Legal Qualification of the Criminal Offense and Principle of Legality in Criminal Law

Abstract

Laws (criminal and other secondary) are the basic source of modern national (internal) criminal law not only in Bosnia and Herzegovina, but also in other developed countries. In this way, the application of unwritten (common) law, court practice, or analogy in the creation of criminal law norms is excluded, even in the case of legal gaps. However, these supplementary, auxiliary sources of criminal law have not lost their importance even today, both in national criminal law and in international criminal law, especially if their application is exceptional, justified, purposeful and rational, and reduced to the minimum possible extent. Namely, with the legal qualification of certain criminal offenses in specific cases by the criminal (national or international) justice bodies, situations can often arise, either with regard to the elements of being, when determining the existence of the conditions for punishment, where the application of additional sources (jurisprudence, legal science, common law rules, etc.) is absolutely necessary and justified, but always based on strict respect for the principle of legality.
In the paper, the authors analyze the most significant aspects of the application of certain sources of legal norms in legal qualification of criminal offenses (criminal matter) before criminal justice bodies in domestic and international criminal law, that is, the problems that may arise in concrete practice, and ways of solving them. General and specific concept and elements of a criminal offense, the place and role of sources of criminal law and the role of interpretation and analogy in criminal law are considered in particular. As a necessary precondition for solving this problem, the concept and elements of criminal offense in international criminal law and the role of interpretation and analogy among the sources of international criminal law are considered.