Erosion of the principle of legality in the contemporary criminal justice system: diagnosis and solution proposals

The project is based on the premise that the principle of legality is currently undergoing a continuous process of erosion in the Spanish criminal justice system as a result of various dynamics of transformation in relation to the public institutions closest to the guarantees that derive from its meaning, that is, the legislature and the judiciary. However, the application of the law in practice is still largely carried out as if the old paradigm of criminal law as ultima ratio and lex certa were still in force, with the courts as mere interpreters of the law and fundamental rights acting only as limits to punitive power. This situation of dissonance makes it difficult to identify the problems and to assess their magnitude, as well as to reflect on whether it is necessary to rethink some of the traditional categories and rules of operation and to put forward, if necessary, proposals for improvement.

Acronym

EROLEG

Reference code

PID2021-123441NB-I00

Description

For this reason, the project intends, in the first place, to make a diagnosis of the current situation, placing the Spanish reality in the context, at least, of the rest of Europe, in order to assess whether our case presents special particularities or reproduces general trends that can also be observed in our neighbours. To this end, the work is structured around two differentiated axes:

- To analyse the specific problems of legality of both the general part and the special part of criminal law, not only in current legislation but also in the proposals for criminal reform that will be processed or approved during the life of the project (Responsible Researcher: Clara Viana Ballester).

- Analysing the relationship between the legislature and the judiciary in the jurisprudence of the high courts (Supreme Court, Constitutional Court, ECHR), paying special attention to the interpretation of the guarantee of criminal legality by the Constitutional Court as a mechanism for the protection of fundamental rights, the legal basis of the positive obligations of criminal incrimination derived from human rights, and to the conflicts of jurisdiction between the courts and the legislature (Responsible Researcher: Lucía Martínez Garay).

Secondly, the research also aims to offer proposals to alleviate or redirect the problems detected that offer possibilities of being implemented. The investigation that we intend to carry out in this project would consist, in short, in: a) answering the question of what is the meaning of the sense of guarantee of the principle of legality as a fundamental right, in this panorama of accelerated normative change, deficient legislative technique and protagonism of judges, and in a context in which many of the factors that result in its erosion are said to be inspired, directly or indirectly, precisely by a claim for better protection of fundamental rights through criminal law; and b) in determining what possibilities there are within the law to respond to this challenge.

Principal investigators: