HomeOpinionWhat happened to the Penal Code?

What happened to the Penal Code?

The last serious attempt to develop a new Penal Code occurred between 2000 and 2002, during the government of President Chávez. I remember that I was part of the commission in charge of writing the general part, the most important because it deals with criminal legal dogmatics, that is, what refers to the theory of crime and punishment. Then, time passed as if forgetting what had been done and some reform projects appeared, while in some sectors the idea of ​​a new code was reinforced that would bring together in the special part all the crimes, those of the current code and those that are in laws. specials. However, it seems that what has been done to date has ended in nothing.

It is important to return to the idea of ​​the new Penal Code, but with awareness and knowledge of what should be done, thinking about it without capricious proposals. It must be done from the criminal approach of the Constitution, conceived within the framework of a Constitutional State of Law whose characteristic is none other than the subordination of the law to constitutional principles, which forms a limit and, in turn, that subordination completes democracy. The constitutionally established rights correspond to prohibitions and obligations imposed on the powers of the majority so that they are not absolute. But this subordination of the law to the Constitution completes the exercise of democracy because these principles and obligations are configured as guarantees of the rights of all against abuses. So it has been said. So, remembering Santiago Mir Puig, a social and democratic State of law must not only fulfill its function of protection against crime, but it must do so without exceeding the limits imposed by the Constitution on the exercise of power.

From the perspective of fundamental rights, legislators and judges are limited. This means that criminal regulations must be carefully thought out, both in their creation and in their application. For example, in terms of freedom of expression, everyone has the right to express their ideas or opinions through any means of communication. This means that the constitutional order does not allow the act of expressing an opinion or an idea to be classified as a crime, much less for an opinion or an idea to be converted into a crime of another nature, such as a hate crime. That can't happen.

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