In the specific case of criminal law, we must remember that the doctrine treats the application of criminal norms as “the last relationship”, after all, this institution should only be mentioned if the other rules of the legal system are unable to resolve the agreement. In criminal law, principles are the fundamental values that inspire its creation and application by limiting their scope, how they should be used, the thoughts on which the issue should be based, among others. These values should be taken into account by legislators in law-making and by law enforcement authorities in the interpretation and application of legal and criminal norms. Also called the principle of strict legality, it comes from the Magna Carta of 1215 by John Landless. According to him, the law, and only the law, is the immediate formal source of criminal law, so that it alone can create crimes and determine the respective penalties. Art. 5º All are equal before the law, without distinction of any kind, and guarantee to Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property with the following words: We have already written here on the blog of the Master Juris about the main criminal principles. The idea of this article, however, is to analyze in more detail the constitutional principle of legal restriction. In this political dimension, we can clearly see that criminal law and its codification are expressed as a first-generation right, protecting people from the state`s capacity for action. The provisions referred to in art. 5 para.
II of RC/88 therefore provides that no person is obliged to do or abstain from doing otherwise than by operation of law. Therefore, the obligations of individuals can only be created by normative means generated in accordance with an appropriate legislative procedure. With regard to the principle of legality, it is contained in Article 5, point II, of the Federal Constitution: Whatever the situation, it is important to note the differences between the principles as evidence. With regard to the legal reserve, we have seen its definition above. The principle of individualization of punishment, expressed in Article 5, XLVI, of the FC, each individual should receive the punishment that suits him, according to the specific points of his behavior in the behavior, in this sense takes into account the subjective aspects of the agent, which should be analyzed in the specific case. This principle is developed in three areas of legislation, justice and administration. In the Legislative Assembly, this happens when the legislature sets maximum and minimum penalties and when they can be tightened. In the Court of Justice, it supplements the legislation because it cannot be extremely precise and cannot provide for all the concrete life situations which may or may not increase the penalty.
In administration, when the sentence is executed, the State must pay attention to each individual in a unique way through the form of treatment of the sentence or other system in which the objective of punishment, retaliation, prevention and rehabilitation is observed. There is nothing unconstitutional about the open criminal type. With respect to the phrase “without good reason”, it is impossible for Parliament to cover all the conditions that define “just reason”, which requires the creation of the open criminal type. The entire Brazilian legal system has a source of principles that must be followed, similar to criminal law, we will analyze in the light of the above the principles of legal restraint and individualization of the sentence. The application of the sanction, which is clearly of greater interest and relevance to the defendant, could not be otherwise, since conditions are also necessary for it to take place at a fair level. The last explanation we have seen above concerns the legal basis of the principle of legal coercion: the law must be exhaustive and describe with the broadest possible content the minimum content of criminal conduct. Article 225 Everyone has the right to an ecologically balanced environment, well used by people and essential to a healthy quality of life, and imposes on public authorities and the community the duty to defend and preserve it for present and future generations.§ 3º Behaviour and activities considered harmful to the environment, subject offenders, natural or legal persons, to administrative sanctions and sanctions, as well as to the obligation to make good the damage caused. It is therefore concluded that the principle of legal coercion obliges the State to act within the framework of strict legal requirements in order to legitimize any conviction of the accused, which demonstrates precisely the need to enforce the sentence, which we can call mandatory compliance requirements for prosecutions. In view of these assumptions, it can be assumed that the limitation of these constitutional rights or guarantees is justified only if there is a criminal offence or a threat of such an order, so that the intervention of criminal law and the application of its legal consequence – the criminal sanction – are absolutely necessary. Creating laws alone is a time-consuming act involving multiple bureaucracies. If it were up to the legislature to describe each conduct in detail, it would be impossible to create open types and empty penal norms, as well as to explain any conduct that would lead to a culpable crime.
Therefore, the sanction must be fair, of nature and accuracy and appropriate to the case, which obviously requires a prior legal determination. The indoctriator solves the difficulty of differentiation on the basis of positive constitutional law in view of the power that the Constitution grants to the legislative power. Therefore, if this concession consists of a broad and general power over all kinds of relations (…), we have the principle of legality. However, if the Constitution reserves certain contents to the law on a case-by-case basis, it is the principle of legal constraint (SILVA, José Afonso. Positive Constitutional Law Course. 22nd ed. São Paulo: Malheiros, 2000. p. 421.). Comments: FALSE. Although in favour of the accused, the Federal Constitution prohibits the adoption of provisional measures, particularly in criminal, criminal and criminal matters. This is governed by Article 60 sec.
1 CF: “Art. Art. 62 § 1 – The provisional measures in matters are whether: I – as regards: (b) criminal law, criminal procedure and civil procedure; ». It should be noted that the Supreme Court takes a position that violates the constitutional text and allows the issuance of PM if done in favor of the defendant (RHC 117.566/SP, 2013). “Ultima ratio means `last reason` or `last resort`. It is an expression of Latin origin and is often used in law. It is said that the criminal law is the last ratio, that is, it is the last resort or instrument used by the State in situations of suppression of criminal acts, only when it is not possible to apply another type of law. In legal terms, a criminal offence is conduct characterized by criminal law, which is punishable by imprisonment or imprisonment alone, alternatively or cumulatively punishable by a fine (art. 1. Act on Introduction to the Criminal Code) and misdemeanours, the offence to which the law belongs, solitary confinement, simple imprisonment or a fine, or both. alternative or cumulative. Obviously, all this leads to criminally protected legal interests, all of which are of great importance to the human being, such as life, liberty, property, dignity, etc.
Indeed, the criminal law will never go back to punish past facts, unless it serves the advantage of the accused, and therefore only conduct committed after the validity of the typification of criminal behavior will be punishable. On the other hand, too harsh a sentence becomes unjust because there is no way to admit that a person pays with his own freedom for a longer time than necessary to punish him for his illegal act. It follows from the legal basis of the principle of legal reserve. Tax activity is the express delimitation of onerous conduct and concerns safety and the determination of conduct. NOTE: The issue of legal coercion and interim measures is very common. 60 – The principle of legal reserve is equivalent to the principle of legality in so far as any legal order requiring specific conduct must be of one of the types provided for by the legislative procedure. 22. It is for the European Union to legislate privately on: I – civil, commercial, criminal, procedural, elective, agricultural, maritime, aeronautics, space and labour law; […] One paragraph. Complementary law may empower States to legislate on certain matters relating to this article.
The principle of legal coercion is enshrined in article 5, item XXXIX, of the Federal Constitution and article 1 of the Criminal Code: It also prescribes the analysis of the two types of legal reserve, according to the direction of the dominant doctrine: Therefore, a decree of a prefecture prohibiting the entry of men into a certain place of government without long trousers is Law within the meaning of Article 5, point II of the Federal Constitution. However, for criminal purposes, the term “law” described in Article 5XIX of Article 5 of the Magna Charta requires a law in the strict sense, that is, a law constituted according to the requirements of the legislative procedure. There are reasons for this: first, the legislator would describe each species and its punishment in detail. Second, empty penal norms, culpable crimes and overt types would not be possible: imagine if legislators had to legislate on all illegal narcotics and update this list every time a new substance appears.