The abyss and the moon: symbolic criminal jurisprudence in Peru
Marco Bustinza Siu
DLA Piper, Lima
Criminal law is a form of social control that seeks to preserve essential legal assets by protecting societal norms, which in turn are composed of several subsystems. Thus, for example, the special criminal offences described in the Penal Code include crimes that have to do with integrity and personal freedom, among them crimes of corruption of officials and economic crimes. The structure of those crimes is becoming increasingly complex depending on the number of normative elements of the type – remissive court (since they are not reprehensible to the senses and that to give an end to the legal type it is necessary to refer to other general regulations of an administrative nature). In critical discourse, this trend has been called ‘regulatory criminal law’.
The state, through its judicial agencies, has the subjective right (ius puniendi) to prosecute criminal offences that it considers to be of special relevance, either because it seeks to restore social peace arising from an intersubjective conflict of interests (heterocomposition of the conflict through a competent jurisdictional institution); or to preserve essential legal assets for its development, because only through these assets is the interaction of social actors and permissible social contacts possible, which in turn is only possible if the concept of institutionalised freedom is used (the latter term coined by Pawlik in a short publication bearing the same title); or to justify the imposition of a penalty against the offender. This is where expressive theories of penalties have been developed, because some sectors of criminal doctrine consider that the general preventive discourse does not sufficiently justify state interference, regarding it as an imposition in the sphere of the citizen’s individual and institutionalised freedom.
The punitive state function has limitations that in my opinion stem from the principle of fragmentation of criminal law, which can only react and only as a last resort. Thus, for example, and from a contemporary perspective, the principle of non-contingent response has been developed, which holds that to achieve consensus of a certain legal type one must be cautious, because it is from these administrative agencies that symbolic criminal law is born. In symbolic criminal law, a country’s legal system sets out legal types – for instance, types of crimes – which are copied from other legal systems but are not adapted to the country’s reality (this is sometimes called cloning of criminal offences) or because they are dealt with in practice by legal types that refer to criminal law that protects the integrity and freedom of people. Then, these administrative agencies act in the background, through reports about alleged administrative irregularities, according to the scope of their competence, where it is suggested that criminal investigations be initiated, and judicial or prosecutorial agencies sometimes without the slightest criterion assume that said report is relevant without having discerned whether the behaviours attributed to the alleged perpetrators of a criminal offence are relevant. Symbolic criminal law, from its invention to its execution in criminal jurisprudence, lacks an essential presupposition: the correct interpretation of the legal type.
As a consequence, jurisprudence tends to become erratic, lacking uniform criteria, creating concepts that do not exist even in the general part of the Penal Code, much less in the catalogue of criminal offences set out in the Code’s special part. There are also legal operators who refuse to apply a judicial mandate (a sentence) under the pretext of a peculiar interpretation of the adjective law or substantive law.
Among the positive effects of final judgments, two are considered essential:
- Enforceability: this constitutes an enforceable title and gives rise to the execution process in order to execute what is judged; and
- Prejudiciality: this is the positive effect par excellence. It occurs when to resolve what is raised in a certain process, it is necessary to start from what was already sentenced before with a substantive resolution in another previous process, with respect to the operative part or ruling.
I believe that when these two conditions can be fulfilled, symbolic sentences will be avoided, and it is necessary that our administrative agencies take the creation of criminal offences with greater caution, for instance, through a cost-benefit analysis of proposed bills. Furthermore, the ‘intermediate’ agencies know what is relevant in the realm of criminal law, and should not open preliminary investigations in hopes of greater budgetary allocations of the entity to which they belong.
For now, we are left to opt for the abyss – the inertia of the current state of affairs – or the moon – the longing to enact legal approaches copied from abroad, based on theories that may work in other countries and societies, but that may have no correlation to ours.
1Jesús Silva Sánchez, Regulatory criminal law? (INDRET) pp 1–4 https://raco.cat/index.php/InDret/article/view/293084/381595 [date accessed 15 December 2021].
2 Juan Bustos Ramírez, Complete Works, Volume I, Criminal Law, (PG, ARA, Lima, 2008) pp 150 et seq.
3Those who are interested in delving into the current state of theories of punishment should watch the keynote lecture by Prof Dr Juan Pablo Mañalich www.youtube.com/watch?v=v47gvGNPi1s [date accessed 15 December 2021].
4 Felipe Villavicencio Terreros, Limits to the punitive state function (Derecho & Sociedad, Lima) pp 1–24.
5 César San Martìn, Lessons in Criminal Procedure Law (INPECCP, Lima, 2020) p 600 et seq.