Nullum Crimen, Nulla Poena Sine Lege
Feuerbach's formula sets the firmest limit on the power to punish. In Spain, Article 25.1 CE and Article 1.1 CP embed this guarantee.
Four guarantees
The principle breaks into four distinct guarantees:
| Guarantee | Content |
|---|---|
| Criminal | No conduct is an offence without a prior statute |
| Penal | No penalty may be imposed unless fixed by statute |
| Jurisdictional | Penalties require a competent court and due process |
| Enforcement | Sentences must follow lawful execution rules |
Requirements of the statute
The underlying statute must satisfy four conditions:
- Lex praevia: the law must precede the conduct. Laws that favour the accused do have retroactive effect under Article 2.2 CP.
- Lex scripta: the law must be written statute. Penalties restricting fundamental rights require an organic law.
- Lex stricta: judges must apply criminal laws strictly. This bars analogy against the accused, though the Code allows an analogical mitigating circumstance.
- Lex certa: provisions must be clear and precise. This duty binds the legislator, not merely the trial judge.
Non bis in idem
No one may be punished twice for the same wrongful act. The Constitutional Court derived this rule directly from Article 25.1 CE.
The prohibition applies when three elements coincide:
- The same subject
- The same facts
- The same foundation (the legal interest protected)
Dual sanctions are barred if they share the same legal interest. In practice, criminal trials take precedence over administrative proceedings for identical facts.
Common pitfall: stating that criminal law is never retroactive. It is never retroactive against the accused. Milder reforms apply retroactively to existing sentences.