the origin and basis of the rules. General principles take precedence over other sources of law. They are the basis of positive law. In addition, the principle of legality in criminal matters is regulated by various articles of the Criminal Code, in particular article 10; 1.1; 2.1 and 4.2 of the above-mentioned Code. : This principle of legality imposes four restrictions on criminal sanctions; In other words, the principle of legality is deployed and manifested through four guarantees: article 2.1 of the Criminal Code refers to the guarantee of punishment when it provides: “No crime or offence may be punished by a penalty not provided for by law before being committed. (…)” The principle of legality includes certain guarantees, for which the Criminal Code itself devotes its first articles: In the principle of legality, two types can be distinguished: The principle of legality in criminal law was born and developed in the period when we observe precursors such as Beccaria`s work: “Crimes and penalties”, based on the social contract of Rousseau and Montesquieu and the separation of powers. Also contained in various declarations of human rights and international covenants and also logically present in Spanish criminal law. The definition of the principle of legality in general and legality in criminal matters derives from criminal law and in particular from Article 1 of the Criminal Code. From Aboga2, our defense lawyers will try to resolve all your doubts regarding the principle of legality or the rule of law. According to the principle of legality in criminal law: One of the most important principles of criminal law today is the principle of legality, the essence of which is: nullum crimen, nulla poena sine praevia lege (there is no crime or punishment without privilege).

In addition, the principle of legality includes a number of guarantees contained in criminal law. The analogy is defined as “the transfer of a rule established by law for a particular case of fact to another case of similar facts not regulated by law”. In this context, article 3.1 of the Criminal Code provides: “Criminal law shall not apply to cases other than those expressly provided for therein. The Spanish legal system provides for a series of fundamental principles as primary values that guide and regulate the creation and interpretation of legal norms in each area of law (civil law, criminal law, constitutional law, administrative law, tax law…) This fundamental principle is summed up by the expression “nullum crimen nulla poena sine lege” and implies that a penalty cannot be imposed on anyone for an act that has not been characterized as a crime in a particular previous State law which considered it as such. On the one hand, the Spanish Constitution recognizes the principle of legality in article 9.3 and refers explicitly, albeit imperfectly, to the principle of criminal legality in its first article 25, paragraph I: the remedy of amparo can be invoked only once the criminal proceedings have been completed at all stages and all the remedies authorized by the ordinary courts have been exercised – article 44.1.a) of the LOTC -. Therefore, criminal proceedings constitute the initial natural framework for invoking violations of fundamental rights that may arise during the trial itself. The Constitutional Court has established a doctrine according to which, in cases where the proceedings have not yet resulted in a conviction or acquittal and the hearing has not taken place, it is premature to invoke violations that could be investigated later during the trial (e.g. STC 155/2019 of 28 November -FJ1- [j 3]). In view of these safeguards, the principle of legality also derives from certain prohibitions, which in turn provide legal certainty to citizens: for example, only criminal conduct that meets all the requirements of the type of penalty determined by law can be sanctioned. In general, this implies that all public authorities and citizens are subject to the law and can only do what is or is not prohibited by law. The principle of legality is linked to other general principles of law.

The principle of legality is to guarantee and protect legal certainty. Although it is used throughout the legal system, it is gaining importance in the criminal, administrative and tax fields. The principle of legality in criminal proceedings constitutes the main limitation to the exercise of jus puniendi by the State, since the authorities are subject to the rule of law in all its dimensions, which presupposes, inter alia, that criminal proceedings are conducted with full guarantee. In criminal law, the principles of Spanish criminal procedure are governed by various rules. Hence the various guarantees of the judicial system in the criminal aspect. “In the exercise of his jurisdiction, a judge or court shall be aware of an act or omission which, although not punishable, refrains from any proceedings concerning him and shall explain to the Government the reasons why he must believe that the perpetrators should be prosecuted.” The importance of the principle of legality is undeniable in all areas, but especially in administrative law. Among other things, because the administration must adhere to a hierarchical legal system according to this principle. It is inherent in the exercise of jus puniendi to submit to certain limits, compliance with which is a prerequisite for ensuring that the application of criminal law as a State monopoly and an instrument of social pacification does not lose legitimacy before citizens. Some of these limits, typical of a State governed by the rule of law, are part of the principle of legality, which gives citizens legal certainty that they will not be punished for violations, sanctions or security measures that are not provided for by a law prior to their typical act and that are in any case imposed by a judge and in a procedure provided for by law.

As a preliminary point, it should be recalled that, in view of the fundamental relevance of the rights at stake, any infringement or impairment of their characteristic effects may be denounced and, where appropriate, restored, first before the ordinary courts, with the possibility of linking, in addition to the rules infringed, the binding nature of judges and courts to their protection and effectiveness – art.

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