El principio de humanidad de las penas como límite constitucional al legislador penal
Title (trans.)
The principle of humane punishment as a constitutional limit on criminal law lawmakersAuthor
Mínguez Rosique, MarinaAdvisor
Pérez Manzano, MercedesEntity
UAM. Departamento de Derecho Público y Filosofía JurídicaDate
2019-10-14Subjects
Tribunal Europeo de Derechos Humanos - Jurisprudencia - Tesis doctorales; Pena, Teoría de la - Tesis Doctorales; Garantías constitucionales - Tesis doctorales; Pena de muerte - Estados Unidos - Tesis Doctorales; Presos - Derechos - Estados Unidos - Tesis Doctorales; Penas privativas de libertad - Europa - Tesis Doctorales; DerechoNote
Tesis doctoral inédita leída en la Universidad Autónoma de Madrid, Facultad de Derecho, Departamento de Derecho Público y Filosofía Jurídica. Fecha de Lectura: 14-10-2019Esta tesis tiene embargado el acceso al texto completo hasta el 02-04-2026
Esta obra está bajo una licencia de Creative Commons Reconocimiento-NoComercial-SinObraDerivada 4.0 Internacional.
Abstract
The doctoral thesis presented here is entitled “The Principle of Humane Punishment as a Constitutional Limit on Criminal Law Lawmakers.” Of all of the branches of a legal system, criminal law is one of the most closely linked to the Constitution, since it is the Constitution that establishes the values that will guide that system, defining the scope of criminal law and laying the foundation and limitations on the acts of public authorities.1
A series of limitations is necessary due to the paradoxical nature of criminal law, since it provides a mechanism for protecting human rights by encroaching on other human rights, and the legitimacy of criminal law depends on the balance between conflicting interests: the rights to be protected (or denied) vs. the rights of the offender.2 Thus, once we accept the “costs” associated with criminal law due to its very nature, the existence of mandatory restraints act to justify the system itself.
For that reason, in states that have adopted a social and democratic system based on the rule of law,3 lawmakers are not totally free in their task of defining the content and duration of criminal sentences, but rather must confine themselves to a space limited by several constitutional principles such as the principle of humane punishment or the principle of proportionality. These constitutional principles are none other than the reflection of a system of values traditionally defended by liberal criminal theorists to regulate and limit the ius puniendi.4
In that regard, the aforementioned principles not only guide criminal policy, but also constitute actual constitutional mandates for criminal law lawmakers while likewise comprising what is known as constitutional criminal law.5 The existence of such mandates in the Constitution, whether express or implied, necessarily compel lawmakers to comply with obligations and prohibitions derived from those principles, such as, for example, ensuring that the sentences they impose do not in any way affect the offender’s dignity, that their objective is rehabilitation, or that their duration be predetermined and proportional
Nevertheless, despite being principles that are widely acknowledged as such among criminal law scholars and are known to the public at large, the standard of protection for these principles (that is, their scope and content) is not clearly defined, thus making it difficult to determine the limits by which lawmakers are bound. This is easily observed, for example, in the case of the principle of humane punishment whose limits do not depend solely on constitutional guidelines, but also on social values that may vary depending on the context and, thus, may be subject to change over time.
When considering principles, one runs the risk of focusing on the merely abstract or inapprehensible. For that reason, with the legal-penal academic debate and the valuable contributions of moral and political philosophers as a backdrop, this thesis seeks a different perspective, focusing on the practical application of the principle of humane punishment on the part of national and international constitutional courts. The principle is examined in its practical dimension to determine the real impact it has had as an effective limit on lawmakers. Consequently, this thesis is devoted to analyzing the case law of those courts to identify the content assigned to that principle, while pointing out disparities that may exist between the protection actually provided and its standard.
Thus, this research provides and overview of the rulings of the Spanish Constitutional Court and the European Court of Human Rights, as well as an analysis of the case law of what has been called (with reservations) “the world’s oldest constitutional court”: the Supreme Court of the United States; the court that has most extensively been called upon to apply this principle and that has offered possible interpretations not only as a result of its more than two centuries of existence, but also due to its double function as ordinary and appeals court, and as the maximum interpreter of the US Constitution. Thus, the Supreme Court serves as a model for analyzing the principle of humane punishment in its historical dimension and, ultimately, for determining the role the principle has played and how it has actually been applied in practice.
Commencing, therefore, with the application that these courts have made of the principle of humane punishment, my initial intention is to describe the content they have assigned it. But this description is merely the starting point for determining the common criteria that endow the principle with real and effective content, enabling it to act as a clear limit on lawmakers. To do so, this practical standard will be analyzed from a critical perspective, attempting to determine whether it can have a broader practical application than the courts have afforded it to-date. Thirdly, the ultimate objective is to determine the content that should be assigned to this principle. This issue will be addressed in Chapter V
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