Los confines de las sanciones: en busca de la frontera entre Derecho penal y Derecho administrativo sancionador

Abstract

Two different punitive systems coexist in our legal system: the Criminal and the Administrative sanctioning system. Are they the same? Can they punish the same things? According to the Constitutional Court, our legislator has a very wide margin of freedom in order to choose between them, as there are very few limits which are clearly imposed by our Constitution —art. 25.3— and the law of the European Union. In spite of the foregoing, the criminal doctrine has self imposed the aspiration of restraining the application of the Criminal Law at the expense of expanding administrative punishments, justifying the latter on the general principle of minimum criminal intervention. This principle seems to be insufficient, and in any event, it should be applicable to all the sanctioning systems and not just to the criminal one. In my opinion, the best option consists in punishing through the Criminal system and exceptionally, although with broad margins, through the sanctioning administrative law. It is rather the latter that deserves a special justification, since the imposition of administrative sanctions is surrounded by many less material and formal guarantees for the accused and victims that the imposition of criminal penalties.