The application of the principle of legality in the face of blank criminal rules

Abstract

Article 5, item XXXIX, of the Federal Constitution provides that there is no crime without a previous law that defines it, nor a penalty without prior legal coercion. The provision enshrines the principle of strict legality or legal reserve of law in the criminal sphere, determining that only the law can describe crimes and impose penalties. In spite of this assertion, norms are identified in the country's penal legislation in which this action does not derive exclusively from legislative action. These are the so-called heterogeneous blank penal rules. On these, the present work is dedicated to the analysis and study of the constitutionality and consequent legitimacy of the State's criminal action in the face of crimes whose concept does not have all of its elements described in law. For the elaboration of the work, the deductive scientific method was used, through bibliographic research and literary reviews.