Eduardo Jorge Prats indicates that the constitution and fundamental rights must be interpreted and applied in a way that optimizes their maximum effectiveness to favor the holder of these rights. This concept is also found in the dominican constitution, which in article 74, numeral 4, states that public authorities interpret and apply the norms related to fundamental rights and their guarantees in the most favorable sense to the person holding them, and in case of conflict between fundamental rights, they shall seek to harmonize the goods and interests protected by the constitution.
the principle of favorability is defined as a legal locution that expresses the principle that, in case of doubt in the hermeneutics of a norm, the interpreter may choose the interpretation that is more favorable (in dubio mitius). it originated in procedural law for solving conflicts arising from the transition between penal legislations and other norms that have been implemented. it is primarily an interpretive principle initially applied in criminal law, but it implies that both the judge and the interpreter may opt for the interpretation that is more favorable.¹
however, the principle of favorability does not operate alone; it cannot be applied without first relating it to other principles. in other words, its application must be based on a prior analysis of other principles.² in this regard, prats explains how this principle combines or relates to others. let us see:
a) the principle of proportionality
when applying the principle of favorability, the judge must mainly analyze the sanction imposed or to be imposed on the person responsible for the infraction. that is, if the later norm contains a lesser penalty than the previous one, the judge must apply the penalty provided in the later norm.³
b) the principle of equality
favorability must be applied to all persons convicted, regardless of their physical, economic, or social conditions.⁴
c) the principle of non-retroactivity
although the principle of favorability allows a later law to be applied instead of an earlier one, this does not mean that it violates the principle of non-retroactivity. on the contrary, favorability becomes an exception to this principle, as long as it benefits the defendant or convicted person.
d) the principle pro homine
this principle is a hermeneutic criterion that informs all human rights law, according to which the broadest norm or an extensive interpretation should be adopted when recognizing rights.
e) it also connects with the principle of practical concordance, according to which, in case of conflict between fundamental rights, public authorities shall seek to harmonize the goods and interests protected by the constitution.
f) another connection is with the principle of greater protection, which leads to the preferential application of the norm within the constitutional block that offers greater protection of a given fundamental right.
bibliografía
- principio de favorabilidad – ausencia en el derecho civil colombiano. Disponible en Internet: repository.ucatolica.edu.co (consultado el 20-02-2021, 21:23).
- bravo, mónica. principio de favorabilidad. Disponible en Internet: derechoecuador.com (consultado el 20-02-2021, 21:23).
