INAUGURAL LECTURE.
Given the nature of study that purports to be about human behavior, scientific disciplines can be classified into three categories: First place, investigating the origins of human behavior and its natural development, such as sociology and psychology, which have called causal explanatory science. Second, they deal only with those behaviors that have previously been expressed in rules or standards of conduct, such as law, morality or civility, which have been called normative sciences. And thirdly, they form a set of techniques that teach how to respond to practical questions of scientific disciplines pose, or whatever it is, the scientific disciplines which are interested only answer some practical questions arising in connection with such behavior, the latter have been called applied sciences and they are a paradigm of economics and management companies.
If the wrongful conduct at issue, the classification would be: causal-explanatory science of criminology, criminal conduct is, as it is in charge of studying the phenomenon tort in its origins and development; forensic science is applied science because it investigates for the personal, instrumental and temporo-spatial under which such conduct would have been observed. Normative science is the criminal law, since it is responsible for defining what constitutes a crime, also ascribing a penalty.
So, we must understand the criminal law from three different points: On the subjective (right to punish) and the faculty or power which the state has to punish the crime and is not nothing but a power derived from rule or sovereignty. In the objective sense (jus poenale) as the set of positive rules that determine criminal offenses and criminal penalties should apply it or, as I said Von Liszt as "the set legal rules established by the State, which combine to constitute the crime, the penalty as a legitimate result. " In the scientific sense (criminal legal dogmatic) as the discipline that deals with the right policy for its general survey, abstract, systematic, critical and axiological norms of positive law, and that is to determine the true meaning and genuine scope rules and correlating and integrating them into coherent wholes overall progress, in order to extract general principles governing the rules.
However, this set of legal and criminal standards of consecration of the factual (types criminal) by the legislature elevated to the rank of conduct mandated or prohibited, as well as the legal consequences (penalties and security measures) imposed on those violating these rules are subject to classification, to a division, or what is the same , to a location within the criminal law.
speak of criminal substantive or material rights, criminal law adjective, formal or instrumental and criminal law enforcement, but also talk about basic criminal law, criminal law complementary to ordinary criminal law and criminal law special.
Substantive criminal law contains provisions or material criminal background, which define the factual (types) and determine penalties. Is so named because it looks at the substance of the criminal law. It deals with rules of criminal offenses and penalties, descriptions of offenses and the determination of criminal sanctions should be the consequence. For this reason, it is said that the substantive criminal law or material responds to a fundamental triptych, that is, criminal, crime and punishment.
fundamental criminal law is the organized set of criminal laws or systematized into a single body of law, for our particular case we say that the Act 599 of 2000 in his two books is the right Colombian basic criminal.
additional criminal law is that contained in other criminal laws, different criminal code, generally after the issue of code of matter and not incorporated explicitly to that, but might also be of special criminal laws and existing not been repealed by the organic law of crimes and punishments. For the sample, the Law 890 of July 7, 2004 which criminalizes conduct such as the arbitrary exercise of custody of minor child, threats to witnesses, impairment or disturbance of the public hearings, as well as increased penalties other existing and perjury bribery and fraud trial, among others.
fundamental criminal law, ie Act 599 of 2000, as stated above, consists of two books, the first called party General, comprising the first 100 articles, which have already been sufficiently discussed in the general criminal law course, where we said that the role of the general part of criminal law is to answer three key questions, around which bring together the basic problems of this discipline: What is criminal law, what does is the offense? And what are the legal consequences of the offense?; Answers that throw the theory of science criminal law, criminal act theory and the theory of the legal consequences of the offense, respectively.
The course starts today, aims to analyze the Second Book of the Law 599 of 2000, ie, the special part of the criminal code of particular crimes, or what is, Articles 101 to 473 or 18 titles that shape it, with more than 372 articles.
Title I
crimes against life and personal integrity.
Title II crimes against persons and property protected by international humanitarian law.
Title III crimes against individual freedom and other guarantees.
Title IV crimes against freedom, integrity and sexual education.
Title V
crimes against the person.
Title VI
crime family.
Title VII economic crimes against property.
Part VIII Offences Against the copyright.
Title IX crimes against public faith.
Title X crimes against the social economic order.
Title XI
crimes against natural resources and environment.
Title XII offenses against public safety.
Title XIII crimes against public health.
Title XIV Offences against the mechanisms of democratic participation.
Title XV crimes against public administration.
crime effectively and upright administration of justice.
Title XVII of the existence and crimes against state security.
crimes against the constitutional and legal.
SPECIAL INTRODUCTION TO CRIMINAL LAW: LOCATION OF CRIMINAL LAW IN CRIMINAL SCIENCE.
If criminal law is within the set of "criminal science" that is, within those sciences or disciplines that are on the offense, the offender and the sentence the object of study We have to start from a basic concept, as is the policy.
Indeed, if we recall that according to the dictionary of the English language by political means:
"1. Art, doctrine or opinion regarding the government of States. / 2. Activity of those who aspire to govern or regulate public affairs. / 3. Citizen activity when involved in public affairs with his opinion, by voting or otherwise. / 4. Courtesy and good demeanor. / 5. By ext., Art or trace that leads to a subject or means used to achieve a particular purpose. / 6. Guidance or guidelines governing the conduct of a person or entity in a particular subject or field,
we infer that the word policy contains three basic meanings in the field of management of public affairs of a State always behaving teleological:
Regarding the former, just will recognize that when it comes to policy can be distinguished three basic meanings, namely: an electoral sense, when alluding to the fact that the "activity of governing or aspire to govern public affairs," a bureaucratic sense, particularly noticeable in our Latin American environment, when referring to the participation of citizens in managing public affairs, which, in an environment that job opportunities are scarce, making the state the first and most important employer, by way of policy which degenerates into the form or mechanism that is accessible to a working position in the formal sector and, finally, a pure sense, when referring to the "art, doctrine or opinion regarding the State Government."
Regarding the latter, from the notions transcribed above, it is clear that whatever form it magazine, the policy should be, par excellence, pointing to an "end" specific, when it states that it behaves the "art or trace that leads to a subject or means used to achieve a particular purpose", just like when it is proposed that is constituted by the "guidance or guidelines governing the actions of a person or entity in a particular subject or field. "
In this manner, returning to the field of our interest, we will say here that when we talk about politics, in order to locate the criminal law within the set of "criminal science" policy to understand how Aristóteles2 he did, that is, as the "art of governing well"
"Politics, like any science or art, has an end, as the highest science, has the highest end: justice , ie, the common good. "
well, we can conclude Velásquez3 Bureau, the politicization is "... system knowledge of the state's objectives and the proper means to achieve them more perfectly. "
From there, therefore we can say that the State, while higher body responsible for the administration of public affairs, must, must interest all events and phenomena that affect one way or another or may affect the welfare and, more importantly, the best-being of co-partners: if the policy aims to "good governance", for no other reason than that which teaches that the State must and everything has to be interested in a particular time might affect the welfare and more than that, the best-being of its inhabitants.
Therefore, it is little less than obvious that the State should and have to be of interest issues such as economic phenomenon, since the undulations and variations you observe this phenomenon in society, will produce a huge involvement for each and every one of the co-partners. Similarly, should and must be of interest to the State, the problem concerning health, education, recreation, work, etc., The co-partners, as they are all aspects that, one way or another way affect the welfare and best being of the inhabitants of the territory of that particular state.
If all is well, as indeed must be so, should not be strange that the State should and has to have some specific policies in each of these fronts, why be discussed economic policy, politics, health, the policy on recreation and education, labor policy, etc ... And if the State should and must be concerned about such issues, is simply because each and every one of them is still a possible involvement for the welfare and best-being of its co-partners.
Following this reasoning, we can say that is a matter that should and must also worry about the state, to the extent that it can also (as indeed it does) affect the welfare, that better be the co-partners, the unpardonable appearance of "criminal phenomenon" in the social heart, it is well known, as proposed by Durkheim, that the offense is a "normal" in all societies, that is, always and in all times and places, has the phenomenon existed and will exist tort, because the enforcement of behaviors that injure or endanger certain values \u200b\u200bon which society is interested as such, in order to its survival as such, is their own, one being, of human nature.
We may from time to time, from one place to another within the globe, a system of government to another, a degree of technology and education to another, change the forms, methods or means of commission, but as much as it happens, what will never change the presence and appearance, within any social group of criminal behavior.
And from this undisputed fact, namely the idea that criminal behavior will always materialize in the phenomenal world, we say that the State must and have to sweat it, you will need to motivate their attention and regulation, to the extent that both the occurrence of criminal behavior, as the boom in quantitative and / or qualitative, is something that can affect (as indeed ago), the welfare and best to be of co-partners, and for this reason, then, this seemingly simple reason, the State should and must worry the management, regulation, restriction of the tort problem, that is, because in extent that the crime levels reach certain quantitative or qualitative, may be derived from it a grave and great affection for the welfare and best-being of the inhabitants of its territory in the extent not only be ignoring, violating and / or affect certain rights of which they are owners, as individuals, but also certain interests or values \u200b\u200bin the defense and protection is compromised the entire social body, face to their survival.
the need for the adoption, design and implementation of criminal policy, which we view as the "... branch of political science, which tends to suggest which is among the activities undertaken by the State, the most appropriate for the purposes of prevention and ultimately, repression of criminality, on the experience gathered by criminology and penology "4 say that she is the immediate aim of" fighting "crime, antisocial phenomenon that must necessarily fatal, have occurred in any social circle, and if to fight, fight crime in question, we note, as it is inherent within the notion previously transcribed, that this is due, you have to start to make in terms of prevention, to finish performing in the field of repression.
Indeed, if our intention is to fight, fight crime, seeking reduction to the limits tolerable from the standpoint of social (as it certainly would not be a chimera attempt ¬ walked in its absolute and final disappearance, however much of it are bent the "abolitionists"), the first thing you should and should State to make a truly concerned and committed to this task, would prevent the realization of such behavior: when we talk about "prevention" we mean the sum of policies to prevent the onset or progression of the crime "5, which it follows that "prevention" is not only an end in itself, as content that can reach to take policy criminal, but is targeted primarily at the origin of crime, because that's what it is to anticipate the realization of the crime phenomenon, seeking its not patenting in the phenomenal world. In other words, "prevention" seeks to have the necessary conditions to have no realization in the future, the phenomenon delict, that is, after all, what interests us here.
For this pathway is understood that "prevention" as one of the content may take criminal policy should be based on the studies and conclusions of criminology as a science that is within their object of study, the explanation of the genesis of crime, obviously, if it is addressed to the "prevention" of crime in the terms and under the newly exposed arguments, it is logical to think that in order to ensure realization of this objective, it must be assumed reliable knowledge, reliable, around the origin of crime. In other words, if the state apparatus is intended, as it should be trying, "attacking" the crime at its roots, looking for her to have no realization in the future (mediate or immediate), the first thing you need to know and understand, is why reasons or circumstances, has the appearance crime phenomenon, with that, consequently, the explanation about the relationship between criminal policy and criminology exists, and, more importantly, the full explanation about the "end" that holds the latter in as a science, that is, to serve as a basis for the first time.
then what is the origin of criminality on the part of criminology, criminal policy can proceed to design and implement measures to "prevention" of that crime and, once again, if " prevent "the crime phenomenon in question will to say that this is done, so fundamental and essential, through the formulation, consideration, realization and implementation of measures of "social policy." If the state is truly interested in "prevent" the emergence of delinquent behavior as a form of struggle, fighting against the same, the first thing you must do is take into account the conclusions and lessons of criminology, as it was only From there you will know the origin of such anti-social phenomenon, in order to eliminate it at the very beginning, but in the same vein, if real and effective state apparatus is interested to "prevent" crime, the first thing you have to do is implement social policy measures, since there is no better way to anticipate the commission of criminal behavior, which eliminates the con ¬ ditions and the factors driving their emergence.
If our Latin American environment, so hackneyed, criminologists say as one of the reasons for the emergence of the phenomenon tort widespread poverty that afflicts the vast majority of the inhabitants of these territories, the first mechanism to which reference should be made to combat this crime is "preventing", and prevented, from implementation social policy measures that address serious treatment, thorough and fair labor phenomenon, the health aspect of the topic education, recreation area, etc.: Only when our States to demonstrate a real commitment to the social aspect, and interested in the promotion of employment and education, as well as for the improvement of general living conditions of its inhabitants, we can begin to aspire to achieve positive results in the fight against crime. But while the fight against crime is reduced to increasing the number of penalties, both quantitatively and qualitatively, we can say, without equivocation, that this struggle is doomed to failure ...
Now. It is also true that however much the State implement social policy measures, that is, how much the state apparatus are interested and apply to the "prevention" of crime, the latter one being antisocial phenomenon to humans, continue to be displayed , will continue to materialize: while allowing the freedom to imagine the perfect state in which they were satisfied all the basic needs of the co-partners (concerning, for example, housing, health, educa ¬ tion, employment , recreation, etc.), we should recognize that, for better or worse, the behavior delict would still have occurred, continue to occur. Quite possibly, I would not under the forms and truly "primitive", typical of the Quaternary of humanity, which today occurs in Colombia, but certainly that would still present, and took its own form of crime information, abuse of credit cards and bank ATM, the misrepresentation, negligent crimes in traffic accidents, etc., the fact is that even in that ideal state, obviously imaginary criminal behavior still have materialized.
Therefore, because much the state is worried about the "prevention" tort, crime will continue to have occurred, is why, in a second time, the state must attend to the enforcement of such anti-social phenomenon, defined as, "... the negative response to the State or the Company gives a criminal or deviant behavior, and can occur in the legislative field (from the time the legislator, especially through the law, and particularly its criminal, defines certain conduct as crime, usually for the benefit of the minority), executive (relating to the implementation of the desired or expected behavioral definition, and involves the performance of Tables policemen, military and prison) or judicial (to the extent that the judge, in developing the criminal proceedings, sought the institutional repression within legal frameworks) "6.
If, by demonstrating the inadequacy of the "prevention" criminal behavior will continue (as in fact continue) arising within the social cluster, to which the state will appeal it to the "repression" of crime, then being there, which establishes the importance of penology, as a foundation for criminal policy, understood as the science which studies the efficiency, leading, the timing of sanctions to be imposed and enforced, in the face of social rehabilitation of individuals who have been recipients of the same, taking into account the regulations contained in Articles 4 and 5 of the Penal Code currently in force.
If, in this second phase, the criminal policy should and must assume some content "repressive", it is logical to infer that the work and research in this specific field is to advance the criminal policy should and must substantiated by the findings and lessons of penology.
However, contrary to common belief, not only through criminal law, the state can take the "repression" of crime: to "punish" the crime, the state apparatus has not only criminal legal mechanisms, but legal court also parole:
When to "suppress" the crime in question, the first thing you should do the State would go to the mechanisms "extrapenal legal," given that the criminal law is not only not the only but many times is not even the best tool or mechanism to combat crime, many problems intersubjective, many personal conflicts between co-partners can not be solved more effectively, more timely and more intimidating, if you will, by legal frameworks beyond criminal, as in the case of civil law, commercial law, labor law, administrative law, tax law, the right policemen, etc..?
Is it not more effective, for example, more intimidating, if you will, the regulations for the speculator behavior embody the civil law (art. 2231, Civil Code) and commercial law (art. 884, Commercial Code), that recognition that for usury referred to in Article 305 of the Penal Code? Could it be, perhaps, more effective and timely, an administrative investigation, conducted by the Office on the basis of the provisions of Article 10 of Legislative Decree 2400 of 1968, as a sanction may result in dismissal of the staff, the forecasting rules laid down in Article 422 of the Penal Code, for "political intervention" by public employees? Is not it better to let the tax law concerning the regulation and sanctioning of "tax avoidance", which aims to solve such a problem to allocate revenue through criminal law, as do the administration wanted Gaviria? Like those, many other examples could be proposed here, seeking to prove one thing, that the criminal law, certainly not the only, and in many cases, not even the best tool to fight, to fight crime, from its "repression", well, it could "restrain" the crime, obtaining much better results in this unequal battle, through the implementation of measures "repressive" cut-penal law.
Obviously, when all these measures will fail, ie when having tended by the "prevention" of crime, it continues to have occurred, and when, having served its "repression" in the juridical-penal, it continues to have materialized, then we must resort to the implementation of criminal policy measures, which that will consist of adding such regulations and criminal justice institutions, with which the State will attempt to suppress, through the involvement of two of the most cherished rights to humans, such as liberty and property in custodial sanctions is the first and pecuniary nature, reward the evil crime.
This criminal policy, and last aspect of criminal policy, is evident, in particular, in criminal law, so it must be said, that she not only understands the Penal Code but also all other regulations criminal sanctions, that are outside of such encoding, comprising, in consequence, the whole criminal law, first and main manifestation of it.
Understood criminal law, ie as a mechanism, as the last instrument to which should and can attend the State in its fight against crime, states that the employment or use of it can be used or come alone and in both, all other political mechanisms and instruments criminals have been certified and demonstrated its impotence, its ineffectiveness, its ineffectiveness in combating criminality, solely and exclusively at the time, and we can go to criminal law, understood as the last resort, the latest tool which can and should use the State to the fight against crime.
Unfortunately, by the way it is, rather than incur the last resort, the last instrument or tool used and / or usable in the fight against crime in our criminal law has become the premium ratio, that is, the first mechanism to which it comes, when it is necessary to fight crime, therefore, not surprising that in our criminal law is used, by the state apparatus, and completely unnatural way to solve problems or conflicts on the fiscal, administrative, civil, labor or business, by means of which creates new criminal offenses to which they ascribe excessive punitive consequences for the event in its enforcement, while establishing special procedures for research and prosecution, clearly at odds with the most basic human rights principles and, when the issue is to solve a problem that could easily be resolved in a legal field parole.
Overcoming the latter observation, we can then conclude this section of our discussion, putting the special criminal law, as a segment within the criminal law which, in turn, represents one of the manifestations of criminal policy, not happens to be one of the mechanisms, the latter if you will, which can and should use the criminal policy in the fight against crime.
NOTES.
1. Real Academia de la Lengua. English language dictionary. Madrid, 20 ª ed. P. 1082.
2. Aristotle, Politics. Editorial Vosges, Barcelona, \u200b\u200bp. 1975. 49.
3. Mesa Velásquez, Luis Eduardo. Lessons of criminal law. External University of Colombia, Bogotá, 1979. P. 11.
4. Arrubla Molina, Carlos Mario. Introduction to criminology. Editorial Dike, Medellín, 1988. P. 65.
5. Pérez Pinzón, Alvaro Orlando. Course of Criminology. Bookstore Professional editions. Bogotá, 1983. P. 181.
6. Arrubla Molina, Carlos Mario. Op. P. 34.
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