Statutory Analogy in Criminal Law: Prohibition or Permissibility

The ban on analogy when describing specific crimes in the administration of justice is considered as one of the guarantees of the principle of legality. The theoretical construct about the effectiveness of the analogy of law, which justifies the weakening of established guarantees over legal certainty, is subjected to critical analysis. The principle of legality is contained both in the constitutional norm and in the criminal norm; therefore, it is not only a requirement of legal certainty, requiring only the possibility of prior knowledge of crimes and punishments, but also a political guarantee that a citizen cannot be subjected by a judicial body to pu­nishments that the collective the will of the people does not accept, that is, it is a constitutional principle and a fundamental principle of criminal law. The prohibition of analogy means that the judiciary cannot act as a legislator. Analogy is prohibited as a means of creating and expanding criminal norms, as well as increasing punishment and security measures, which is a guarantee of the administration of justice. To avoid this, the law must be written in as clear and precise a manner as possible, the author argues that the “lex stricta” imposes a certain degree of precision on the criminal law and excludes analogy in the qualification of the crime and the application of punishment.