Certainty and uncertainty in criminal law and the ‘clarity of norms’ doctrine

Ficsor, Krisztina (2018) Certainty and uncertainty in criminal law and the ‘clarity of norms’ doctrine. Hungarian Journal of Legal Studies, 59 (3). pp. 271-289. ISSN 2498-5473

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Abstract

Abstract The principle of legality includes numerous requirements which guarantee that criminal law and its application meet the demands of the rule of law and legal certainty. One of these requirements is maximum certainty according to which the rules of criminal law must be defined in a clear and precise way in order to make criminal law understandable and predictable for citizens. In the practice of the Hungarian Constitutional Court this requirement is called the ‘clarity of norms’ doctrine. However, the theoretical content of this doctrine is obscure and is also ambiguous in the practice of the Constitutional Court. It is also a problematic phenomenon in the Hungarian judicial practice that the principle of maximum certainty is treated as a mere linguistic issue. Judges try to solve criminal cases in which criminal laws are uncertain by searching for the meaning of words in dictionaries and do not tend to take into consideration moral or justificatory reasons behind the relevant criminal law. The Author throws light on the above mentioned problematic elements in the Hungarian legal practice and makes efforts to suggest a theoretical solution for these problems.

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