De cómo el concepto de objeto del proceso, adecuadamente entendido, incide en el diseño de un Estado de DerechoComentario y crítica al voto particular formulado en la Sentencia del Tribunal Supremo 88/2022, de 3 de febrero

Abstract

The essential concepts of any given legal subject constitute the basis on which the legal system is based. Its character and content, its foundation and purpose, the result of experience and study and often centuries-old, endow any system with a proper harmony and coherence that avoids discretionality and guarantees legal certainty. The Spanish concept in relation to the object of criminal proceedings (indictment), profusely studied and linked to the autonomy of procedural law from the material law, identifies its cause petendi, with a legally relevant criminal fact, never with a statutory crime. Any interpretation in another sense, even if an apparently advanced purpose is intended, can cause unforeseeable effects, and lead to uncertainty in a very sensitive aspect of the process that should be considered in all its manifestations. The dissenting judicial opinion that is commented in this study must be analyzed from these premises, warning about the risk of proposing changes in the dogmatics whose consequences should not be faced without reforming the law in its integrity. And that task, in any case, is the responsibility of the legislative power, not the judiciary.