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Modern and Adequate Criminal Regulation

#FreshStartMonday

Welcome to #FreshStartMonday!
 
“Injustice anywhere is a threat to justice everywhere”. -Martin Luther King
 

On February 16, 2022, the Congress of the Republic of Guatemala approved amendments to the Criminal Code regarding crimes against children and teenagers through technological means. This reform includes Article 190 Bis, which under penalty of imprisonment from 6 to 12 years punishes anyone who contacts a minor with the intention of sending sexual or pornographic material. Article 190 Ter was also approved, which penalizes with 6 to 12 years in prison anyone who threatens a minor with the dissemination of pornographic material. The reform entered into force on March 11, 2022. Thus, today we question the need for a new Criminal Code that meets the reality of society.

Starting from the principle that law regulates the relationship between people; modern society requires that this behavior in orderly and consistent with the national reality be regulated by new laws. The main objective of criminal law is to promote the respect of legally protected goods; therefore, it prohibits and punishes behaviors that offend or endangered such goods.  

The existing Criminal Code, Decree Number 17-73, entered into force on January 1, 1974, and is structured by the general part[1] which contains all the principles, guarantees, and other elements of general application and the special part[2] where the crimes and the protected legal goods are found. Additionally, there are other criminal laws, which contain crimes and protected legal interests that have integrated the Guatemalan legal system.

However, many of these criminal laws have facilitated legal uncertainty, causing their application to be arbitrary. This has resulted in excessive rates of violence and criminal proceedings before the courts, distrust in the various authorities of the justice sector, and corruption at all levels of the government administration.

The participation of the justice and civil society sectors has influenced the different proposals for amendments to Guatemalan Criminal Law, however, far from being a positive situation, many of the proposals and the interpretation of the legislators have obeyed interests, favoring impunity.

The proposal of a legal compendium, more than a challenge, is a necessity in response to a national reality that is deteriorating day by day. The new criminal code must be coherent with the international treaties ratified by Guatemala and the modernity of a criminal law that demands to be clear and applicable to our social, cultural, and political reality.

Returning to the basic principles of criminal law: "It is not the cruelty of the penalties one of the greatest brakes on crimes, but their infallibility, and therefore the vigilance of the Justices, as well as the inexorable severity, which to be a useful principle it must be accompanied by clear legislation and the certainty of punishment.”[3].

Proposing a new criminal code should not be to thicken the pages of a book regulating criminal conduct, but rather, it should provide certainty in its application and effective solution. It should seek a legal system based on the new trends and comparative criminal law and aim to guarantee the legal assets protected by the State at three levels: the individual, the community, and the State.

 

[1] Articles 1 to 122 Criminal Code.

[2] Articles 123 to 498 Criminal Code.

[3] Cesare Beccaria De los delitos y de las penas 1764.

Fernando Mendizábal
Mauricio Ordóñez
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