¿irretroactividad de las variaciones jurisprudenciales desfavorables en materia penal?

Abstract

In the doctrinal writings, the possibility of extending the ban on retroactivity of the penal law to judicial practice variations —that are unfavorable to the criminal and that lead to punishing incidents which, at the moment of their occurrence, were not severely penalized o were not penalized at all by the courts the way it was intended at the time of their trial— is discussed. In favor of such a possibility, some arguments of a methodological-juridical, sociological-juridical, historical-political nature have been put forward, as well as claims that aim at grounds for the existence of the irretroactivity principle in the penal laws. Against it, literality of the substantive law, some aspects of juridical methods, drawbacks pertaining to lawsuits, the abandonment of the restrictivity principle, and the stay of proceedings that the above would mean, have been cited among other reasons.   The article discusses each of these arguments and concludes that it is not only possible, but also necessary, to enforce the retroactivity ban upon unfavorable judicial practices, whereby the in bonam partem analogy can be employed. Likewise, an analysis of the scope that should be given to the extension of this irretroactivity principle and a reference to the refusal of the judicial practice to accept it are presented.