Towards a Re-Principled Criminal Law (original) (raw)
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When it comes to the constitutionalisation of criminal law, a distinction must be made between the mere constitutional promotion of criminal law guarantees and the constitutionalisation of full criminal law. The latter can be supported by promoting a number of positions in criminal law theory and classifying different regulations of criminal offences as unconstitutional. If this endeavour can then get a majority in the constitutional court of a given country, it will be possible to bypass the legislative majority and shape criminal law in a particular direction. In this regard, the Supreme Court of Canada in particular has proven to be a partner in the expanded constitutionalisation of criminal law. Therefore, after analysing constitutionalisation on a more modest scale, which is more general, the particular analyses should begin with Canada. Then the analyses should be continued with the Germans, who were also exemplary in this area, although it must be pointed out in advance that an increased constitutionalisation is less to be found in the decisions of the German constitutional judges than in the intellectual products of activist professors of criminal law. However, since they are influential in criminal legal science in a number of European countries, including Hungary, it is worth taking a closer look. Finally, I conclude this section by examining constitutionalisation efforts that have emerged in Hungarian criminal law. In most countries where constitutional adjudication exists, the constitutionalisation of criminal law means that the guarantees traditionally developed in criminal law theory have been raised to the level of constitutional guarantees. The observation of these guarantees is checked by the constitutional judges both at the level of legislation and the judicial application of the law. The most important of these are the principles of nullum crimen sine lege and nulla poena sine lege; they ensure that only acts that are deemed to be criminal offences by law at the time when they are committed can be punished and would only be punished with the penalty prescribed at that time. In a broader sense, these safeguards prohibit retroactive effect across the legal system, but the severity of criminal sanctions in this area has also resulted in a stricter guarantee system. In this way, the prohibition of analogy in criminal law derives from these principles, since in the context of a modern world that strives for predictability, it would be intolerable if, using an analogy, the judge came to the conclusion that an earlier act committed by someone was a crime. This leads to the prohibition of judicial customary law in this area, if it is used to expand criminal liability in a way that it contradicts the purely grammatical meaning of the relevant legal provision. While both analogy and judicial case law are used in most branches of law today, these are legal techniques which are not possible due to the severity of criminal sanctions. These principles, which have been transformed into constitutional guarantees, also require the laws to be the precisely defined, the lack of which is not unconstitutional in other areas of law. Another such principle of criminal law raised to the status of constitutional guarantee is the presumption of innocence, according to which only persons who were found guilty by a final court decision can be considered guilty and be punished. The same principle applies to the right to defence, which guarantees the right to defend the suspect as a constitutional guarantee.
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