Abstract
In their function of control over criminal law, constitutional judges often feel something like Ulysses between Scylla and Charybdis. If they consider that the law under question does not comply with the parameters of the Fundamental Law and decide to annul it, they run the risk of enduring the democratic objection that in spite of the secondary nature of their legitimation, they are correcting the representatives of the people. If out of respect for the latter, they tolerate the existence of laws “of poor constitutional content”, so to speak, they can be criticized for their axiological insensitivity and the pointlessness of the institution to which they belong.
The corresponding research took place in the framework of the project “Tutela multinivel de los principios y garantías penales”, financed by the Ministerio de Economía y Competitividad in the context of the Sixth National Plan of R&D+i (DER2012-33935).
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Consider, for example, the decision of the Spanish Constitutional Court that decided to declare unconstitutional—on account of its violating the right to freedom of expression—the criminal law sanctioning the negation of genocide (STC 235/2007). Article 607.2 of the Spanish Penal Code contemplated one to two years’ imprisonment for “the dissemination by any media of ideas or doctrines that deny […] the crimes defined in the previous section of this Article”, which are those of genocide. See, in this respect, Lascuraín Sánchez, “La libertad de expresión tenía un precio (Sobre la STC 235/2007, de inconstitucionalidad del delito de negación del genocidio)”, in Revista Aranzadi Doctrinal 6, October 2010, pp. 69–78.
- 2.
We may recall, for instance, STC 161/1997, which held that the statutory rule sanctioning the mere refusal to submit to a police alcohol test with a penalty greater than that for driving under the influence of alcohol was not unconstitutional on the grounds of disproportionality.
- 3.
As Villaverde Menéndez states, “the existence of fundamental rights is consubstantial to the model of the democratic constitutional system, because the latter, in order to be such, presupposes, precisely, that basic legal statute of the person and the citizen, without which there is no democratic rule of law”. See Villaverde Menéndez (2002), p. 320.
- 4.
The paradox of the sorites (from Gk. soreites < soros, a heap) is attributed to Eubulides of Miletus, a contemporary of Aristotle; it consists in determining how many grains of wheat are necessary for a heap of wheat to exist. Beyond the logical implications of the paradox, the semantic and the epistemological implications are interesting: “it belongs to the very nature of a vague predicate that one cannot trace a clear dividing line between the things it applies to and those to which it does not apply. We may, perhaps, be able to make use of comparative approximations and say, for instance, that something is more or less close to being a heap, but we cannot establish a precise moment at which it passes from a heap into a non-heap. And where epistemology is concerned, the case is just the same: there is a wide range of situations in which we cannot know whether we are dealing with a heap or not, for our cognitive mechanisms do not have the necessary precision”. See Laporta (2004), p. 19 ff.
- 5.
This was the Spanish Constitutional Court’s judgment in relation with the minimum sanction of six years imprisonment under criminal law for any kind of collaboration with terrorist organizations (STC 136/1999).
- 6.
The Spanish Constitutional Court considered an article that criminally sanctioned the not expressly authorized hunting of non-threatened species to be unconstitutional because of its indeterminate nature (STC 101/2012).
- 7.
“The notes of extreme abstraction and openness are what seem to bestow on fundamental law its peculiar identity, which conditions the mode of its legal interpretation” (Villaverde Menéndez 2002, p. 329). Or again, in the words of Bayón Mohíno, “given that the constitutional precepts that declare basic rights are normally formulated in considerably vague and abstract terms, their application makes a ‘moral reading’ of them” strictly inevitable. Bayón Mohíno (2000), p. 69. Regarding the greater degree of indeterminacy of the precepts contained in a Constitution, see also, García Amado (2004), p. 72, or Revenga Sánchez (2005, p. 152), who observes that the Constitution is “plagued with abstract, open provisions, with an intense ideological burden”.
- 8.
Regarding these advantages of judicial interpretation, see Ferreres Comella (2010), p. 376 ff.
- 9.
In this respect, Viver i Pi-Sunyer (2006), p. 74 ff.
- 10.
De Lora Del Toro holds that the criterion of constitutional control must be the criterion in dubio pro legislatore: “the Constitucional Court is called upon to carry its role as definitive interpreter to its ultimate consequences only in extreme cases: when the violation of the Constitution has been demonstrated beyond all doubt” (De Lora Deltoro 2000, 55).
- 11.
Thus, De Lora Deltoro (“in order to overrule the legislator it will be necessary to have the conviction of all members [of the Court]”, who, nonetheless, warns that one must not “confuse the doubt of anyone with any doubt [at all]”, so that “we must be in the presence of the expression a reasonable doubt” (De Lora Deltoro 2000, p. 68).
- 12.
Critically, see Revenga Sánchez (2005), pp. 154, 157 ff.).
- 13.
See, in this respect, Ferreres Comellas (2011), p. 16.
- 14.
STC 24/2004.
- 15.
As stated by Atienza, in order to do justice to the normative dimension of rights “we need—or we may need—to rely on both rules and principles” (Atienza 2011, p. 76). Much of the normative content of fundamental rights is of the nature of principles. It deals with “how the concrete normative rules are applicable to the case to be created with the ultimate purpose of optimizing the legal power of self-determination of individual behaviour, the object of every fundamental right, in a particular legal relation” (Villaverde Menéndez 2002, 329). Every basic right is thus “a norm of principle”. The “optimal application of a fundamental right will be one that does not unduly close its possibilities (maintains the norm open), and if one does proceed to a situation of closure, this should respond to a prior constitutional qualification and, in its concrete application, proportionate means should be employed (proportionality principle)” (p. 331). As such, “every fundamental right contains a mandate of optimization of individual liberty protected in every concrete fundamental right” (p. 336).
The limits imposed upon the legislator by fundamental rights are of two kinds. An essential content exists that can not be contravened; the remaining content can only be restricted in conditions of proportionality. Think of the analogy between the task of expression (interpretation) of the essential content of a basic liberty and the determination of the essential content of a principle; think, likewise, of the degree of discretionality entailed in the control of legislative restriction in pro of the preservation of another constitutional asset or right; finally, think of the fact that, once the essential content has been regulated, the work of control must be based on the reasonableness of the legislative option (for instance, whether it is reasonable to understand that the law respects the intangibility of information that is “diligently sought” and “of public interest”).
Some contents of fundamental rights are also in the nature of rules. Think of the prohibition of prior censorship (Art. 20.2 Spanish Constitution) (SC), of the insistence upon the need for a judicial resolution for the intervention of communications (Art. 18.2 SC) or the maximum period of 72 h for preventive detention (Art. 17.2 SC).
- 16.
In this sense, see Atienza (2011), p. 78.
- 17.
The restrictive tendency would be identified with a comparatively more limitative interpretation of the Constitution as regards the legislator’s field of operation in relation with other possible alternatives.
- 18.
We may speak of a tendency to defer to the legislator if, in view of the imaginable or available alternatives, which in relation to the constitutional text are many, the Court opts for an extensive understanding of it, such that it facilitates the compatibility of the contested judicial statement. A manifestation of such deference would be, likewise, an interpretation of the latter aimed at making such a framing possible: in such cases it is not the framework but the text to be framed that is worked upon. From this point of view, such interpretative judgments can be understood as showing a deferent attitude towards the legislators, as an operation aimed at salvaging the fruit of their activity: “Interpretative decisions are the fruit of a weighing up of substantial interests that are drawn from institutional principles (presumption of constitutionality of the law, the principle of conservation of norms, interpretation that is the reserve of ordinary legality) that influence the very basis of the decision […]. It would not be an exaggeration to affirm that the interpretative decision assumes […] an extremely valuable function at the service of the general strategy of neutralization (and even negation) of conflicts that is a normal feature of Western democracies in their seeking to avoid endangering a horizon of immutable stability” (López Bofill 2004, pp. 25, 30).
- 19.
When qualifying constitutional jurisdiction as “strict” or as “deferent”, the commentator may, depending on his/her general attitude, intend praise or censure. Those who affirm that the Constitutional Court has been strict may wish to say that it has been faithful to the mandate of the Constituent Legislature to keep watch over ongoing respect for fundamental principles and rights. The qualification of “deferent” may express a similar approbation: if the Court has retained its constitutional position it has been because of its respect for the principal depositary of popular sovereignty.
The same qualifications can be expressed in a negative sense. By being strict the Court would be doing what it ought not to do. Strict is equivalent to invasive, even usurpative of legislative power. Alternatively, when showing condescension, the Tribunal would be failing in its duty: in the minds of those who express themselves in that way, deference would be an abdication of the important role of control over the basic features of the system that the Spanish people entrusted to the Constitutional Court.
- 20.
Declarations of inadmissibility are not included that (when not referring merely to formal irregularities) ruled that the complaint in question was “manifestly unfounded” (Art. 37.1 LOTC).
- 21.
Hence neither STC 36/1991, relating to the measures to be imposed on minors who commit penally sanctionable unlawful acts, nor STC 24/1993, on security measures applicable to those whom the previous Penal Code described as alienated (i.e. insane), are included in the account of judgments dealt with in this article. Likewise, challenges to laws regulating prisons are excluded: STC 72/1994 dismissed an objection of inequality in the military code regarding discharge of penalties through work; STC 94/1986 pondered the “possible violation of the non bis in idem principle (dealt with in Art. 25 of the Spanish Constitution), in the case of refusing the benefit of discharge of penalties by work to those sentenced or remanded in custody for an offense of breach of prison or other act of contumacy (Arts. 334 ff. of the Penal Code); the basis for disputation was that for the commission of this offense, the sentenced or remanded person can be punished with the penalty corresponding thereto, and at the same time, with the privation of the aforesaid benefit, applicable where appropriate in the serving of sentences imposed for other offenses” (FJ 1). Nor are the judgments on laws of process, or of doubtful process status, considered here, such as those regulating negative prescription (or statute of limitations): STC 157/1990 resolved the question regarding “whether the regulation made by the current Penal Code of the prescription of misdemeanours, with regard to the fixing, by Art. 113.6 of the Penal Code, of a brief lapse for prescription—two months—and the ordering by Art. 114.2 that the same should run from the paralysis of the proceedings, without distinguishing the causes responsible for the aforementioned paralysis, supposes, in view of the judicial circumstances at the time, a practical denial of justice, by producing a generalized prescription of misdemeanours” (FJ 3).
- 22.
I have not considered any weak challenge of a penal statute that is only resolved in judgment on account of accompanying some other more solid constitutional objections, or that in any case did not merit thorough attention by the Constitutional Court. Hence, in the constitutional remedies (“cuestiones de inconstitucionalidad”) at the origin of STC 234/1997—together with the objections of unconstitutionality in relation with the then Article 380 of the Penal Code (overruled in the case of the statute on alcohol testing) already resolved by STC 161/1997—the right to privacy was invoked: “the alleged unconstitutionality would be imputable, not to Art. 380 of the Penal Code, which does not regulate any kind of test—since it is limited to describing as an offense of disobedience the refusal to submit to the tests that are legally established for the purpose of establishing whether a person is driving under the effect of alcoholic drinks, drugs or any other psychotropic substance—but to the norm that regulates this type of test” (FJ 9). STC 160/1987 analyzed the compatibility with the principles of equality, proportionality and non bis in idem of the penal statutes sanctioning those who do not appear for, or refuse to perform, community service in substitution for military service (FJ 6), a problem that in essence was taken up again and analyzed in greater depth in STC 55/1996. STC 199/1987 challenged—on the principle of legality and the right to effective judicial guidance—the validity of foreign sentences for the purposes of considering the concurrency of recidivism in crimes of terrorism (FJ 5).
- 23.
Very significant in this respect is STC 111/1993, a judgment on an appeal for protection that considered that the exercise of actions proper to a profession not requiring an official academic degree could not be regarded as included in the category of “intrusismo” (illegal practice of a profession) as set forth in Art. 321.1 of the previous Penal Code.
- 24.
STC 67/1998, which addressed alleged discrimination regarding non-payment of family maintenance, is not, strictly speaking, a case of complaint against decriminalization by reduction of penalties against legally married couples. The ratio decidendi of the annulment of the precept does not lie in the fact that children born out of wedlock are not protected under criminal law, but in the fact of their being discriminated against in comparison with those born to legally married couples, so that the emendation could have consisted equally in extending the penal category to non-payment of maintenance to an unmarried partner and the children of their relationship, or in decriminalizing the non-payment of maintenance in cases of legally married couples.
- 25.
This was a system referred to as “of indications”—an expression rooted in thinking on criminal law, but of doubtful semantic precision, since what was involved was to permit certain types of cases, not to “indicate” them—which, as regards the nature of such indications, coincided with that in force until the approval of LO 2/2010, of March 3, on sexual and reproductive health and the voluntary interruption of pregnancy (establishing a system of deadlines).
- 26.
Since it cannot be maintained “that the complex regulation of recidivism does not permit citizens to comprehend it normally and to foresee, therefore, the consequences of their acts” (FJ 4). Note that the argument refers above all to the principle of legality. Nor does the Court consider that the aggravating circumstance supposes a double jeopardy (bis in idem) (FJ 9).
- 27.
Which, surprisingly, it regards as forming “part of the principle of legality” (FJ 4).
- 28.
Likewise, where there exists “a legislative presumption that in aggressions by a man towards a person who is or has been his legally married spouse or affective female companion there subsists a discriminatory intention, or an abuse of superiority, or a situation of vulnerability on the part of the victim” (FJ 11), but this seems, strictly, a denunciation of the violation of the presumption of innocence.
- 29.
One must insist on the difference between the judgment of proportionality of the norm, “that has as referents the benefits and costs of the norm questioned in terms of constitutional axiology”, and the analysis of proportionality entailed in the judgment of equality, which “compares the consequences of the cases differentiated” (STC 45/2009, FJ 7).
- 30.
The judgement on an appeal for protection [amparo] acknowledges “unequivocally the incompatibility of Art. 487 bis of the Penal Code then in force with the right to equality (Art. 14 of the Spanish Constitution)”.
- 31.
According to the Spanish legal code, an organic law must be passed by absolute majority in Parliament in order to be valid (Art. 81.2 of the Spanish Constitution). The types of law to be approved as organic laws include “those relating to the development of basic rights and public liberties, those approving Statutes of Autonomy and the general electoral regime and those others contemplated in the Constitution” (Art. 81.1 of the Spanish Constitution).
- 32.
According to its grounding in law, the tenor of Art. 222 of the previous Penal Code is not contrary to the said right [to strike], since “what is penalized is an attack against the security of the state”. The said precept considered “guilty of sedition […] those functionaries responsible for the performance of all kinds of public services or those of recognized and unpostponable necessity who, by suspending their activity, cause disturbances to the same, or, in any way, obstruct or disorder their regularity” and “those employers and workers who, with the intention of putting in jeopardy the security of the state, impairing its authority, or perturbing its normal activity, suspend or upset the regularity of work”.
- 33.
As STC 55/1996, expressively points out: “the relation of proportion that a statutorily defined criminal behaviour must maintain with the sanction assigned to it will be the fruit of a complex judgment of opportuneness on the part of the legislator”, who, “obviously, when establishing the penalties, lacks the guide of a precise table that relates univocally measures and objectives, and has to attend not only to the essential and direct aim of protection to which the norm responds, but also to other legitimate aims that it may seek to attain by means of the penalty and to the different ways in which it may operate and that could be catalogued as its functions or immediate ends: to the various ways in which the abstract cautioning of the penalty and its actual application influence the behaviour of the addressees of the norm—intimidation, elimination of private vengeance, consolidation of the general ethical convictions, strengthening of the sense of fidelity to the legal code, social reintegration, etc.—and what is classified doctrinally under the denominations of general prevention and special prevention. These effects of the penalty depend in turn on factors such as the seriousness of the behaviour that it is intended to dissuade, the actual possibilities of detection and sanction, and social perceptions regarding the `fit´ between crime and punishment. In the final instance, concerning the proportionality of a specific penalty, this Court cannot, in order to establish it, take as a reference an exact penalty, that would appear as the only possible concretion of the constitutionally required proportion, since the Supreme Law does not contain criteria from which that measure can be inferred” (FJ 6).
- 34.
I differ with Díez Ripollés (2008, pp. 223, 240 ff. 258 ff.) regarding the potentiality he attributes to the latter principle for the material control of legislative activity in the area of criminal law. I consider that its exiguous conceptual solidity and its consequently slight practical utility in constitutional jurisdiction, so well described by Díez Ripollés (p. 235 ff.), are due to an endogenous lack of substance as a limiting principle upon the legislator; these factors convert it, precisely, into a democratically perilous instrument in the hands of a Constitutional Court lacking in caution. I believe that the interdiction on arbitrariness has full sense for the control of the judicial organs as an expression of their subjection to the law. The arbitrariness of the legislator does not seem to be anything other than ignorance of the Constitution, and the latter needs to be specified in parameters of much greater precision, such as, for instance, the very principle of proportionality. In other words: the proportionality principle is one of the manifestations of the interdiction of arbitrariness.
- 35.
Critically, because of what it implies in terms of “attribution to the proportionality principle of a mere labour of guaranteeing fundamental rights”, Díez Ripollés (2008), pp. 248, 255.
- 36.
The contribution would have been greater if, in STC 136/1999 (Mesa Nacional de Herri Batasuna) the question had been focused, not as an excess on the part of the legislator in applying severe penalties upon less important acts of collaboration, but as an axiologically unreasonable judicial interpretation of the norm as embracing acts of collaboration such as the one brought to trial (sending a video of the ETA terrorist organization for the purposes of broadcasting as electoral propaganda on radio and television). On the utilization of the proportionality principle in jurisprudence, see De la Mata Barranco (2007), p. 217 ff.
- 37.
For the concrete arguments it sets forth, see the detailed study by Díez Ripollés (2008), p. 245 ff.
- 38.
Likewise: SSTC 161/1997, FJ 11; 136/1999, FJ 23; 60/2010, FJ 14, 16.
- 39.
Likewise: 161/1997, FJ 12; 136/1999, FJ 23; 60/2010, FJ 7; AATC 233/2004, FJ 3; 332/2005, FJ 3.
- 40.
I believe that this (juris)prudence shows more of an acceptable comprehension of the limits of constitutional control over the penal legislator than the serious reservations expressed by Díez Ripollés regarding the performance of the proportionality principle as a parameter of constitutionality (Díez Ripollés 2008, p. 256).
- 41.
This technique is usually referred to as a “blank penal norm”, which is quite equivocal, because the statutory provision seems to announce the solution to the problem of legitimation: we know that it contains a “blank”, but what is at stake is to see whether this is necessary, residual and can be easily filled; it is a matter, among other things, of elucidating whether the norm is “left blank”—or, in the words of STC 101/2012, “totally blank” (FJ 1).
- 42.
Hence, the Constitutional Court admits that “the technique that enables the profile of statutory offences to be filled out by means of a normative referral, constitutes a practice that […] from the point of view of conceptual orthodoxy may justify certain initial misgivings”. Nonetheless, “it is entirely necessary in a highly developed society, one that requires an extremely precise response regarding the limits that delineate lawful behaviour from that which not only is not lawful, but which calls for the most energetic and firm reaction provided for by the code of law, as is the penal sanction” (STC 24/1996, FJ 3). Thus, the requirements of the legality principle “do not suppose that only a descriptive and complete drafting in penal law of the types of behaviour codified as in fact criminally illicit is constitutionally admissible. On the contrary, incorporation in the type of normative elements (STC 62/1982, of October 15) is possible and the legislative use and judicial application of the so-called ‘blank penal laws’ is reconcilable with constitutional assumptions (STC 122/1987, of July 14): that is, of incomplete penal norms in which the particular conduct or the consequence under penal law is not exhaustively specified, so that it is necessary to refer to another different norm in order to complete them; with the proviso that the following requirements are satisfied: that the normative referral is express and justified in terms of the legal asset protected by the penal norm; that the law, besides stating the penalty, contains the essential nucleus of the prohibition and the demand for certainty is satisfied or, as stated in the cited ruling STC 122/1987, sufficient concretion is given, so that the conduct described as criminal remains sufficiently specified by means of the indispensable complement of the form to which the penal law is referred, and the guarantor function of the offense is in this way safeguarded with the possibility of knowing the act that is criminally censured.” (STC 127/1990, FJ 3; also SSTC 118/1992, FJ 2; 120/1998, FJ 5; 283/2006, FJ 8.).
- 43.
To use the adjective employed by the Court itself (for instance, STC 62/2008, FJ 5).
- 44.
The rulings were STC 59/2008, STC 45/2009, STC 127/2009 and STC 41/2010.
- 45.
See, in this respect (in greater detail), Lascuraín Sánchez (2013), p. 329 ff.
- 46.
According to Gómez Corona’s overall study (2009, p. 263 ff.), the percentage of rulings rejecting requests for constitutional control over a law is 48 %, not much lower than that revealed by the present study restricted to judgments on penal legislation (52 %). Among those upholding the request, the rate was significantly lower for interpretative rulings on penal law: 13 % as against 23 %. This author concludes that “in view of these data it can be affirmed that control by the Constitutional Court has been exercised, as a general rule, with moderation and self-restraint” and that “one can only acknowledge that the work of the Constitutional Court has been respectful as regards the position of the legislator” (pp. 284 and 287).
- 47.
An interesting counterpoint to this “doctrine of deference” can be found in the recent STC 60/2010, on the imposition of the distancing order. Its reasoning is: since criminal law is constitutionally more intrusive, affecting in a peculiar way constitutional assets and rights, its limits must be more intense and the work of control of constitutional jurisdiction more demanding. Thus, “in the institutional perspective proper to the delimitation of functions in respect of the penal legislator and this Constitutional Court, it must be specified […] that the very Constitution, far from submitting the action of the legislator to the same substantive limits irrespective of the object upon which the latter is projected or the types of decisions incorporated, contemplates more severe limits in the case of penal norms than in that of other legislative decisions, due, precisely, to the scope of the effects deriving from the former, since the more intense the restriction of constitutional principles—in particular, of the rights and liberties recognized in the constitutional text—the more demanding the substantive presuppositions of constitutionality of the measure that generates them” (FJ 7).
- 48.
- 49.
The latest reform bill did contemplate this possibility, offering the following wording for its article 39.1: “When the ruling declares unconstitutionality, it shall likewise declare the nullity of the norms that are challenged or questioned. Notwithstanding, in a reasoned way and in order to preserve the values and interests safeguarded by the Constitution, the ruling may declare solely unconstitutionality or defer the effects of nullity for a period that in no case shall exceed three years.”
- 50.
López Bofill (2004, p. 20) defines them as “judgments that declare the constitutionality of the contested legal norm but in which the normative content of the law is made subject to an interpretation that the Constitutional Court upholds as adequate in terms of the Constitution”; see also Díaz Revorio (2001, p. 25 ff.): “in the strict sense, only those which […] contain a ruling that, while affecting the normative content of a legal norm, leave its text unaltered, shall be deemed an interpretative judgment”). One of the most powerful reasons for issuing such rulings, according to López Bofill (2004, p. 317), as an alternative to the nullification of the contested legal disposition “is not so much the desire to protect a Fundamental Right as the need to maintain the penal (or administrative) sanction upon a particular conduct irrespective of the Fundamental Right”.
- 51.
This, according to López Bofill (2004, pp. 265, 279), is “a strategy for eliding the conflict of constitutionality, whether by minimizing controversy with the legislator […], or sweetening the destructive consequences of the declaration of unconstitutionality or nullity”. Besides, “with this ingenious strategy, the constitutional judges impute to the legislator their own constitutionally adequate interpretation of the law […]. The Courts arrive at the statement: ‘this is the interpretation of the legal norms that the legislator holds in esteem when taking into account the constitutional mandates, whose exegesis corresponds to us in the last resort’”.
- 52.
Since in all these decisions the Court “alters the normative content of the law”. In all these decisions it “contributes something ‘new’ to the comprehension of the law that was not there previously”. Hence, according to López Bofill (2004, pp. 21, 320) the employment of this recourse “should be proportional to the preservation of other legal assets whose protection under criminal law is rooted in constitutional terms”.
- 53.
Díaz Revorio (2001, p. 222) considers that such cases do not offend the principle of legality. Decriminalization also affects legal certainty, but in a relevantly less intense way. It does so, in the first place, because decriminalization constitutes a negative limitation on penalization: because the cognoscibility of what is no longer penalized is cognoscibility of what is still sanctioned. In the second place, it does so because penal norms do not only restrict liberty with threats and prohibitions, but do so with the intention of preventing harmful forms of behaviour and thus safeguard legal assets. Penal norms are instruments for protecting the principal social assets and in that sense the knowledge of such protection contributes to legal certainty, which is the foreseeable nature of the behaviour of others in which we may find ourselves involved. The knowledge that others may not injure us, insult us or raid our computer records forms part of legal certainty, likewise that the prohibition of such conducts is not just any prohibition, but the most forceful possible: a penal prohibition.
One might, in fact, refer both to a broad interpretation and another stricter one of the Spanish phrase seguridad jurídica. According to the former, seguridad jurídica means legal certainty: i.e. cognoscibility of what has been ordained, and foreseeableness of the consequences that public regulations assign to the behaviour of citizens. However, the phrase can also be taken—according to a common understanding of the word seguridad—to mean legal security or safety: i.e. freedom from “danger, harm or risk”. Within the concept of legal certainty it is worth distinguishing an unavoidable content, not to be subordinated to other values or interests, which is that constituted by the foreseeableness for citizens of the legal consequences of their behaviour that would be relevantly negative for them.
References
Aguado, C. (1999). El principio de proporcionalidad en Derecho Penal. Madrid: Edersa.
Alexy, R. (1998). Derecho y razón práctica (2nd ed.). Mexico City: Fontamara.
Atienza, M. (2011). Dos versiones del constitucionalismo. Doxa, 34.
Bayón Mohíno, J. C. (2000). Derechos, democracia y Constitución. Discusiones: Derecho y justicia constitucional, 1.
Bayón Mohíno, J. C. (2010). Democracia y derechos: problemas de fundamentación del constitucionalismo. In M. Carbonell & L. García Jaramillo (Eds.), El canon neoconstitucional. Madrid: Trotta.
Bernal Pulido, C. (2007) El principio de proporcionalidad y los derechos fundamentales (3rd. ed.). Madrid: CEPC.
De la Mata Barranco, N. (2007). El principio de proporcionalidad penal. Valencia: Tirant lo Blanch.
De Lora Deltoro, P. (1998). La interpretación originalista de la Constitución. Madrid: Centro de Estudios Políticos y Constitucionales.
De Lora Deltoro, P. (2000). La posibilidad del constitucional thayeriano. Doxa, 23.
Díaz Revorio, L. (2001). Las sentencias interpretativas del Tribunal Constitucional. Valladolid: Lex Nova.
Díez Ripollés, J. L. (2008). El control de constitucionalidad de las leyes penales. In G. Valdés et al. (Eds.), Estudios penales en homenaje a Enrique Gimbernat (Vol. I). Madrid: Edisofer.
Ferreres Comella, V. (2002). El principio de taxatividad en materia penal y el valor normativo de la jurisprudencia. Madrid: Civitas.
Ferreres Comella, V. (2010). El control judicial de la constitucionalidad de la ley. El problema de su legitimidad democrática. In M. Carbonell & L. García Jaramillo (Eds.), El canon neoconstitucional. Madrid: Trotta.
Ferreres Comellas, V. (2011). El Tribunal Constitucional ante la objeción democrática: tres problemas. In Jurisdicción constitucional y democracia. Madrid: Centro de Estudios Políticos y Constitucionales.
García Amado, J. A. (2004). La interpretación constitucional. Revista Jurídica de Castilla y León, 2.
Garzón Valdés, E. (1993). Derecho, Ética y Política. Madrid: Centro de Estudios Políticos y Constitucionales.
Gómez Corona, E. (2009). El control de constitucionalidad de la ley en España. Análisis de la jurisprudencia constitucional. Revista de Derecho Político, 74.
González Beilfuss, M. (2003). El principio de proporcionalidad en la jurisprudencia del Tribunal Constitucional. Pamplona: Aranzadi.
Laporta, F. (2004). Las dos vías para la reforma de la Constitución. Claves de la Razón Práctica, 45.
Lascuraín Sánchez, J. A. (1998). La proporcionalidad de la norma penal. Cuadernos de Derecho Público, 5.
Lascuraín Sánchez, J. A. (2009). Sólo penas legales, precisas y previas: el derecho a la legalidad penal en la jurisprudencia constitucional. Pamplona: Aranzadi.
Lascuraín Sánchez, J. A. (2010). La libertad de expresión tenía un precio (Sobre la STC 235/2007, de inconstitucionalidad del delito de negación del genocidio). Revista Aranzadi Doctrinal, 6.
Lascuraín Sánchez, J. A. (2013). ¿Son discriminatorios los tipos penales de violencia de género? Comentario a las SSTC 59/2008, 45/2009, 127/2009 y 41/2010. Revista Española de Derecho Constitucional, 99.
Lopera Mesa, G. P. (2006). Principio de proporcionalidad y ley penal. Madrid: CEPC.
López Bofill, H. (2004). Decisiones interpretativas en el control de constitucionalidad de la ley. Valencia: Tirant lo Blanch.
Rawls, J. (1971). A theory of justice. Cambridge: Harvard University Press.
Revenga Sánchez, M. (2005). Notas sobre justicia constitucional e interpretación de la Constitución (o en defensa de la Constitución como diálogo). Teoría y Realidad Constitucional, 16.
Villaverde Menéndez, I. (2002). Concepto, contenido, objeto y límites de los derechos fundamentals. In La democracia constitucional. Estudios en homenaje al Profesor Francisco Rubio Llorente (Vol. I). Madrid: CEPC.
Viver i Pi-Sunyer, C. (2006). Derecho a la tutela judicial efectiva sin indefensión. In C. Viver i Pi-Sunyer (Ed.), Jurisdicción constitucional y judicial en el recurso de amparo. Valencia: Tirant lo Blanch.
Waldron, J. (1999). Law and disagreement. Oxford: Clarendon.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2016 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Lascuraín, J.A. (2016). Constitutional Control of Criminal Law. In: Nieto Martín, A., Muñoz de Morales Romero, M. (eds) Towards a Rational Legislative Evaluation in Criminal Law. Springer, Cham. https://doi.org/10.1007/978-3-319-32895-9_12
Download citation
DOI: https://doi.org/10.1007/978-3-319-32895-9_12
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-32894-2
Online ISBN: 978-3-319-32895-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)