There is no penalty without prior legal agreement ”, the same wording was raised to the constitutional provision (art.5 °, XXXIX, CF). According to his determination, someone can only be punished if, prior to the fact he practiced, there is a law that considers him a crime.
Even if the fact is immoral, antisocial or harmful, there will be no possibility of punishing the perpetrator, being irrelevant the fact that a law that establishes it as a crime subsequently comes into force.
The basic postulate also includes the principle of the priority of criminal law. The penalty may only be applied to the criminal who was previously provided by law as applicable to the perpetrator of the crime committed.
The principle of legality also violates the combination
The principle requires, now under analysis, that the law abstractly define a fact, that is, a determined conduct, so that it is possible to recognize which behavior is considered illegal. In this way, the vague and indeterminate criminal description violates the principle of legality, which does not make it possible to determine the scope of the primary precept of the criminal law, giving rise to the judge’s discretion.
The principle of legality also violates the combination of relatively indeterminate penalties in elastic margins, without specifying the quantum applied to the convict, creating an uncertainty for him regarding the time of deprivation of his liberty. Due to the aforementioned principle, it is forbidden to use analogy to punish someone for a fact not provided for by law, as it is similar to another defined by it.
The principle in question is obtained within the framework of the so-called “criminal guarantee function”, which causes its breakdown into four others: a) nullum crimen, nulla poena sine lege praevia (prohibition on editing retroactive laws that justify or aggravate punishment; b ) nullum crimen, nulla poena sine lege scripta (prohibition of reasoning or aggravation of punishment by customary law); c) nullum crimen, nulla poena sine lege stricta (prohibition of reasoning or aggravation of punishment by analogy); d) nullum crimen, nulla poena sine lege certa (prohibition of indeterminate criminal laws).
Prohibition of indeterminate criminal laws
Proportionality Between Offenses And Penalties The Talion Law, which limited the reaction to the offense to an evil identical to that practiced (eye for an eye), constituted a real advance in the history of Criminal Law, as it reduced the scope of punitive action. In the phase of private revenge, which gave rise to the appearance of the talion, if a crime was committed, the reaction of the victim, relatives and even the social group (tribe) occurred, who acted without observing any proportion to the offense perpetrated, reaching not only the offender, as well as your entire group.
If the transgressor were a member of the tribe, he could be punished with the “expulsion of peace” (banishment), which placed him at the mercy of other groups, who invariably inflicted death on him. In the event of a violation practiced by a stranger to the tribe, the reaction was that of “blood vengeance”, considered a religious obligation, of a sacred nature, which implied a real war moved by the group offended by the one to whom the offender belonged, culminating, in most cases , with the complete elimination of one of the groups.
Such practices, of course, were suppressed in the course of the evolutionary process of law. The principle of proportionality, derived from the principle of legality, requires, in its defensive aspect, a ratio between the devaluation of the action taken by the agent and the sanction that will be inflicted on him;
And its prevencionista aspect, a general balance between the prevention and the particular agent to behavior that will be subject to criminal penalties. The principle of proportionality is recognized by the doctrine as a measure of justice, the penalty must be as intense as the gravity of the fact. The difficulty lies in precisely quantifying the appropriate sanction for certain violations.
Also called utilities, they give punishment
What penalty would respect the aforementioned principle for a delinquent who rapes and kills a five-year-old child? Perhaps, this precept should not be inflexible, due to the impossibility of always applying it with exact precision, since, in certain situations, its measurement is not viable, and also due to its scope, restricted only to the result, ignoring the conduct, which characterizes an incentive to criminal practice. Punishment Purposes The purpose of the penalty has three major currents: a) Absolutists. They conceptualize punishment as just retribution for the unjust fact.
The requirement of justice is based on the penal sanction, he considered the person of the offender to be irrelevant. The chain adheres to the following brocade: “Punitur quia peccatum est” (punished because he sinned). “Even if the State voluntarily dissolves, the last murderer must first be executed, so that his culpability does not fall on the people who did not insist on this sanction: because they could be considered to be co-participants in the public injury of justice” .
Kant. b) Relativists. Also called utilities, they give punishment an exclusively practical purpose, that of prevention. The penalty is intimidation for all, when it is abstracted, and for the criminal, when imposed in the specific case. The penalty avoids new infractions, the delinquent who suffered it will not delinquent again, and the others, for example, will not risk the criminal practice. The first hypothesis concerns special prevention. the second to general prevention.
They adhere to the brocade: “Punitur ut ne peccetur” (it is punished so that it does not sin). c) Mixed or Eclectic. It reconciles the previous two, they understand that the nature of the penalty is retributive, but its purpose is not only preventive, but also educational. The penalty must aim to simultaneously repay and prevent the infraction. The current preaches the adoption of other measures in relation to the perpetrators of the crimes, besides conserving its traditional character.