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La parte especial del Derecho Penal. Introducción — Transcript

by Gonzalo Javier Molina · 2,699 words · 433 segments · language en · Watch on YouTube

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0:02Before beginning the study of the
0:04special part of criminal law, we must
0:06make some clarifications by way of
0:08introduction to the study of this
0:10subject. First, remember that criminal
0:15law, special part, is part of criminal
0:18law. So, if it is divided into a
0:21general part and a special part, that
0:23has to do with a question of
0:25methodology, of the development of the
0:27subject, which is very extensive. So,
0:31there is a decision, and in some
0:33universities it is done this way, it is
0:35divided into a general part and a
0:37special part, but it must be remembered
0:39that it is the same subject. Therefore,
0:43the principles, the concepts, the
0:45theories that are studied in the
0:46general part are meant to be applied to
0:49the special part. This idea of dividing
0:53it into a general part and a special
0:55part has to do with the division our
0:57Criminal Code has had since 1921. It
1:01has two books. In the first book is the
1:03general part and in the second book is
1:05the special part. Currently, each of
1:08those books is in turn divided into
1:10titles. Currently, the first book has
1:1513 titles and the second book also has
1:1713 titles. Each of those titles is in
1:20turn subdivided into chapters. So, the
1:26idea of dividing it into a general part
1:28and a special part has more to do with
1:31methodology, with a pedagogical
1:33criterion, if you will, of dividing the
1:36subject for better exposition, taking
1:38into account its vast extent. However,
1:44there are other universities where a
1:47course on the general and special part
1:49is developed jointly. Of course, I
1:53suppose there isn't enough time to
1:55develop all the topics. In any case,
1:59criminal law is a single entity. So,
2:03the theory of crime, the constitutional
2:05principles, the criteria for the
2:07application of the law in relation to
2:08time and space that are studied are
2:10topics that are studied in the general
2:12part and will be applied to the special
2:14part. So one must constantly remember,
2:19when we are studying the crimes of the
2:21special part, to constantly remember
2:24those criteria of the theory of crime,
2:26constitutional principles as limiters
2:28of punitive power, and all the concepts
2:31that will have been seen in the general
2:34part. So, the way to approach the study
2:40of the special part, which implies the
2:42analysis of each of the figures, not
2:44only of the Criminal Code in its second
2:47book, but also of special criminal laws
2:49. The methodology of study should
2:53therefore be to analyze what are the
2:55elements that characterize each of
2:58those figures and distinguish them from
3:00the others. What characterizes simple
3:03homicide and distinguishes it from
3:04manslaughter? or from aggravated
3:07homicide, fraud, theft, or rape.
3:12Generally, the major difference between
3:14one legal figure and another lies in
3:16the realm of typicality. That is where
3:20the distinct elements between one crime
3:22and another will be seen. According to
3:27the current conception of criminal
3:30dogmatics, a crime continues to be
3:32defined as conduct that is typical,
3:34unlawful, and culpable, but for many
3:37years now, it has been interpreted that
3:40this first part of the criminal offense
3:42, especially within typicality, has an
3:45objective aspect and a subjective
3:47aspect. The objective aspect is
3:51understood as everything that happens
3:53in reality, in the real world, outside
3:56the mind of the perpetrator or
3:57perpetrators; and the subjective type
3:59as what happens in the author's head,
4:02in the mind, in the representation of
4:04the perpetrator or perpetrators of the
4:06act at the moment of committing it or
4:08omitting it, in the case of omission
4:10crimes. So, all the concepts of the
4:16theory of crime are applied to each of
4:18the legal figures. The radical
4:21difference will be in the realm of
4:23typicality. It is important the
4:28construction of the objective type. It
4:31is important to know which elements go
4:33into the objective type, because the
4:38construction of the subjective type
4:40will automatically depend on that
4:41construction of the objective type. If
4:45intent is the representation, or the
4:47representation and will, of the
4:48objective elements of the criminal type
4:50, then it is very important to know
4:52what the objective elements of the
4:53criminal type are. That is why we must
4:56stop at each criminal figure. First, we
5:01will look at the relationship with
5:03constitutional principles, in the
5:05determination of the protected legal
5:07interest, but fundamentally we must
5:08stop at the construction of the
5:10objective type. What elements? Which?
5:15elements are the ones that constitute
5:17the subject matter of the prohibition.
5:19That is what the objective type is
5:21about. The killing of another under
5:23Article 79. What elements does it
5:26require from an objective point of view
5:28? Rape, fraud, what elements do they
5:31require from an objective point of view
5:33? Once I am clear about what those
5:37elements of the objective type are,
5:39then I will also construct the
5:40subjective type. A very clear example
5:46of this issue of the construction of
5:49the objective type and the problems it
5:51can bring can be seen in the scope of
5:54the crime of abortion in Article 85 of
5:57the Criminal Code. There we will begin
6:02to differentiate that in the text of
6:05the law, in the text that describes
6:08each of the criminal figures,
6:10expressions are mentioned or used that
6:13will not always be part of the
6:16objective type. In other words, not
6:21everything written in the text of the
6:23law is part of the objective elements
6:25of a crime, but only, I reiterate, that
6:27which forms part of the prohibited
6:29matter, that which helps me explain or
6:32define what is criminally prohibited.
6:36For example, the sentencing range
6:38provided for each criminal offense is
6:39not part of the objective element of
6:41the crime. In Article 79, whoever kills
6:44another shall be punished with 8 to 25
6:46years in prison. Well, those 8 to 25
6:49years in prison are not part of the
6:51objective element. I reiterate, this
6:54issue of defining what is part of the
6:57objective element and what is not is
7:00important, very important, because it
7:02is from there that the subjective
7:05element will be built like a mirror,
7:07like a reflection. Well, let's start
7:13first with the subject of
7:14constitutional principles. Criminal law
7:17is not an island within the legal
7:19system; it is limited by constitutional
7:21principles, meaning it must conform to
7:24those constitutional principles which
7:26are higher norms, or rather, the
7:28constitutional block. So, generally,
7:33when speaking of constitutional
7:36principles, we study or refer to the
7:39norms of the Constitution that limit
7:42punitive power. So let us recall the
7:47principle of harm, the principle of
7:49legality which has various
7:51manifestations, the principle of
7:53culpability, of minimum intervention or
7:56ultima ratio. So, those are
8:00constitutional principles that limit
8:03punitive power and indicate to us how
8:05far the State can go in its attempt to
8:08sanction human behavior. How far can
8:12the legislator go? How far can the
8:15judge go in applying or creating those
8:17criminal norms? What are they? Now then
8:23, also from the Constitution and
8:26International Treaties, in addition to
8:29these limitations on punitive power,
8:32there also arise, and over the years it
8:35is seen more clearly, obligations to
8:38criminalize; that is to say, exactly
8:41the opposite. The Constitution now not
8:46only limits punitive power, setting a
8:49containment framework and telling the
8:52State: "you can only punish up to here
8:55or in this way," but now also, for
8:57several years, it tells the State that
9:00it must criminalize certain behaviors,
9:03that it must define such and such a
9:06crime in its domestic law. So, the
9:11relationship between constitutional law
9:14and criminal law is no longer simply a
9:17relationship of limitation by the
9:19constitutional block, but also one of
9:22imposing the definition of crimes. What
9:27was once a simple decision of the
9:28State's criminal policy—that is, the
9:30State decided whether to criminalize
9:32adultery, for example, or not. Well, it
9:38turns out that international law now
9:40imposes an obligation on states to
9:43define certain crimes—not adultery,
9:46certainly, but it does mandate the
9:49criminalization of certain behaviors
9:51deemed necessary to include in the
9:54punitive system, because they are
9:57considered acts that could affect the
10:00international community as a whole.
10:05Therefore, states are obligated, uh,
10:07through those treaties, to criminalize,
10:10for example, the crime of torture, the
10:12crime of enforced disappearance of
10:15persons, certain crimes against public
10:17administration—a number of crimes
10:20against public administration—and
10:22drug trafficking offenses; these are
10:24all behaviors we have in our penal
10:26system, not since the original 1921
10:29Penal Code, but because we are bound by
10:33international treaties that the
10:35Argentine State signed at the time, and
10:38consequently, it has committed to the
10:40international community to comply with
10:43those treaties, and those treaties
10:45often impose the obligation to
10:47criminalize such conduct. Now, there is
10:53a significant number—easily more than
10:5530 international treaties or
10:57instruments—that specifically
10:58obligate the Argentine State to
11:00criminalize certain acts. Within those
11:06international treaties or instruments,
11:08not all have the same intensity of
11:10obligation. Some not only tell the
11:16state, the member states, that they
11:18must criminalize, but they also dictate
11:20how the criminal provision must be
11:22drafted in their internal code or law.
11:27Others simply say, "Use criminal law to
11:29prevent these types of behaviors." But
11:35those are the treaties that clearly
11:37oblige the Argentine State to legislate
11:39within its, uh, domestic sphere. And
11:43they not only establish the obligation
11:45to create crimes, but they also often
11:47say that attempts must be punished, as
11:49well as illicit associations to commit
11:51those crimes, and that certain crimes
11:53shall not be subject to a statute of
11:55limitations. In other words, these
11:58treaties also speak of general
11:59provisions, let's say, or topics and
12:01concepts that we already have and know
12:03from our general section of the code.
12:08Now, there are other treaties, the
12:10majority, which simply establish
12:12generic protection for certain legal
12:14interests, but that generic protection
12:16should not be confused with the
12:18obligation to criminalize or with
12:21criminal protection. So, the
12:24constitutional protection of certain
12:26rights, assets, or interests is one
12:28thing. Criminal protection is another,
12:32which was traditionally a matter of
12:34criminal policy decided by each state.
12:38Whether we punish it or not is no
12:40longer just a choice, but for some time
12:42now, due to certain treaties, it is
12:43also imposed as an obligation within
12:45the scope of international law. For
12:50example, in the American Convention on
12:52Human Rights, and in the International
12:54Covenant on Civil and Political Rights,
12:56the right to honor and the right to a
12:58person's reputation are provided for or
13:00enshrined. This means that states have
13:04an obligation to sanction or
13:06criminalize offenses against honor,
13:09such as libel and slander. We have had
13:13them in our code since 1921, both libel
13:15and slander. But if a deputy or senator
13:19proposes to repeal those statutes,
13:21would that reform be unconstitutional?
13:26Well, I clearly understand that it
13:27would not. In other words, what the
13:30American Convention on Human Rights and
13:33the Covenants on Civil and Political
13:35Rights establish is the generic
13:37obligation to protect people's honor,
13:39but it does not say that member states
13:42are obligated to criminalize conduct
13:44that affects those legal interests.
13:47That is stated in other treaties. And
13:49when that is the intention of the
13:51treaty, it states it clearly, and even
13:54says how it has to uh, appear, let's
13:58say, the language in the Penal Code,
14:00and it even says that one must punish
14:02participants, attempted crimes, et
14:04cetera, et cetera. On the other hand,
14:07if what is stated is simply a generic
14:09protection, that does not necessarily
14:11mean that the State is obligated to
14:13criminalize that type of conduct. If
14:16the State chooses to do so, it is a
14:17matter of criminal policy. In any case,
14:20we must verify if the criminalization
14:22of offenses against honor does not, in
14:24turn, affect other constitutional
14:26rights that serve as a limit to
14:28criminal law. Right, the example of the
14:33crime, sorry, yes, crimes against honor
14:35and the legal interest of honor is one
14:37example. We can find many other
14:41examples. The right to decent housing,
14:45the right to work, the right to life,
14:47which precisely generated a great
14:49discussion with the reform regarding
14:51abortion crimes under Law 27610 in
14:56these last few months in our country.
15:00So, constitutional protection is one
15:02thing, and criminal protection is
15:04another. Only when treaties expressly
15:08oblige states to criminalize conduct is
15:10the state obligated to create the crime
15:12, and if it already exists, it is
15:14obligated to maintain it. Hm. But if it
15:18simply speaks of general protection,
15:20that does not imply an obligation to
15:22use the penal system. We will have to
15:25see what other instruments the State
15:27has to protect those rights, which it
15:29clearly must protect because it is
15:31obligated by those international
15:33instruments, but not necessarily
15:35through criminal law. Very well, other
15:40important topics that must be clarified
15:42as an introduction to the special part.
15:46The legal interest as a criterion for
15:49interpreting criminal statutes, as can
15:51be seen in the special part. Each title
15:55of the second book of the Penal Code
15:58and each special criminal law attempts
16:01to protect a criminal legal interest,
16:03and that is precisely what gives it
16:06legitimacy from the perspective of the
16:09principle of harm. The constitutional
16:12principle of harm only authorizes the
16:14creation of a crime to the extent that
16:17a legal interest, the legal interest of
16:19others, is affected. That is why the
16:23study of the protected legal interest
16:25is of great importance for each of the
16:28crimes. This explains why, when one
16:32begins the study of each crime or group
16:35of crimes, for example, crimes against
16:37persons, crimes against sexual
16:40integrity, or property crimes. We try
16:44to explain what that protected legal
16:47interest means: life, sexual integrity,
16:50property, and so on. Sometimes it is
16:54difficult to explain the legal interest
16:56because it is often said that legal
16:58interests are invented precisely with
17:00the idea of overcoming the obstacle
17:02posed by this principle of harm. So,
17:06there are legal interests that are more
17:07difficult to explain than others. Uh,
17:10for example, the legal interest of
17:13human life or physical integrity is
17:15clear; honor already generates
17:17discussion, as does sexual integrity,
17:20but there are other legal interests. Uh
17:24, for example, public health has been a
17:26subject of discussion as to what public
17:28health means as a legal interest in
17:30drug-related crimes, for example, right
17:31? Uh, so, there are others that are
17:36more difficult to explain and define.
17:40Now, the legal interest, the
17:42explanation, and the concept of legal
17:44interest are important in each case,
17:47because they often help in the
17:49interpretation of criminal statutes and
17:52in setting the limits of each criminal
17:54figure in many issues discussed from a
17:57dogmatic point of view: how should it
18:00be interpreted? Let’s see, to give an
18:04example, the case of trespassing under
18:06Article 150 of the Penal Code. It is
18:10debated whether trespassing is only
18:13entering without the owner's permission
18:15or if it would also be trespassing to
18:18enter with the owner's permission, but
18:20then refuse to leave when the owner
18:23asks or demands that we leave. Is there
18:26a crime there as well? Well, on one
18:28hand it is said yes, and on the other
18:29hand it is said no. Therefore, the
18:33protected legal interest is often a
18:35criterion that will serve us to
18:37interpret many of those discussions
18:39that exist from a dogmatic point of
18:41view in the different figures of the
18:43special part. It may not be enough to
18:48solve every problem, but it will often
18:51provide us with some criteria to seek a
18:54solution in that regard. Furthermore,
18:59the general issues will reappear in
19:01every specific offense that we analyze
19:03and study. The distinction between
19:08endangerment and injury crimes, the
19:10problem of concurrent offenses, active
19:13and omissive crimes, and the entire
19:15concept and dogmatics of improper
19:18omission crimes will be issues that
19:20accompany us throughout our study of
19:22the special part; that is, in the
19:25analysis of each criminal offense.
19:29Specifically, as we mentioned at the
19:31beginning, criminal law's special part
19:34is nothing more than the application of
19:36that general part to each specific
19:39figure, to each particular crime. M.

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