I always believed that the criminal procedural law of the rule of lawit meant adding to the material conditions of punishment or punishment, formal conditions for the State organs that decide it or that administer the criminal power of the State. It is worth listing some of these conditions synthetically to realize it: the nemo tenetur principle, whatever its correct intellection, as it prevents obtaining information at least “by word of mouth” from the accused without the concurrence of her voluntary and free decision; the principle of innocence until a firm conviction does not verify otherwise, with all its procedural repercussions, especially the in dubio pro reo, which proscribes the historically suspicious or extraordinary convictions and penalties and, as a consequence, the loss of the individual's basic rights during the procedure,without an exceptional reason that grounds the anticipation of the use of public force, if the expression is correct; the principle of formalization of the procedure, with its repercussion on the definition of the word proof -that which is legitimate to use to know the reality necessary to condemn- or, rather, on the definition of a source of legitimate knowledge, legally legitimate proof, in the meaning of the evidentiary prohibitions, and on the determination of the suitable procedure to condemn, that is, the public and contradictory judgment; the maxims regarding the natural judge and impartiality, which govern the determination and integration of the court that carries out that judgment; the ne bis in idem principle, which represents a unique opportunity for criminal charges related to specific behavior;the guarantee of the recourse for the convicted person, which, at least, enables him, with his will, to set in motion a control mechanism for the first conviction. All these principles, and some more that I have surely forgotten in the enumeration, preach a conception of the criminal procedure prior to the sentence, which legitimizes the state decision on it and, precisely for this, it gives the accused an opportunity to try to avoid it, through refutation. of the accusation addressed to him, of the evidence and the grounds that seek to endorse it.they preach a conception of the criminal procedure prior to the sentence, which legitimizes the state decision on it and, precisely for this, gives the accused an opportunity to try to avoid it, by refuting the accusation directed at him, the evidence and the foundations that seek to endorse it.they preach a conception of the criminal procedure prior to the sentence, which legitimizes the state decision on it and, precisely for this, gives the accused an opportunity to try to avoid it, by refuting the accusation directed at him, the evidence and the foundations that seek to endorse it.
Criminal procedural law, born with the Enlightenment - to the point that your birth certificate, together with criminal law, is represented by that little book by the Marquis de Beccaria on crimes and penalties - traveled through these lanes throughout the period of my formation in pursuit of submitting to the new State, to the Rule of Law, in an increasing way, and that defeat continued, in its elaboration, for a time span of almost two centuries. At the end of the 20th century, new breezes began to blow, emphasized in the 21st century with increasing vigor, to the point that the breeze turned into a wind and a storm, so that the legal provisions that were inconsistent with that concept or debatable according to him, born under the protection of a so-called state of emergency or emergency, they gained not only permanence, but at the same time,they occupied a higher domain until, perhaps with hypocrisy, making the rule disappear. My thesis today will try to explain that, despite the classic constitutional rules, still in force today, the current criminal procedural law seeks, day by day with greater emphasis, to configure the procedure of criminal prosecution with a different meaning from the historical one to which I have referred to the beginning. Rather, it aims to build the criminal procedure according to the concept of combat or fight against the enemy, the so-called criminality, or, better still, war against the aggressor, that is, according to the idea of a criminal procedure that is not carried out to punish, where appropriate, when we are convinced that it is fair and necessary, but, rather, he is subsequent to the punishment and intends to be carried out to corroborate if,By punishing directly or immediately, we have not been seriously mistaken and giving the already convicted a chance to redeem himself. As observed, described in a few words, in the first case the State proceeds to be able to legitimately punish; in the second, on the other hand, it only proceeds to avoid serious possible mistakes, especially future mistakes about what has already been done. This is, in my opinion, the most benign current hypothesis, since real events that have occurred in recent times seem to lead by induction to the idea that translates the logic of lynching, even without the death penalty. This last concept clearly supposes that the penalty must be directly and immediately after the punishable act, fall without further debate on who is suspected as the author at first,sometimes according to the public trial or the alleged victims, and even innocuous the author through the mechanism of preventing the future, always eventual, at least for life or prolonged imprisonment.
Perhaps I should clarify, before taking charge of the exposition of the problems that this definite "anti-guarantismo" creates -according to the characterization of the public defenders of this political position-, for those who listen to me or read to me without being able to read the Quotes below, that this position is incomprehensible to me at this point in my life. But this may be due to that so-called "height of my life", not to say old age, since there are other current phenomena, not necessarily legal, that are incomprehensible to me.
The political unit of special criminal law with criminal procedural law
Perhaps today, more than ever, something I have insisted on all my life is highlighted, which is in the title of this section, but which, due to a kind of mistaken curriculum development, typical of the Spanish-speaking countries, is something strange in these lands: the essential unity between criminal law and criminal procedural law, which does not allow us to think of both separately, at least when it comes to developing a criminal policy. They were born together, as I described above, and now seem to languish together, in my judgment. In truth, in this process of hypertrophy of the penal system, it is the (material) criminal law that takes the lead regarding the setting of political goals to be achieved and, behind it, it determines the criminal procedural law that it is convenient to accept. By this I also mean that, if this process is considered to be unbalanced from some point of view, for example, from the constitutional watchtower, there is no possible form of correction that stops incurring in either of the normative segments of the system. Both the infection process and the healing process encompass both, and I would encourage you to start with criminal law. This, on the other hand, cannot be any novelty,because procedural law has been defined as a producer of criminal law.
I do not wish to occupy areas that do not concern me today. But a minimal description of what is currently happening in the system cannot ignore the fact that criminal law or, rather, state punishment has gone from being proposed as the last ratio of social policy, to being, directly, a prima donna of hers. Indeed, as I have already said and written, although I have not yet published it, the state sentence, wrongly or correctly - the same, because it is not a trial, but a verifiable political and social reality - has passed to be a miraculous medicine found at last by man, a "sanalotodo" of any social problem. This has caused its indiscriminate application, a phenomenon known as inflation or expansion of criminal law and which I qualify, so as not to dwell too much on the point,as devastating to principles and expensive characteristics for liberal criminal law: v. gr., the loss of the principle of subsidiarity and, with it, that of the conception of criminal law as the last ratio of social policy, and, together with this, the loss of the fractional character that was traditionally attributed to it based on the principle nullum crime leads, as often happens, to the "bastardization" of the instrument as a useful mechanism for social policy and for those who support it. Hence the affirmation of the transformation of criminal law into a symbolic legal regulation that serves particular interests, such as "political demagoguery and the media spectacle", with the aggravating circumstance that, through the administration of justice, it not only confirms, but reaffirms and aggravates its selective nature,phenomenon known to all: only small (small) fish, weak and, therefore, vulnerable, fall into the net -even in the area of the alleged "new" legal assets-; Contrary to what happens in real fishing, the big and fat escape for multiple reasons that exceed this exposure and my knowledge.
This expansion of criminal law and state punishment, almost without limit, condemns the judicial procedure established for its implementation to inefficiency. If the importance of the phenomenon cited as a black number of the crime was already known with traditional criminal law, in the sense of ignorance of most of the acts punishable by the authority in charge of official criminal prosecution and, in addition, the selective power is known of the criminal procedure on those cases actually entered into the system, the minimum incidence that the criminal prosecution observes in a symbolic criminal law, rarely achievable, can be calculated with an arbitrary selection system (not legally regulated or dependent on the chance of human decision), next to a maximum incidence from the state budgetary point of view.Although without a prognosis for success, the only reasonable response to this phenomenon would be the correlative expansion of the state service of criminal prosecution and execution, as already happened when the foundations of the penal system were established in the 19th century, when new, basically individual, legal goods were added to the state reason, the crime lesae majestatis. If, in turn, this expansion lacks a limit, correlatively to the expansion of state punishment, the only thing that will be achieved by responding in this way, surely, will be a gendarme or police state, in the Orwell 1984 style, contrary to the State of Right, undesirable for everyone.as already happened when the foundations of the penal system were established in the 19th century, when new, basically individual, legal assets were added to the reason of State, the crime lesae majestatis. If, in turn, this expansion lacks a limit, correlatively to the expansion of state punishment, the only thing that will be achieved by responding in this way, surely, will be a gendarme or police state, in the Orwell 1984 style, contrary to the State of Right, undesirable for everyone.as already happened when the foundations of the penal system were established in the 19th century, when new, basically individual, legal assets were added to the reason of State, the crime lesae majestatis. If, in turn, this expansion lacks a limit, correlatively to the expansion of state punishment, the only thing that will be achieved by responding in this way, surely, will be a gendarme or police state, in the Orwell 1984 style, contrary to the State of Right, undesirable for everyone.undesirable for everyone.undesirable for everyone.
But this is not the only pernicious influence of criminal law on criminal procedure. Historically, it has been relatively easy for criminal law to influence in a maximum way the verification requirements of the punishability hypothesis -and even circumvent these requirements- that criminal procedural law places on the state decision on punishment. In order not to overwhelm with historical examples on the hiding places of suspicious or extraordinary penalties, take the regular mechanism of punishing imprudence, next to intentional crime. Without further ado, it means not only a considerable extension of the punishment of behaviors, but also a “loosening” or “relaxation” of the verification requirements of all the elements that make punishable malicious behavior a result. material,according to the aphorism in dubio pro reo. If this is so in this regular and tolerated example, how much more justification will this phenomenon take place when, as it happens at present, the importance of expansion lies in the special part of criminal law and, in it, in the so-called crimes of abstract danger, which suppress, as a rule, the verifiable connection (causality or determination) between an event and human behavior. As has been denounced, the criminal law of modernity no longer refers to the past to punish quia pecatum est (criminal act law), but rather, it is interested in the future to prevent -ne peccetur- the risks involved the gregarious way of human coexistence of postmodernism, in a sort of neopositivist and criminological euphoria,who returns to dangerousness and sincerely believes - and not so sincerely in some cases - in the power of state punishment to accomplish this task (neopunitivism).
If, with an effort of our imagination, we are able to abstract from these crimes those calls of anticipation, in the sense of those that, to prevent possible future damages - but in no way certain - prohibit -or command- behaviors that affect only the area of the so-called preparatory acts, that is, the first protective defensive armor of the allegedly endangered legal asset, as happens, for example, with much of the legislation on controlled substances or prohibited commercialization (drugs) or in the area of liability for the product -why think about the criminal laws and criminal procedures that terrorism is creating? -, the expansion of criminal law, even from the point of observation of criminal procedural law and from the adequacy -more directly expressed:Inadequacy- of the definition of the concept of justice to the truth, will be exposed. It is not only the attempt that does no harm, but justifies its punishment by the undoubted approximation of the action to that necessary to consummate, but also, the preparatory acts are included in that punishability and are punishable, precisely, only because they disobey the norm that prevents future risk. If, in addition, we warn that all this expansion of criminal law happens in the field of crimes that, at least theoretically, protect collective legal assets, basically, interests directly linked to the action of the State in safeguarding the common good (fiscal criminal law, products of mass production or commercialization, public health or, better said, general, correction of the environment, etc.),then we will be close to the reason of State, from criminal law, to its justification for that reason, equivalent to saying, by itself, by its very existence, as disobedience to the norm. Criminal law can only be justified from outside criminal law, never from within it, otherwise it becomes what HASSEMER has called institutional criminal law. The strong core of criminal law, previously referred to individual legal goods and crimes of result, and I would almost say, of physically verifiable result, has moved towards what previously represented, at most, a complementary criminal law, legal goods Collectives and crimes of abstract danger. The immediate question says:Will criminal law be an effective tool to prevent such risks? This is enough for today's topic: I cannot, in your tribute, add new problems such as, for example, the loss suffered by the principle of legality, since all this development also reverts to the mandate of certainty for criminal law, emanating from that maxim, insofar as actions and omissions are described without any rigor, thereby producing definitions of punishable acts open or, even, largely left to the subsequent definition of the administration or an administrative official.emanating from that maxim, insofar as actions and omissions are described without any rigor, thereby producing definitions of punishable acts open or, even, largely left to the subsequent definition of the administration or an administrative official.emanating from that maxim, insofar as actions and omissions are described without any rigor, thereby producing definitions of punishable acts open or, even, largely left to the subsequent definition of the administration or an administrative official.
The distension that these kinds of definitions of what is punishable grants to criminal procedure and, in general, to the decisions that fall on it, especially to the decision that culminates a criminal trial, is immeasurable: there is also a criminal procedural law of the enemy ! So much so that these needs of criminal procedural law have been redefined as "resigned surrender to the needs of modern criminal law."
Constitutional guarantees in criminal procedure exist
I do not wish to overwhelm with problems: I will bring up the two problems that I consider salient in the area of criminal procedural law in relation to the Constitution and the principles contained in the rule of law, if she and they still govern. The last question in the previous section about the efficiency of criminal law to fulfill certain ends makes sense, since, as it was warned more than a century ago, criminal law, by definition, can only fulfill its ends through criminal procedural law.. That we believed, at least, and in a rigorous way, even for those so-called private criminal actions: the state penalty was only imposed by independent judges representing a State Power and after a procedure formally regulated by law, in particular,after a public trial that guaranteed the person at risk of suffering a wide possibility of resisting that claim. Today such a trial suffers an obvious devaluation due to entering criminal law, to justify the application of the penalty, of the possibility of consensus - to a greater or lesser extent - of who will support its execution, that is, by the game of the principle of the autonomy of the will in the penal consequence, proper principle of private law. In the form of guilty plea or plea bargaining, in the law of Anglo-Saxon stamp, or of abbreviated or publicity-free trial, in continental law or between us, the so-called consensual truth, itself the device principle - which falls on the rite or on the penalty itself-, has been gaining ground, with increasing vigor,to the formalized and rigorous rite according to various legal requirements: public and contradictory judgment, in dubio pro reo, nemo tenetur, among others. It should not amaze us. The expansion of criminal law - better said, of punishment - as long as it does not mean a similar expansion of the judicial organization, can only be achieved through the mechanism of its acceptance by the person who suffers it, possibly coerced by its weakness against the system (vulnerability), which prevents or makes it difficult to defend against it, resist it, with suitability, a reality that ensures a greater failure than the rigor that it accepts voluntarily.It can only be achieved through the mechanism of its acceptance by the person who suffers it, possibly coerced by its weakness against the system (vulnerability), which prevents or makes it difficult to defend against it, resist it, with suitability, a reality that ensures a greater failure than rigor that you accept voluntarily.It can only be achieved through the mechanism of its acceptance by the person who suffers it, possibly coerced by its weakness against the system (vulnerability), which prevents or makes it difficult to defend against it, resist it, with suitability, a reality that ensures a greater failure than rigor that you accept voluntarily.
Until recently, consensual justice was only thought, theoretically, as a replacement for the penal system, whose characteristic reaction, punishment, disappeared in that case. She replaced the criminal conviction. Whatever the valuation of these instruments in that case, positive or negative, the truth is that their application always displaced the penal system or, at least, made it less rigorous by decompressing or reducing it. Without wishing to enter the treatment of these methods now, examples of this are the acceptance of the principle of opportunity, a mode of resignation -even conditioned- to the exercise of criminal prosecution, reparation, as a third way of criminal law, which allowed certain agreements in favor of the victim (suspension of the trial procedure) to set aside the sentence or to lessen it, and its correlative procedural method, conciliation, which made it possible for the victim to beneficially intervene in criminal proceedings, in the indicated sense, with the idea that legal assets are not abstract entelechies, but realities carried by a human being, with a certain power of decision over them, at least to help or not hinder the author's social reintegration. Today, on the other hand, the defense of consensus mechanisms is directly linked to the phenomenon of so-called neopunitivism. It does not turn out, then, by chance, that the countries with the highest percentage of incarcerated in relation to their population are those that have developed these methods more and better.Although I cannot commit my responsibility in the affirmation, I still listen carefully - as CHRISTIE indicates for certain customs and methods - and I have heard that in my province, Córdoba - where I do not live, but to which I return sporadically, almost always for reasons academic-, formerly a legislative champion of criminal procedural constitutionalism and today the recipient of these methods indiscriminately (for any crime and penalty), the number of convictions reached by this route (paradoxically called abbreviated trial, since it resides in the absence of the trial) far exceeds 50% of those issued by its criminal courts.but to which I return sporadically, almost always for academic reasons-, once a legislative champion of criminal procedural constitutionalism and today the recipient of these methods indiscriminately (for any crime and penalty), the number of convictions that are reached by this route (Paradoxically called abbreviated trial, since it resides in the absence of the trial) it exceeds by far 50% of those issued by its criminal courts.but to which I return sporadically, almost always for academic reasons-, once a legislative champion of criminal procedural constitutionalism and today the recipient of these methods indiscriminately (for any crime and penalty), the number of convictions that are reached by this route (Paradoxically called abbreviated trial, since it resides in the absence of the trial) it exceeds by far 50% of those issued by its criminal courts.since it resides in the absence of the trial) it exceeds by far 50% of those dictated by its criminal courts.since it resides in the absence of the trial) it exceeds by far 50% of those dictated by its criminal courts.
The science, technique and criminal procedural fallacy
I am already bored to repeat that the geometric acceleration of the natural sciences has no correlation with the slowness of the cultural sciences. Comparatively and metaphorically, it could be said that, if it were a race, the normative sciences would turn out to be heavy turtles compared to the natural sciences and the technique derived from them, formula race cars or jet planes. Consequently, norms do not seem to be able to reach the development of technique and, therefore, the methods to avoid norms and principles coined for centuries - apart from those destined to solve specific problems of the advancement of science and technique in the so-called risk society - they seem to have won the game.Sebastián SOLER was right when he warned about new ways of damaging legal principles of the Rule of Law, mocking them, and criticized the Universal Declaration of Human Rights -or, specifically, one of the champions of that declaration, Jaques MARITAIN- for not having reformulated those principles, by the hand of the nullum crime principle and the requirement, derived from it, of the today called mandate of certainty or determination (Tipizität in the language of Beling). Precisely, the so-called postmodernity, with the scientific-technical speed that it implies, the breakdown of territorial ties, the consequent decline of the gregarious association designated as a nation state, and the possibility, according to her, of the global village, has concluded with his realities for sculpting those principles in bronze,so that nobody bothers to demonstrate against them directly, but also, hypocritically, they manage to turn them into a dead letter.
Only a few examples will suffice to observe the current transformation. As DENCKER exposes, criminal procedural law has become a hypocritically unfair and dishonest regulation, its basic principles have been emptied of content: “The fundamental principles of the protection of family communication, of the right to remain silent of the accused, medical secrets, etc., are simply empty, they become 'museum pieces' ”with the new“ secret ”research methods, call them“ eavesdropping ”(microphones and mini-cameras) or“ brokers, provocateurs, and agents undercover ”; and "in the subsequent public judicial procedure, they are also exhibited to the public, even though they are no longer useful."It would be at least more honest to warn those who endure criminal prosecution and those who have the right or obligation to refrain from providing information by means of a statement not only about their right of free abstention from the official from criminal prosecution, but also from your right to refrain from talking to your spouse and potential “friends,” such as the repentant, the provocateurs, the undercover, and even yourself, because pimping and deception are permitted, and because observation with sophisticated technical methods is today possible and supported; the accused and all those who can or should refrain from providing information in a criminal prosecution procedure should be informed: you can be silent not only here, but you should stop talking, even with your spouse and yourself,keep quiet forever. As observed, both the right to be informed about the right to abstain from declaring, and the right to abstain itself, are repealed. Not only the rules on proof suffer the disease. In the same way it happens with other fences that criminal procedural law has been building, as guarantees against criminal prosecution and as conditions whose strict observance legitimizes the state decision on the penalty; for example of opposing pairs: innocence and preventive detention based on the assumption and prevention of future events, public trial, suppressed through the application mechanism called "abbreviated trial" or consensual justice, aware of the old warning that "it is not possible qualitatively differentiate between the promise of an advantage and a threat,and a kind of judgment - improperly named - that literally abrogates the right of defense exercised in it, in those cases. In the same way that the mentioned expansion of institutional criminal law, a metaphor has been coined in criminal procedural law that points out the unequivocal meaning of e (in) revolution: “once a path of this type has been enabled, it becomes the passage of time on a wide avenue ”(with reference to certain material limitations that these applications originally possess).“Once a path of this type has been enabled, it becomes a broad avenue over time” (with reference to certain material limitations that these applications originally possess).“Once a path of this type has been enabled, it becomes a broad avenue over time” (with reference to certain material limitations that these applications originally possess).
Final assessment
The idea of an absolute, national and international punitive power, the basic duty of the national states and international communities, with the obligation to condemn and punish, as national and international courts have already resolved, of criminal law as a sanalotodo of any social disease, in a society that increases the risks of the things and mechanisms that it manages every day, an idea translated under the pseudonym of panpunitivism, neopunitivism or a fascination with criminal law, is contrary to the constitutional idea of a democratic state of law. The justification of punishment as a need for the victim, the only solution to their pain for the loss caused by the author of a right or legal asset that she is the bearer, is opposed to the mediatization of the use of force, reaction and, with it, punishment only through the State, origin of the birth of criminal law and basic assumption of a civilized society. A criminal law and criminal procedure that, in accordance with the constitutions and conventions on human rights, seek, in addition to regulating the reaction against those who violate certain legal assets, thus protect from the arbitrariness of the state bodies those who are at risk of enduring the exercise of public force - hence: charta magna of the accused - cannot, at the same time and according to the same normative instruments, under pain of suffering from schizophrenia, pursue being the weapon of punishment at all costs or any price in favor of the victim's pain that requires it.
It should be realized that only one of the mentioned openings - to call modern injuries to the basic legal principles of criminal law in some way - puts the entire rule in crisis, as happens, for example, with the nemo tenetur principle or the law to abstain from declaring when "undercover agents", "hidden cameras or microphones", "remote eavesdropping", etc. are admitted.
Some seek to encapsulate this criminal and criminal procedural law of enemies, to avoid confusion with criminal law or criminal procedure called "un-clear", respectful of the rule of law, or the transmission of its stigma to the latter, either to isolate the virus to a certain area of problems and thus avoid contamination of criminal procedural law under the rule of law. They forget not only the warning made immediately before, but their very warning about the transformation of the highway path, cited above.
Perhaps the solution does not consist in renouncing the idea of a criminal law and criminal procedure according to a democratic State of Law, looking for fictitious agreements to preserve the basic brocade that imposes the maxim, as several seem to suggest, but, for On the contrary, it resides in “showing, knowing and loyally discussing” the real problems, to find current formulations of the old principles that preserve coexistence under the protection of a democratic State of Law,… if this is still possible.
Footnotes:
1. Cf. AGAMBEN, Giorgio, State of exception (translation by Flavia and Ivana COSTA of the 2nd Italian edition), Ed. Adriana Hidalgo, Buenos Aires, 2005, a state that “has already become“ permanent ”rule, since“ the use of the constitutional emergency powers became the rule and not the exception “, since“ the temporary devices of crisis have become in some countries, and can become in others, durable and permanent institutions including in times of peace ”(the author quotes ROSSITER, Clinton L., Constitutional Dictatorship. Crisis government in the modern democracies, 1948, ps. 297 and 313).
2. Cf. DENCKER, Friedrich, Organized crime and criminal procedure, in „NDP“, Ed. Del Puerto, Buenos Aires, 1998 / B, ps. 486 and following. Legislatively consecrated, one of the biggest hypocrisies in this sense is constituted by Protocol 7 to the European Convention on Political Freedoms and Fundamental Rights (European Convention on Human Rights), by introducing two expensive principles to criminal procedural law: the prohibition of criminal bis in idem and the right of the convicted person to appeal, absent in the original convention (cf., in this regard, my Anfechtung der Verurteilung: Garantie für den Angeklagten oder Entscheidungskontrolle ?, in Festschrift für Hans-Joachim Hirsch, Ed. Walter de Gruyter, Berlin-New York, 1999, footnote No. 14, p. 948.
3. After finishing this small work for a conference, HASSEMER, Winfried, who accidentally read another work of mine in homage to a friend (last class as professor at the University of Buenos Aires), sent me his Sicherheit durch Strafrecht, conference concluded for the Strafverteidigertag 2006 (I believe, not yet published), which describes and properly addresses the same topics that, partially, we will deal with here (especially for this chapter and this conclusion, 4, 2, e).
4. Cf. KAUFMAN, Alejandro, lynching logic (social responses to the disaster in Cromañón), newspaper "Page 12", Buenos Aires, 6/30/2005, ps. 9/28; Also important, along the same lines, BRUSCHTEIN, Luis, Television is not innocent, „Page 12“, Buenos Aires, 7/1/2005, Contratapa.
5. I have already had to react with indignation, unfortunately, through newspaper articles against this conception, something that, however, also means acknowledging its existence and reality: Blumberstrafrecht, in „New Criminal Doctrine“, Ed. Del Puerto, Buenos Aires, 2004 / B, ps. 1 et seq.; Justice and opportunity, newspaper "Page 12", section "Opinion", Buenos Aires, 5/20/2005
6. Cf. my outdated text of Criminal Policy, Criminal Law and Criminal Procedural Law, in „Criminal Doctrine“, Ed. Depalma, Buenos Aires, 1978, ps. 301 et seq.; best and most current exposition of the phenomenon, in BINDER, Alberto, Introduction to Criminal Procedure Law (2nd edition), Ed. Ad-Hoc, Buenos Aires, 1999, First part, II, ps. 41 and following.
7. Cf. HASSEMER, Winfried,, Kennzeichen und Krisen des modernen Strafrechts, in “ZRP”, RFA, 1992, Heft 10, ps. 378 et seq. (reproduced as an introduction in Produktverantwortung im modernen Strafrecht, Ed. CF Müller, Heildelberg, 1996, ps. 1 et seq., and translated into Spanish in HASSEMER's book, Winfried-MUÑOZ CONDE, Francisco, The responsibility for the product in law penal, Ed. tirant lo blanch, Valencia, 1995, has rightly affirmed its current characterization as prima or sola ratio and the extension of its regulation to previously unsuspected regions: Responsibility for the product in criminal law, pp. 26 and 31 recently also HASSEMER, Winfried, Sicherheit durch Strafrecht, cited.
8. See, at the end, those who speak of panpenalism, neopunitivism, and a fascination with criminal law (footnote 35).
9. Cf. FERRAJOLI, Luigi, in Crisis of the political system and jurisdiction: the nature of the Italian crisis and the role of the magistracy, in "Penalty and State", year 1, nº 1, Ed. Del Puerto, Buenos Aires, 1996, ps. 125 and following; see also, by the same author, Diritto and raggione (2nd edition), Ed. Laterza, Roma-Bari, 1990, Cap. 2º, nº 8, ps. 80 et seq. (in Castilian, Law and Reason, Trotta, Madrid, 1995, ps. 103 et seq.), who uses the word inflation, well demonstrative of what he wishes to warn about; and, in the same sense, SILVA SÁNCHEZ, Jesús-María (cited in footnote 1), The expansion of criminal law. Aspects of criminal policy in post-industrial societies, Ed. Civitas, 2001, who prefers to use the word expansion of criminal law. For CANCIO MELIÁ, Manuel (joint book with JAKOBS, Günther),Criminal law of the enemy, Ed. Civitas, Madrid, 2003, ps. 62 et seq., This characteristic is almost enough to define the situation ultrasynthetically and he cites in footnote no. 2, an extensive bibliography that revolves around it and that should be consulted. Some defend this expansion: cf., from the political left, with an inverse proposal, of penalization with the support of new institutional legal assets, according to its clear ideological definition, GRACIA MARTÍN, Luis, Prolegomena for the fight for modernization and expansion of criminal law and for the criticism of the discourse of resistance (At the same time, a working hypothesis on the concept of modern criminal law in the historical materialism of the order of criminal discourse), Valencia, Spain, 2003.This characteristic is almost enough to define the situation ultrasynthetically and he quotes in footnote 2, an extensive bibliography that revolves around it and that should be consulted. Some defend this expansion: cf., from the political left, with an inverse proposal, of penalization with the support of new institutional legal assets, according to its clear ideological definition, GRACIA MARTÍN, Luis, Prolegomena for the fight for modernization and expansion of criminal law and for the criticism of the discourse of resistance (At the same time, a working hypothesis on the concept of modern criminal law in the historical materialism of the order of criminal discourse), Valencia, Spain, 2003.This characteristic is almost enough to define the situation ultrasynthetically and he quotes in footnote 2, an extensive bibliography that revolves around it and that should be consulted. Some defend this expansion: cf., from the political left, with an inverse proposal, of penalization with the support of new institutional legal assets, according to its clear ideological definition, GRACIA MARTÍN, Luis, Prolegomena for the fight for modernization and expansion of criminal law and for the criticism of the discourse of resistance (At the same time, a working hypothesis on the concept of modern criminal law in the historical materialism of the order of criminal discourse), Valencia, Spain, 2003.an extensive bibliography that revolves around it and that should be consulted. Some defend this expansion: cf., from the political left, with an inverse proposal, of penalization with the support of new institutional legal assets, according to its clear ideological definition, GRACIA MARTÍN, Luis, Prolegomena for the fight for modernization and expansion of criminal law and for the criticism of the discourse of resistance (At the same time, a working hypothesis on the concept of modern criminal law in the historical materialism of the order of criminal discourse), Valencia, Spain, 2003.an extensive bibliography that revolves around it and that should be consulted. Some defend this expansion: cf., from the political left, with an inverse proposal, of penalization with the support of new institutional legal assets, according to its clear ideological definition, GRACIA MARTÍN, Luis, Prolegomena for the fight for modernization and expansion of criminal law and for the criticism of the discourse of resistance (At the same time, a working hypothesis on the concept of modern criminal law in the historical materialism of the order of criminal discourse), Valencia, Spain, 2003.GRACIA MARTÍN, Luis, Prolegomena for the struggle for the modernization and expansion of criminal law and for the critique of resistance discourse (At the same time, a working hypothesis on the concept of modern criminal law in the historical materialism of the order of discourse of criminality), Valencia, Spain, 2003.GRACIA MARTÍN, Luis, Prolegomena for the struggle for the modernization and expansion of criminal law and for the critique of resistance discourse (At the same time, a working hypothesis on the concept of modern criminal law in the historical materialism of the order of discourse of criminality), Valencia, Spain, 2003.
10. On the contrary, HASSEMER, Winfried (cit. Note 6, hereinafter the Castilian edition), has rightly affirmed its current characterization as prima or sola ratio and the extension of its regulation to previously unsuspected regions: The responsibility for the product in criminal law cit., ps. 26 and 31.
11. In language it often happens that the expansion of the conceptual content of a word to infinity leads to it losing value, not defining anything, a phenomenon that I have tried to translate with an invented neologism, taken from the term bastard and turned into consummate action; HASSEMER, Winfried (cit. previous footnote), III, ps. 26 and following.
12. Quoted words that I borrow from DEMETRIO CRESPO, Eduardo, From "liberal criminal law" to "enemy criminal law", in "NDP", Buenos Aires, 2004 / A, I, p. 51.
13. Cf. HASSEMER, Winfried (cit. Note no. 24), p. 32; also ZAFFARONI, Eugenio Raúl-ALAGIA, Alejandro-SLOKAR, Alejandro, Criminal Law. General Part, Ed. Ediar, Buenos Aires, 2000, II et seq., Ps. 7 and following.
14. Cf. FERRAJOLI, Luigi (cit. Note at footnote 7); MAIER, Julio BJ, Ist das Strafverfahren noch praktikabel? (In Spanish, with the translation by Gabriela Córdoba, Is it still possible to carry out the criminal process within the framework of the Rule of Law ?, in AA.VV., New formulations in the criminal sciences. Homage to Claus Roxin, Faculty of Law and Social Sciences, National University of Córdoba, Ed. Marcos Lerner / La leer, Córdoba, 2001), in Krise des Strafrechts und der Kr criminalwissenschaften cit., II, ps. 246 and following. For CANCIO MELIÁ, Manuel (cit. Footnote no. 8).
15. Cf. KAISER, Günther, Krimologie (7th edition), Ed. CF Müller, Heidelberg, 1985, § 18, ps. 124 et seq., Who, for that reason, outlines his drawing of the practical penal system as a funnel that not only has an outlet limited by a tube of much smaller size than its inlet container, but, rather, built with holes on its walls, where the “liquid” that is left also escapes.
16. Cf. BARATTA, Alessandro, Viejas and new strategies in the legitimation of criminal law, in “Power and control”, Ed. PPU, nº 0, 1986, ps. 79 and following.
17. Cf. PASTOR, Daniel, The neopunitivista drift of organisms and activists as cause of the current loss of prestige of human rights, in „NDP“, Buenos Aires, 2005 / A, ps. 73 and following.
18. Cf. HASSEMER, Winfried, Product liability in criminal law, III, 2, p. 28 and 43 and following; Silva Sánchez, Jesús-María, The expansion of criminal law, 2, ps. 25 and following.
19. Cf. SILVA SÁNCHEZ, Jesús-María, The expansion of criminal law cit., 3.3.3.2., P. 100 (calls it, perhaps more aptly, a mandate of determination).
20. Cf. HASSEMER, Winfrird, Old and New Criminal Law, in Responsibility for the product in Criminal Law (joint work with MUÑOZ CONDE, Francisco) cit., B, III, 5, ps. 34 and following.
21. JAKOBS, Günther in conjunction with Cancio Melía, Manuel), Criminal law of the enemy, Ed. Civitas, Madrid, 2003, IV, ps. 43 and following.
22. Hassemer, Winfried, Product liability in criminal law, 4, I, p. 39.
23. Cf. BELING, Ernst, Criminal procedural law (Goldschmidt-Núñez translation), Press of the Univ. Nac. De Córdoba, Córdoba (RA), 1943, Introduction, § 1, I, p. two.
24. I still remember the initial example case for BAUMANN students, Jürgen, in the Grundbegriffe und Verfahrensprinzipies des Strafprozeßrecht (3rd edition), Ed. W. Kohlhammer, Stuttgart-Berlin-Köln-Mainz (RFA), 1979, p. 15 (case a) (Spanish translation of Conrado FINZI, Criminal Procedural Law, Ed. Depalma, Buenos Aires, 1986, p. 1): someone, who committed a murder in full use of his mental faculties without any alteration, appears in the prison before the major jailer and requests that the sentence be applied for a crime that he confesses at the time; The jailer replies, according to my addition: You do not even imagine all the procedures that you will have to carry out, what you will have to do and the time that will pass until you manage to enter here.
25. Cf., with the same forecast, SILVA SÁNCHEZ, Jesús-María, The expansion of criminal law cit., 3.3.3.3., P. 100; the same phenomenon noted by HASSEMER, Winfried, Old and New Criminal Law in Product Liability in Criminal Law (joint work with MUÑOZ CONDE, Francisco) cit., B, III, 5, ps. 36 and s. and C, I, p. 38.
26. Cf., on the same phenomenon, HASSEMER, Winfried, Sicherheit durch Strafrecht, quoted conference, IV, 2, d.
27. Cf. LANGBEIN, John H., On the myth of the written constitutions: the disappearance of the criminal trial by juries (translation by Alberto Bovino and Christian Courtis of the original publication in the „Harvard Journal of Law and Public Policy“, vol. 15, nº 1, ps. 119 et seq.), In „New Criminal Doctrine“, Ed. Del Puerto, Buenos Aires, 1996 / A, who compares plea bargaining with torture of the inquisitive rite; by the same author, Understanding the brief history of plea bargaining (translation by Lorena IRAIZOZ, revised by Christian COURTIS), in „NDP“, Buenos Aires, 2001 / A, ps. 59 and following.
28. See the literature of that time in my articles on The victim and the penal system, in Of crimes and victims, Ed. Ad-Hoc, Buenos Aires, 1992, ps. 183 et seq.; The entry of reparation as a third way to Argentine criminal law, in Criminal law today (tribute to Prof. David Baigún), Ed. Del Puerto, Buenos Aires, 1995, ps. 27 et seq.; Is reparation a third way of criminal law ?, in El penalista liberal (tribute to Manuel de Rivacoba and Rivacoba), Ed. Hammurabi, Buenos Aires, 2004, ps. 215 and following.
29. Cf. PASTOR, Daniel, The neopunitivista drift of organisms and activists as cause of the loss of prestige of human rights, in „New Criminal Doctrine“, Ed. Del Puerto, Buenos Aires, 2005 / A, I, ps. 73 and following.
30. Cf. CHRISTIE, Nils, A sensible amount of crime, Ed. Del Puerto, Buenos Aires, 2004, especially Cap. 4, ps. 79 and following.
31. Both CHRISTIE (quoted in the footnote above) and LANGBEIN (cit. Footnote No. 25) highlight the enormous gain of the official who exercises criminal prosecution (the prosecution service in continental law) to the detriment of the power of the judges, correlative to the power to agree rite or punishment with his persecuted. Furthermore, it is not by chance that the USA heads the percentage statistic for universal incarceration and that in Western Europe, this statistic, contrary to its historical evolution, is headed by England: its criminal-legal orders have led to a extreme the value of consensus for the imposition of a penalty.
32. The current formulation of the principle "there is no crime without prior law", in SOLER, Sebastián, Faith in Law, Ed. TEA, Buenos Aires, 1956, ps. 277 and following.
33. Cf. its organized crime and criminal procedure, in „New Criminal Doctrine“, Ed. Del Puerto, Buenos Aires, 1998 / B, p. 487.
34. Ibidem, p. 490.
35. Cf. GRÜNWALD, „NJW“ (Neue Juristische Wochenschrift), 1960, p. 1941, quoted by DENCKER, idem, p. 487.
36. DENCKER, idem previous notes, p. 489.
37. Cf., among others, PASTOR, Daniel, La neopunitivista drift… cit., Ps. 94 et seq.; SILVA SÁNCHEZ, Jesús-María, The expansion of criminal law cit., P. 68.
38. Cf. PASTOR, Daniel, The neopunitivista drift… cit., Ps. III, 2, ps. 96 and following.
39. As indicated by SOLER, Sebastián, in The current formulation of the principle "there is no crime without prior law" cit., P. 283, by reducing to the crime majesty any injury to the determination mandate.
40. Cf., in this sense, JAKOBS, Günther, Criminal law of the enemy (joint book with CANCIO MELIÁ, Manuel) cit., VII, 5, p. 56; DENCKER, Friedrich, Organized crime and criminal procedure cit., Ps. 490 and following.
41. Cf. SOLER, Sebastián, The current formulation of the principle “there is no crime without prior law”, p. 285.
