10. The electoral penal procedure Law in the light of legal guaranteeism

Abstract

The electoral crimes violate the principle of popular sovereignty and the political fundamental rights of electoral suffrage and vote, therefore infringe the democratic rule-of-law state. On the other hand, the application of Law is an activity that may be subjected to the magistrate’s excessive discretion. Thus, it becomes imperative to question the limits of the magistrate’s discretion on jurisdictional provision so that it does not harm the popular sovereignty and the democratic rule-of-law state. In order to maintain the legal-democratic order, the norms of electoral Law must be applied according to the Federal Constitution respecting the fundamental rights and constitutional guarantees. The legal guaranteeism, a theory which defends the fundamental rights maximization and the minimization of penal intervention, unfolds, therefore, as a model to be transported to the electoral Law so that the jurisdictional provision can be performed in accordance to the constitutional model.