3
or omission, was not expressly and unequivocally defined by law as a
punishable offense (…).” This principle has also been adopted in the
most important instruments of International Human Rights Law
(Universal Declaration of Human Rights, Article 11(2); American
Convention on Human Rights, Article 9, International Covenant on Civil
and Political Rights, Article 15).
45.
The nullum crimen nulla poena sine lege praevia
principle requires not only that criminal offenses be prescribed by law,
but also that the prohibited conduct be clearly specified in the law. This
is known as the requirement of specificity, which prohibits the
enactment of ambiguous criminal legislation and which, under our
Constitution, is an express obligation, pursuant to Article 2(24)(d),
which provides that the statutory definition of the criminal conduct
must be “express and unequivocal” (Lex certa).
46. (…) This “lex certa” requirement may not be understood,
however, as a condition requiring that legal concepts be drafted in
perfectly clear and precise language.
(…)
49.
In this context, Criminal Law admits the existence of
open-ended definitions of crimes which, on account of the lack of
specificity, particularly regarding axiological concepts, delegate the
task of supplementing them to the courts through statutory
construction (in bold in the original).
63. (…) In other words, the interpretation that excludes all
reference to the responsibility or culpability of the individual from the
definition is unconstitutional. Therefore, the courts may not convict a
person, under Article 2 of Decree-Law No. 25.475, only on the basis
that the legal interests specified therein have been damaged or put at
risk, without regard to culpability.
64.
The principle of culpability is a guarantee and, at the
same time, a limitation on the punitive power of the State; therefore,
the applicability of Article 2 of Decree-Law No. 25.475 requires that the
person acted with intent in infringing the legal interests specified in the
criminal provision. Furthermore, the prohibition against punishment
that is based only on strict liability is provided for in Article VII of the
Introductory Title of the Criminal Code, pursuant to which “punishment
requires the culpability of the offender. Any sort of strict liability is
strictly prohibited.”
65.
Consequently, the Court finds that the implied rule
derived from the phrase “any person who causes, creates or
maintains” is unconstitutional insofar as it does not consider the
subjective element - that is, the offender’s intent as the element