Fundamental Concepts in Criminal Law

Understanding Core Criminal Law Concepts

Formal Criminal Law

Formal legal norms define and regulate specific human behaviors. These norms are extensive and visible, outlining the legal aspects that are proper and exclusive to certain actions. Formal criminal law specifically identifies human behaviors (crimes and misdemeanors) that result in a unique legal effect, namely the imposition of a penalty or security measure by the Criminal Law (DP).

Substantive Criminal Law

Substantive criminal law is an autonomous sector of the legal system, belonging to public law. It protects fundamental interests of individuals and the community by threatening or imposing punishment for behaviors that endanger these interests. It documents behaviors that go against the interest of the individual and the community, serving as the policy and catalogs applied to these behaviors.

Non Bis In Idem Principle

The principle of Non Bis In Idem states that the same act, once punishable in a criminal trial, cannot be subjected to a further record of disciplinary responsibility. An exception is recognized in Constitutional Case 27/11/1985, which does not preclude the enactment of the same offense by authorities of different orders, provided it is viewed from different perspectives (the latter being indispensable).

External and Internal Aspects of Criminal Law

External Aspect

The external aspect of a criminal offense involves a factual premise (e.g., a specific driving action) combined with a legal consequence (e.g., a penalty).

Internal Aspect

The internal aspect relates to the normative valuation (e.g., bad driving) and the normative determination (e.g., the threat of punishment).

Laws Beyond the Penal Code (LPeB)

LPeB refers to laws that fall outside the direct scope of the Penal Code but still affect behaviors considered criminal. Specific crimes detailed in the Penal Code, due to their broad nature, cannot always be exclusively regulated within it. For example, Article 360 of the Penal Code may interact with such external laws.

Objective and Subjective Criminal Law

Objective Criminal Law (DPO)

Objective Criminal Law (DPO) comprises the legal standards that define criminal offenses and their corresponding consequences.

Subjective Criminal Law (DPS)

Subjective Criminal Law (DPS) represents the State's punitive power, also known as ius puniendi – the inherent right to punish.

In essence, DPO encompasses the rules, while DPS is the power that applies them.

Key Principles of Criminal Law

Fundamental principles guiding criminal law include:

• Double Incrimination: (Likely refers to the prohibition of double jeopardy or double punishment for the same act, similar to non bis in idem)
• Specialty: (Application of specific laws over general ones)
• Legality: (Actions must be defined as crimes by law before punishment)
• Responsibility: (Accountability for one's actions)
• Justice: (Fair and equitable application of law)
• Normality: (Adherence to established legal norms)

Territorial Application of Criminal Law

The competence of penal law regarding its territorial application is governed by several principles:

• Personal Principle: Acts committed by nationals elsewhere can be judged within the home country, implying no immunity based on location.
• Real Principle: The State is competent to prosecute crimes that affect its fundamental interests, regardless of where the crime was committed or the nationality of the perpetrator.
• Universal Principle: Crimes that affect international interests (e.g., genocide, war crimes) can be judged wherever the perpetrator is found, irrespective of their nationality or the crime's location.

Retroactivity of Penal Law

Principle of Non-Retroactivity

According to Article 2 of the Penal Code, laws generally have no retroactive effect unless explicitly stated otherwise. This means they cannot be applied to facts that occurred before their enactment.

Favorable Retroactivity

However, Article 2.2 of the Penal Code supports retroactivity wherever it is favorable to the accused. This exception allows for the application of a newer, more lenient law to past facts if it benefits the individual.