Peligrosa irretroactividad y retroactividad para los peligrosos o socialmente indeseables

Abstract

In this paper, it is made a comparative study of two cases which were prosecuted before the European Court of Human Rights: “M. versus Germany” and “Del Río Prada versus Spain.” Both of them deal with a similar problem. Namely, they show a common criminal policy which tries to avoid the release of citizens considered dangerous ones or socially undesirable people. The prolongation of the deprivation of liberty is made through a breach of essential principles of the penal and constitutional system. The respective Constitutional Court of Germany and Spain, assumed a function of powers of State but didn’t play a role of Defender of Constitution. However the European Court of Human Rights declares a violation of the penal principles of legality and liberty, protected by the European Convention on Human Rights. To this end, the European Court uses a material interpretation of the violated rights and principles and rejects the formal arguments which hide that violation. In this way, the State of Law is nowadays defended by the European Court of Human Rights.