Relationship of criminal social control with the Constitution
It is undeniable that we have faced a constitutionalization of the legal system in general, and of course, the constitutionalization of criminal law, the subject of our analysis.
It is known that the Constitution contains precepts, values, ideas, postulated regarding fundamental rights that directly or indirectly intervene significantly in criminal law, in its structure and scope.
The legislator does not have absolute freedom to establish criminal behaviors, criminal proceedings, since he must respect the constitutional rights of people. It works as a tool to limit the punitive power of the State, which must also be explicitly justified. The "ius puniendi" must guarantee the protection of rights, values enshrined in the Constitution; The human dignity and fundamental rights that are part of the backbone of the supreme law cannot be ignored under any circumstances.
The rights and guarantees are presented in the form of principles, and of course they belong to the rank of maximum force and hierarchy within the legal system. Of these principles is where the rest of the legal system must be released.
Now, we will proceed to analyze the constitutional articulate that is closely related to criminal law, in order to detach the fundamental principles.
First, we must highlight three articles of the constitution of great importance in human rights; Article 7, 72 and 322. These articles consecrate the protection of human rights, and those that are inherent to human personality. By virtue of these precepts, we understand that the entire legal system must provide their regulations in line with them, such rights cannot be ignored, nor stop applying them due to lack of regulations. It is a constitutional right that mainly protects the enjoyment of fundamental goods for human beings, in fact, a higher value is attributed to them.
Article 10 of the Supreme Law, enshrines the principle of legality, which of course governs criminal law. It follows from the idea in Latin "nullum crime sine praevia lege, nulla poen. This means that the criminal law must be prior, so that whoever acts can know in advance whether it is a lawful or not. Everything that is not regulated is free, so we say that the principle of legality works as a guarantee of freedom. In relation to freedom, article 7 of the Constitution emphasizes that no one can be deprived of his freedom, unless it is based on the general interest. And article 8, expresses that all persons are equal to the law and that only distinction can be made regarding their talents or virtues. The criminal system should never be applied based on personal reasons. If distinctions are made between people, never such differences must be founded on their race, religion, status, etc. In turn, the principle of irretroactivity follows from this principle; While a person cannot be qualified as a criminal if at the time of the commission of the act, it was not provided for a crime by criminal law. We can affirm, based on the aforementioned and adding article 12 and 18 of the Constitution that in Uruguay there is no crime, judge, or penalty, without prior law that has established it.
Another principle enshrined in the Constitution, which refers to criminal law, is the principle of personal responsibility, understanding that whenever criminal matters are referred to with respect to a person. This is what article 15 does when he speaks of "nobody" can be imprisoned but for flagrant crime or there is semiplane evidence; Article 16 when referring to the "arrested or accused"; on 27 when he mentions the "interested"; or the 26 when he alludes to the "prosecuted" and the "penalty". It always refers to the person, never to a thing or animal.
Another relevant principles is the right to due process, enshrined in articles 8, 10, 11, 13, 15, 26, 28, 72, 332 of the Constitution, addressed to the citizen who is subject to the criminal process, because they can know the elements against him and how to face them. If this right is not consecrated we would be facing a decrease in guarantees.
We must make important emphasis on the principle of proportionality. As we have said previously, there are limits to the ius puniendi exercised by state power. These limits are derived from the Constitution. The principle of proportionality refers to the criminal law of a State that has a constitution consecrated, there can be no rules that do not have foundation, nor penalties that are severe excessively. The State must take criminal law as the last ratio for the protection of fundamental rights. This principle is aimed at prohibiting excesses, if criminal law is used, you should try to generate the lowest possible damage, within the circumstances.
It is possible that, if the judge considers, based on the principle of proportionality, that the application of a penalty is not justified from a constitutional vision, he can do two things; Impose the penalty despite its deterrence with the Constitution, or may not apply the penalty, or impose it with a legal minimum, seeking to adapt as much as possible to the Constitution.
Following Roxin’s approach, the imposition of the penalty will be the framework of the Constitution as long as criminal law is imposed in such a way that constitutional legal assets are protected.
Constitutional law, in addition to the previous principles, contains mandates that are linked and are of main interest to criminal law. We will cite any of the most relevant commandments. For example, the Constitution prohibits the application of the death penalty, and provides for the deprivation of liberty as a resocializing function in its article 26. The penalty of confiscation of goods for reasons of a political nature is also prohibited (article 26 CO). The Supreme Law also provides in its article 43 that child crime is subject to a special regime. Usura and debt prison is also prohibited (article 52), and thus many other articles that affect criminal law, their structure, training and application.
By virtue of the above, we see how criminal law is especially limited by the commandments and regulations present in the Constitution. In such a way that the Constitution works as a manual for the rest of the legal system, which must necessarily respect the supreme law.
Now, we have analyzed constitutional principles and articles that govern our criminal law. Now it is necessary to focus more specifically on social control and more precisely criminal social control; define it and put it in tune with the Constitution.
As we already know, all societies are oriented in groups, which as we have said previously, we can locate two subgroups, who dominate and who are dominated. In this way a power structure is formed that controls the behavior of individuals. We cannot conceive a society devoid of social control, since it is clearly necessary for social coexistence, there are no alternatives to social control. Law is one of the most explicit ways of social control, and therefore, criminal law does not escape, in fact, criminal social control is one of the most frequent and effective ways of social control. Social control is based on the control of deviation regarding the behaviors that are expected.
The control can be informal or unofficial, as is the case of family, education, religion, etc; But it can also be formal or official, such as judicial courts, the police, etc. Social criminal control belongs to the formalized type. The first refer to non -institutionalized media that are oriented to prevent the commission of crimes. On the other hand, the second type is institutionalized, whose purpose does not differ from the first example.
Social control works in such a way that it affects the way of thinking and acting of individuals, through regulations that may be formalized in a specific structure, as in the case of criminal law, which contains criminal laws, or they can not being and transmitted through speeches, fashions, relationships, etc; as the case of the control exercised by the family.
Criminal social control is coercible and particularly violent, under its modalities of sanction and application of penalties. For that reason, we say that the criminal social control must be "last ratio", since, it would not be justifiable to apply it in the first instance knowing that there are other control mechanisms that generate less damage. The truth is that, in many cases, the criminal system must necessarily be used as a deterrent, due to the insufficiency of resources and mechanisms of the rest of controls, if you want more "peaceful". Therefore, the criminal system as a means of social control is accessory and subsidiary to the other types of social control.
Social control in general, is responsible for controlling the deviation, as Eduardo Pesce Lavaggi establishes, it is intended to discipline human behavior through the learning and internalization of guidelines. The criminal system as an institutionalized social control system is formed by four segments: legislative, police, judicial and penitentiary execution. The legislative segment performs the "primary selection", that is, taking all existing behaviors, those that will be qualified as criminal. The police segment fulfills two functions, the prevention of crimes that may occur in the future, and the repression of those who have already been committed. It is responsible for "secondary selectivity", that is, all criminal behaviors take some to be taken by the system. The judicial segment, is one that is a slave of the law, interprets it by adjusting it to the demands of today, in an impartial way. Finally, the penitentiary segment is the one who executes the penalty. Take the subject convicted as "offender".
The truth is that, in this process of criminal social control, a highly selective function is fulfilled. Previously we talk about primary and secondary selectivity. According to author Eduardo Pesce, the criminal system selects people and non -behaviors. And we may ask ourselves, what criteria are used for this selectivity? Reality indicates that selectivity lies in the most vulnerable economic and social sectors, are those that are more likely to fall into the networks of the criminal system. The criminalization process is attributed to these. There are groups that are not captured by the system, the so -called “white collar crimes”, which perhaps are the ones that generate the most damage, but are unpunished, because the criteria of submission do not cover these stronger economic and social groups. As Pesce expresses; "The fact that prisons are full of poor, does not mean that poverty is a cause of crime, but is particularly indicative of the social vulnerability of these sectors".
If we put the latter in tune with the Constitution; Can we say that in practice they are in harmony?, Is the principle of legality complies with?, And with the principle of equality? The truth is that many times in practice, the criminal system as a social control deviates from the provisions of the Constitution.
The Constitution, as we have seen before, enshrines the principle of equality in its article 8, clearly expressing that "all persons are the same before the law not recognizing another distinction between them but that of talents or virtues". In relation to this, it would not be constitutionally admissible to generate a selectivity in people for their socioeconomic status, since if so, we could not talk about equality.
For its part, the principle of legality is also affected in a certain way, to the extent that, as Cairoli expresses, “criminal law cannot be used to suppress a contest of class or groups symbols, because that is not actually protection of legal certainty ". In order for a behavior to be taken as criminal and in turn, there must be a previous norm that establishes it, regardless of the socio -economic group or of a nature similar to which the individual in question belongs.
By way of finishing the analysis, and this link between the criminal social control and the Constitution of the Republic, we understand that in regards to the criminal regulatory precepts, these are in harmony with the Constitution, since all the principles exposed are taken by criminal law and included in their precepts. The truth is that, although criminal law is in line with the Magna Cart.
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