We share the column written by our partner and professor of Criminal Law at the Universidad de Chile, Gabriel Zaliasnik, and Luis Varela Ventura, professor of Criminal Law at the Universidad de Antofagasta.
In the history of Criminal Law the battle of ideas has never been merely dogmatic, but has more often than not had a political substratum that precedes and accompanies them at all times. This political-criminal struggle has had as contending forces – with the subsequent defeat of the totalitarian side of the discipline on the European battlefields – the position of the guarantor, on the one hand, versus the authoritarian impulses, on the other.
The former, criminal legislation at the service of the guarantees of the Rule of Law, has been characterized by being consistent with the defense of fundamental – and immovable – precepts of that political conception, namely: freedom, equality and the humanity of its penalties. In criminal matters, the fundamental precept of freedom has been expressed in the apothegm “nullum crimen, nulla poena sine lege” and all its political and technical consequences, in the understanding that only the strictest legality can guarantee legal security, and with it, the exercise of individual freedoms.
Therefore, the fundamental precept of equality has been translated into the technical precipitate of what we know today as typicity, that is, that all actions of the person that assume said nomen iuris are equally subsumed together with the respective equality of penalties. That is to say, the prohibition of exceptions or exceptions between individuals based on purely personal considerations.
Humanity, finally, was expressed in the rationalization and proportionality of the punitive reaction, insofar as the penal norm does not treat the penitent as an enemy to be destroyed, fulminated, or put to death as a person. In other words, the containment of the arbitrariness of the bureaucratic agencies of criminal prosecution, since such arbitrariness is always a latent threat to the above fundamental precepts.
Criminal authoritarianism, whatever its color, whatever its justification, always presents itself in the same way, that is, seeking to pierce such precepts. As the national legislative evidence shows, today it is back in the form of a profuse punitive legislative cavalcade (see Guzmán, José Luis: “Cabalgata punitiva”, in Editorial agosto 08.08.2023 Instituto de Ciencias Penales). Of course, in a more modern and underhanded form, although, as always, appealing to the overcoming of the pillars of good, old and decent liberal criminal law (see Künsemüller, Carlos: “Supresión de circunstancias atenuantes”, in Instituto Ciencias Penales 07.09.2023).
In this new version, authoritarianism has manifested itself through special laws -an open decodification-, which, not for being so, has left an enormous mark on the old liberal edifice of codified Criminal Law, being enough in some cases -as is the case of the Law on Economic Crimes- only one or two brief articles or even a subsection, to undermine the guaranteeing spirit of an entire disciplinary area by means of: special systems for determining penalties; of criminal legal consequences without prior conviction; introduction of unitary concepts of perpetrator and of a general distancing from the doctrine of the legal good, an indispensable piece of liberal Criminal Law, to empty its content and replace it in a structural notion of crime as “violation of duty”.
Today, as always happens with this authoritarian tendency, the real agenda behind this new special criminal legislation is to increase the political power of the criminal prosecution agencies. This, in such a way that it is not limited to individual freedom and other guarantees of the subject, to undermine the fundamental precept of legality, through the decoding of those sectors on duty, which are of a particular sensitivity. This, so as to repress everything related to that area, hoping that nothing escapes through exuberant catalogs of crimes in their categories.
It is clear that the legislator has taken a position in the struggle between guarantorism versus criminal authoritarianism. So, the question that comes to mind is: Are the immovable precepts of a model based on a guarantee-based criminal law definitely in question with the new special criminal legislation?
In our opinion, the answer lies on the side of the position adopted by the participants in the penal system of normative interpretation and administration of justice. Among the former, the professors of Criminal Law will play an essential role, because, as with politicians, they are not neutral people – in our area no one is -, none of them act only technically and even scientific decisions have, in most cases, political consequences. Even more so when we live in an era in which the total change of the Penal Code is imminent. The political-criminal struggle between the two sides will undoubtedly be reflected in the discussion of this new body of law. But, for today, the interpretation of the norms according to the cardinal principles of Criminal Law -with the technical skill that characterizes the fine jurist-, can make a great difference.
