A dialogue between courts. The case-law of the European court of human rights and the Spanish constitutional court on the principle of legal certainty

Abstract

Art. 7 ECHR and art. 25 of the Spanish Constitution (SC) guarantee the principle of rule of law regarding punishments; a similar wording may be found in art. 49 CFREU. All these norms have been interpreted in the sense of prohibiting the punishment of any offense, or the application of any punishment, in the absence of a prior, written, strict, and precise legal norm. But there is a different interpretation about the sense of the principle of legal certainty into both articles. In the case of Spanish art. 25, the Spanish CC considers that the principle of legal certainty is an objective rule. The strict legal reserve granted in the art. 25 SC contain a mandate to the legislator: the criminal law must be clear and foreseeable in its text and sense. Otherwise, art. 7 ECHR and its interpretation by ECHR its different. The ECHR interpret the norm like a rule about the subjective foreseeable of the criminal consequences of the individual behavior. The important in this cases, is, of the individual could know and foresee the criminal consequences of his behavior. Nevertheless, the Spanish CC has understood that the legal certainty is a mandate to the legislator, not to the judge. The legislator must be reasonable clear in the criminal law when it describes criminal behavior and its punishment. This work analyses both paradigms and their differences and possible relationship.