La legislación penal en colombia y la proporcionalidad de las penas

Abstract

In the last twenty years, Colombian criminal law has had the characteristic of indiscriminately increasing penalties, with an increase in the ius puniendi of the State, which may be due to the consideration that punishment is better, for individuals to dissuade themselves of committing crimes, in addition to seeking to repair the damage produced. That is, this increase has not been made in a balanced and rational way. It is a thoughtless increase that has arisen almost every year, away from the humanistic concept of criminal law, which sought to prevent crime and ensure the fundamental rights of who committed it. The elevation of penalties, which sought to deter crime, has not fulfilled its purpose because crime rates have been triggered and has generated a great prison overcrowding, promoting the violation of human rights and human dignity of the inmates, while congestion in the courts. For these reasons, the Constitutional Court ruled in T-388 of 2013, declaring the existence of a State of Unconstitutional Things (ECI) "in prisons" and in the "Penitentiary and Prison System", as there were flaws of structural nature that required the harmonious collaboration of State entities, to achieve their improvement. Then the T-762 of 2015, declared again the unconstitutional state of affairs for the crisis arising from prison overcrowding, from which the Ministry of Justice and Law, through the Directorate of Criminal and Penitentiary Policy -DPCP-, He made a deep and meticulous analysis of the theoretical and doctrinal foundations of punishment, such as the reforms that have been the subject of the Penal Code since 2000, seeking to provide a reflection on this illogical propensity that has clearly been disastrous for the protection of the fundamental rights of the people that today are immersed in the criminal policy of the Colombian State.