De la legalidad penal a la juridicidad proporcional como criterio de limitación de la potestad punitiva

Resumen

This doctoral thesis addresses the analysis of structural incapacities of Criminal Law to act as a limitation to punitive power. On the basis of the verification of such incapacities, it is proposed that it is proportionality, in the sense that it was unleashed by the German constitutional jurisdiction, that it could act effectively as such a containment device for the punitive power of the State. The adoption of proportionality as a statute of limitation of the punitive power requires its adaptation to conceptual grounds of the Criminal Law, giving rise to what is proposed to be called proportional lawfulness. The adoption of proportional lawfulness requires, in any case, acceptance of the premise that the criminal prohibition contains a primary norm or conduct norm that emanates from the offence description by law, as well as a consequence that emanates from the secondary norm that complements the first one, are irrelevant in fundamental rights. By general rule, a forbidden criminal conduct falls within the scope of freedom or other fundamental rights. It is accepted to correct this plan, it can be concluded that, as interference, the criminal prohibition must comply with the standards of proportional lawfulness.