How judges are bound by the legal definition of the crime

Abstract

In the late 1990s, Spanish constitutional case-law developed a carefully constructed doctrine establishing that, as part of the legality principle, judges are bound by the legal definition of the crime. The classic dilemma concerning the boundary between legitimate and necessary judicial interpretation, on the one hand, and the proscribed judicial creation of offences and penalties, on the other (Sect. 2). That constitutional canon was welcomed greatly by the doctrine, but raised some partial controversy and left other points for development (3). The aim in this work is to shed light on both aspects-to explain that controversy and to advance in the canon-and it will to do so in two jurisdictions of human rights: that of the European Court, which is binding upon us (4), and that of the Inter-American Court, whose enlightenment will be compared and will move us to emulation (5).