Avoidability of the prohibition error: dichotomy between Spanish jurisprudence and doctrine

Abstract

The doctrine approaches the avoidability of the mistake of law or prohibition from markedly antagonistic theories. From there, a broad spectrum of interpretations is obtained by the judges when admitting this figure in a judicial decision. Then, depending on each theory, the effects of the mistake of law or prohibition can be different. It is also to be considered the different criteria that that jurisprudence has formed, especially in countries such as Germany and Spain. These countries regularly apply the figure of the mistake of law or prohibition, primarily in cultural conditioning cases, due to the strong migratory phenomenon they have faced in recent decades. Therefore, various criteria are set out and must be considered for each particular case when defining the person’s degree of guilt.

KEY WORDS: Criminal law, legal principle, conduct, law enforcement, administration of justice.

JEL CODE: K0, K14