Identifier: TFG:157
Authors: Osinaga Lozano, Itziar
Abstract:
The purpose of this study was to solve and test the hypothesis that in between equivalent offences when concurring the same modifying elements of the punishment, the ultimate punishment imposed is different depending on the order in which the elements are applied in the punishment determination. It calls into question, too, if there is a pre-established order when individualizing the punishment. To do this, it was conducted an analysis of relative frequencies of different groups, each one including the same offences and it was observed the order that the judge used during the legal individualization of punishment. From the data obtained it was possible to identify a common order and, in a minority group of judgments, an order different than the majority rule. The consequence of appreciating a different order is the imposition of a different punishment. These results confirmed the hypothesis. What is more, it revealed that principles of equality and legal certainty enshrined in the Spanish Constitution can be potentially affected. Thus, the work includes a legal evaluation of the results in line with both principles mentioned before and with the fundamental duty to motivate final judgment in order to safeguard the effective judicial protection. Finally, legal actions are indicated to fight against these situations. It should be noted that the goal of this project is not a doctrinal study but scientific proof of a hypothesis, to highlight an actual situation of silent violation of basic principles of the Spanish Constitution.
Repositori URV