CRIMINAL JURISPRUDENCE AND FREEDOM: A CRITIQUE OF SOME RECENT DYSFUNCTIONS

Abstract

Th e principle of legality requires that the constitutional requirement of certainty includes the judges as a target group. Th e interpretation of a criminal provision that goes far beyond their wording or the sharp abandonment of a legal precedent hinders the predictability of the legal answer. Furthermore, this fact does not only undermine one of the guarantees included in the aforementioned principle, but it also curtails the right of freedom. Taking into account the magnitude of such eff ects, the ordinary jurisdiction should gain a greater commitment in the defense of fundamental rights and assume that such protection is the only way to legitimate jurisdictional action under the rule of law.