As we know, the State cannot and should not ignore the criminal question, it has had and has a policy to confront it, this is what has become known as Criminal Policy, this controversial term.
Any definition that is taken as a reference of Criminal Policy, part of a premise, must be understood fundamentally as State policy and therefore of the dominant groups, so it is always ideological and represents the interests and points of view of the hegemonic forces without that is why it is no longer closely linked to the historical development of Law, to the scientific content of the legal.
The term of Criminal Policy is attributed by some to Quistorp, by others to Kleinshrod and others to Feuerbach, and it begins to spread from 1800 and since then it has been present in criminal law; For the latter, who in the early 19th century was one of the first to use this expression, defined it as the set of procedures used at any given time to combat crime.
Criminal Policy consists of discovering and rationally organizing the many possible solutions with the various underlying problems and in a way that the criminal phenomenon has.
All criminal policy is necessarily sustained and supported by a criminal philosophy, a reflection on the foundations of justice, the legitimacy and the limits of the right to punish, the rights of man, the treatment of criminals by society and the role of moral in the regulation of collective life.
Like all legal systems, criminal law is built on the joint influence of current economic needs and criminal ideologies.
For his part, Bernat de Celes defines: Criminal Policy must be understood as the policy pursued by the government of a country with regard to:
1. - the application of criminal law,
2. - the revision of criminal law,
3. - crime prevention.
4. - the administration of criminal justice (including the police)
5. - the treatment of the offender.
Criminal policy also encompasses all social policy efforts especially directed at the social costs resulting from crime, to distribute these social costs equally among the parties involved, the offender, the victim, and the political community.
On the other hand, the most common definition of social policy is the one expressed as the political concern of the public administration with social services such as health, education and the social security system to remedy specific social problems or pursue objectives with which it is being agree.
In its evolution, while criminology deals with criminality, Criminal Policy is concerned with reducing it to the minimum possible as part of general government policy, the latter as well as the former has a long and remote history that intersect.
When reforming the existing legislation, the Criminal Policy should have resocializing effects on the criminal's personality. The conclusion was that crime was essentially the result of personal characteristics, whatever the agreed acceptance to the action of external factors, thus giving a parallel between the dominant tendencies of traditional criminology and the Criminal Policy of the time.
The subsequent evolution of the term shows the influence that penalists and correctionalists have on it, which turned out to be the busiest on the subject, the former immersed in crime, almost exclusively, and the latter in the rehabilitation of the offender, without dealing with the correlation between crime and development, ignoring above all that the modification of the structure of society is an essential element in reducing crime to a bearable extent; It should be pointed out that although re-socialization or readaptation is affirmed as means of combating crime, the favorable and unfavorable results obtained in reality have given rise to a radical Criminal Policy movement, which is not new, calling for the abolition of criminal law.
In 1927, Emilio Langle in " The Theory of Criminal Policy ", offers us valuations and novel, transcendent and advanced contributions for the time, by expressing "… the importance that Criminal Policy has as a formalizer of the means of fighting crime, its pragmatic nature, the desirability of differentiating it from other disciplines including criminology, criminal sociology and its critical legislative purpose, adds that it must use the results obtained for the experience to be inspired by the most advanced scientific systems, to study comparative criminal legislation, to consider the legislative precedents and the institutions rooted in the legal conscience of the nation ”.
Likewise, in 1960, P. Conill proposed variations to the traditional current of a narrow criminal policy conceived, stating that in the consideration of the criminal act other elements must be taken into account that are merely linked to the will of the offender, concluding with the appreciation that “that the Criminal Policy is derived from the legal texts, which is only one aspect and not always the most pointed.
Beginning in 1960, the United Nations recommends focusing Criminal Policy as part of general policy and adds that it must be duly integrated with the others, related to democratic objectives, and should include everything that can prevent crime, also pointing out that a policy should be formulated. Criminal Policy model. This not easily materialized approach, also ambitious in relation to the preparation of the model taking into account the different positions and uneven development existing in all countries, has the merit of showing the existence of the possibility of a Criminal Policy that is broader than criminal law. conceived in earlier times.
In this sense, as a theoretical proposal, López - Rey points out that: The acceptable essential elements of development, in which all the others are summarized, “are the rights to liberty, equality, dignity and security and that the four in turn constitute the basis of all Criminal Policy since its preservation in social, economic, industrial and other plans will reduce crime. ”
Today, although not without criteria to the contrary, the development-Criminal Policy correlation is affirmed and highlighted, and around it it is stated: “That criminal codes, being the legal expression of criminality, must be prepared in accordance with the evolution of development, as criminal codification is a socio-political task, which requires deep and careful factual investigation, that crime prevention programs must be coordinated and / or of very diverse preparation and profession in order to can take into account the multiple aspects that affect the correlation development-crime,concluding then that Criminal Policy can no longer be left solely in the hands of the members of the criminal justice system and the elements related to them, but requires the coordination and intervention of a variety of professionals.
Currently, there is a current that has long held that: “ Any change due to development requires criminal and criminological attention, taking into account the need to investigate, given that a plurality of aspects are intertwined and it should not be simplified because the increase or decrease in crime depends on the nature of the development that is intended; that in the aforementioned correlation, the functioning of criminal justice plays a positive or negative role, depending on whether it is good or bad, and that the effectiveness of criminal policy requires adequate coordination and planning. ”
As a proposal at the international level, other elements emerge and are incorporated into the Criminal Policy of the current moments, being among the most prominent: "The respect that is requested of human rights, the cost of the Criminal Policy, the realization of its planning as part of national development planning, promoting the participation of the local, regional community in justice, as well as that of various institutions in its formulation, as it has become evident that it cannot be considered a monopoly of criminals, prosecutors and other professionals in criminal or procedural law, development and the distinction established between developed and developing countries, without this implying that in any case it is less criminal in the former than in the latter,in spite of being held by some that development is a conditioning element of criminality.
Criminal Policy becomes necessary, by virtue of the existence of the phenomenon of criminality, which is its raison d'être, but it also requires transforming itself by virtue of the non-functionality that can be presented by measures that aim to protect society and legal and collective assets are taken against this phenomenon and its development, deals with how to build criminal law in the most appropriate way, so that it can correspond to its mission to protect society.
Traditionally, Criminal Policy has been considered as a criticism and proposal for the reform of penal norms, in a broad sense, as well as the adequate organization and improvement of the state device of criminal prosecution and execution of the sentence, said Göppinger. While Liszt considered that the Criminal Policy reveals to us which is the one that should govern, also ruling on the opinion of criticism and reform, considering that the Criminal Policy should promote reforms that must be established in positive law in order to achieve better results in the fight crime.
Criminal Policy has also been defined as a systematic set of principles based on scientific investigation of the causes of crime and the effects of punishment, according to which the State must carry out the fight against crime through of grief and related institutions.
In the fight against crime. Lange, after arguing that Criminal Policy aspires to "combat crime, inquiring into its causes and proposing appropriate remedies," says that it performs two functions: it is critical and legislative; it must deal with the investigation of the "causes of crime, effective means to fight it and legislative reform inspired in that practical sense".
On the other hand, the practical function of Criminal Policy is, ultimately, to make possible the best structure of these positive rules and to give the corresponding guidelines both to the legislator who must dictate the law, and to the judge who must apply it.or the executive administration that has to materialize it. For this reason, we agree with Moreno Hernández that: “Criminal Policy includes the legislative, judicial (or procedural) and executive sectors (execution of sentences), in which the Iuspuniendí that corresponds to each of the State organs is exercised.. Due to the consideration of these sectors, it is also common to speak of a legislative Criminal Policy, a judicial Criminal Policy and an executive Criminal Policy, which will correspond, in legislative matters, with the Penal Code, the Criminal Procedure Law and the Law. of Execution of Sanctions ”.
The definitions that are included are not all that we could provide since around the Criminal Policy and its evolution, influencing each other and for the subsequent development or for the decline of some of them, the formulations abound, which is totally legitimate given that the author's position and attitude is decisive in its elaboration, that is, whether it is passive, uncritical, disinterested in influencing practice, contemplative or.. Prevention and fight against crime, its causes and effects; obtaining and carrying out directive criteria for the configuration, interpretation, application and reform of the penal norms.
Preparation and systematic and organized exposition of directive criteria, strategy, social tactics, methods and principles with which the State faces crime, and aims to achieve optimal control of it, linked to the criminal sciences, the Criminal Justice system, criminological investigations and the social, economic, political, cultural reality, that is, the development and evaluation of the social frame of reference, which is to say that its ways, methods and content may not always be the same even in the same society or territory.
Determination of the need for punishment, its purposes, and criminalization and decriminalization.
Elaboration of ethical, economic, political and social criteria that will guide the fight against crime, its causes and effects.
These objectives demonstrate the link between Criminal Policy and Criminology that investigates the criminal phenomenon in all its aspects with Social Policy, whose practical function is to transform the living and well-being conditions of the population and influence the reproduction of the social structure., in conceptions, behaviors and social relations and with Criminal Law, which establishes the positive precepts with which society faces the criminal phenomenon.
In this way: "the aims of justice are not only given for the rehabilitation or re-socialization of the offender, but also for achieving justice that at the criminal level preserves fundamental rights, such as equality, security, dignity and freedom."
In the specialized texts there are coincidences when pointing out the characteristics of the Criminal Policy, among these we can mention that it must be:
Pluralist: Because criminal activity is influenced by multiple factors also related to different situations or conditions, which require taking into account various methods and various ways or paths to obtain the proposed end.
Dynamics: Because it must take into account the social changes and variations that arise and occur both in nature, society and in the individual.
Multidisciplinary: Because it must be a collective work of political scientists, criminologists, economists, sociologists, doctors, psychologists and jurists, since it should not depend only on the opinions of the latter but on those of a group.
Realistic: Why it must be based on facts observed and scientifically proven, and adapted to the needs of the community so that it can be carried out with the means available or with those that can be created, that is, it must not be empirical or improvised.
Democratic: It must evolve from individual humanism to humanistic socialism.
Politics: You must dedicate yourself to ending cultural, political, social and economic injustices.
International: You must take into account the experiences and results of other latitudes and countries. "
Furthermore, it is argued that its content, purpose and feasibility require a prior study that allows knowledge and planning of crime trends, of its various modalities in various areas, educational, economic and emigration, among others.
In this sense, the United Nations in its resolution 36/21, of 1981, on criminal justice, asks governments to carry out the necessary efforts to establish on that basis, criminal justice taking into account political and economic factors., cultural, social and others in order to establish criminal justice based on the principles of social justice.
Under this prism, the United Nations Crime Prevention and Control Committee, in March 1984, adopted the Guiding Principles on Crime Prevention and Criminal Justice in the context of development and a new international order, in which it summarily summarizes the heretofore exposed and especially the correlation proposed, maintaining in this regard that:
• Changes in the social and economic structure must go hand in hand with relevant reforms of Criminal Justice at the national and international levels.
• Socioeconomic injustices must be eradicated.
• The search for new directions must take into account the Principles of the United Nations Charter.
• The need for criminal policy planning is stressed as aspects not only of the national policy as a whole, but also in relation to that of its various sectors.
• Crime prevention must be considered as an instrument of Social Policy.
• There is an evident correlation between criminality, development and criminal justice.
• A reevaluation of criminal policy and practices should be conducted periodically.
• Unlimited access to criminal justice must be established, as well as ensuring community participation, taking due account of human rights, and creating criminal social justice.
• Crime prevention is effective in the formulation of the penal system and in its operation, careful consideration must be given to the direct and indirect costs of crime, as well as the social consequences of its increase.
• technology should be used, but not misused.
• Greater international, national and regional cooperation is required.
• An international criminal jurisdiction must be created (which does not mean the creation of an International Court of Criminal Justice).
Conclusions
After this analysis, we consider that the Criminal Policy, among others, has the following purposes:
- It is formalizing the means of fighting crime to prevent crime.
- Use the results obtained from experience and be inspired by the most advanced scientific systems, to study comparative criminal legislation, consider legislative precedents and institutions rooted in the legal consciousness of the nation ”.
- Achieve that criminal codes, as the legal expression of criminality, must be prepared in accordance with the evolution of development, as criminal codification is a socio-political task.
- To deepen in the respect that is asked of human rights, the cost of Criminal Policy, the realization of its planning as part of national development planning.
- Furthermore, it is argued that its content, purpose and feasibility require a prior study that allows knowledge and planning of crime trends, of its various modalities in various areas, educational, economic and emigration, among others.
- Aim to establish criminal justice based on the principles of social justice.
- Promote reforms that must be established in positive law in order to achieve better results in the fight against crime.
Bibliography
Ferrajoli and Young. Authors cited by Martínez Sánchez M. Op. Cot. Page 3.
De la Cruz Ochoa. Brief sketch of Cuban Criminology. 1995
Reyes José Rigoberto. Organized Crime and Criminal Control.
United Nations Convention Against Organized Crime.
Emilio Langle. Criminal Policy Theory. Editorial REUS 1927. Madrid.
Aniyar de Castro Lola. Criminology of Liberation. Venezuela. Editorial University of Zulia. 1987
Zaffaroni Eugenio Raúl. The General Part of the Draft Penal Code. Op. Cit. P. 14.
