Refereed article written by Eduardo Mora Rodríguez
Since civilizations began to be formed, the application of justice has been a mechanism of social control and from that first moment until today the penal systems used have been transformed. Justice must respect human dignitythe common good and the preservation of the Law. Under these fundamental principles to operate, justice refers to the equitable distribution of values, costs and benefits of human actions among all members of a society. In the penal system, this concept acquires its full dimension, since it seeks to assign to each person what corresponds to him or her depending on his or her actions.
The administration of justice implies assigning how to pay for each act committedThis is not usually a simple task. It requires study and adjustment to the diversity of factors that come into play in all human activity, in order to also take into account the meaning of the damage caused materially or to other beings. Faced with the application of justice, those responsible could enter into the dilemma of considering the written legal text treating everyone equally, or if on the contrary adjust the form to its due proportion in terms of damages.
In this sense, it is necessary to evaluate the principle of proportionality of penalties.The purpose of this study is to detect whether the penalties are excessive or not according to the crime committed, through the study of proportionality in the application of penalties, the examination of the objective and subjective criteria that prevail in criminal dosimetry. Criminal dosimetry defines the application of the principle of proportionality of the penalty both by the legislator when imposing a sanction, and by judges and courts when deciding on a particular case.
The application of the principle of proportionality of penalties in the Venezuelan penal system was the subject of a study by attorney Eduardo Mora Rodríguez, in his graduate work at the National School of Prosecutors of the Public Prosecutor's Office. The intention of the study was to determine compliance with the principle of proportionality of penalties in the country, taking into account whether the punishments applied correspond to what is established according to the data on the legal good.
The long road of grief
In the beginning the methods of punishment for any infraction could be considered barbaric and disproportionate. At the beginning of the settlement of civilizations, crimes and misdemeanors were qualified as offenses against the Gods and, therefore, were punished in stronger ways, fearing to awaken the wrath of the Divinity. From this consideration it can be intuited that the punishment has an origin of expiatory character.
The passage of time and the advent of modernity greatly transformed the penal system.To the point that today it is possible to discuss the proportionality of the penalty, avoiding that a person receives a punishment greater than the damage committed. The practice of the Law of Tailon was the oldest and closest notion to what is known today as penal dosimetry, since it proposed an equitable system of justice in which the penalties imposed were identical or similar to the harm caused, which was projected and reduced in great number the application of huge punishments.
From this practice, modern law has recovered the notion of determining the magnitude of the damage caused to the legal asset.The principle of proportionality of punishment is the product of a historical evolution created with the intention of preventing excesses and abuses by the criminal authority. The principle of proportionality of punishment is the product of a historical evolution created with the intention of preventing excesses and basing all decisions on equanimity and rationality. One of the laws governing this principle establishes that measures restricting rights must be provided for by law and their execution must respond only to a legitimate purpose in a democratic society.
It should be noted that the principle of proportionality operates at the time of creation of the legal instrument. Similarly, the relevance of this principle is greater in the field of security measures than in sentencing itself, and implies that the foreseeing and imposition of a sentence is made according to the criminal dangerousness of the subject.
Venezuela case, penal system
The democratic legal model established in Venezuela is based on proportionality and moderation The calculation of the penalties taking into account the degree of affectation of the legal right for their imposition. In this sense, the computation of the penalty is made according to objective and subjective criteria by means of which it is possible to weigh and evaluate the illicit quality of all the normative limits of freedoms, as well as the application of legality that restrict their exercise. The main purpose of sentencing is to avoid major crimes.
In his work, the professional Eduardo Mora Rodríguez, emphasizes that in order to avoid excesses, the principle of proportionality in Venezuela is based on three rules: adequacy (referring to the fact that any limitation of a right must be constitutionally justified), necessity (in order to qualify as unjust any unnecessary punishment) and proportionality in the strict sense (any punishment must be based on the protection of a legal right).
It is essential to be aware that no person can be punished for acts or omissions that are not previously foreseen as crimes in the corresponding legal instruments. The principle of proportionality of punishment, in addition to channeling a punishment for the criminal action without affecting more than what is legally considered, is a form of crime prevention by offering the accused the opportunity to submit to the evaluation of his punishment in the right measure, that is, without generating a greater damage than that caused by him. In this way, the application of the principle fulfills a resocializing function.
The sentencing analysis depends on objective and subjective variables assessed by the judge or courts.. Among the objective aspects can be taken into account the actual injury caused to the legal property, the degree of danger to which it was subjected, the density of the damage actually caused, the circumstances involved in the action; while among the subjective aspects can be counted the quality of the determining motives, the unethical conduct of the action, the assessment of the criminal conduct or not of the subject, as well as other personal conditions of the victim or the victimizer that may be related to the case.
According to the study, criminal dosimetry in Venezuela has a binding jurisprudential support in the Constitutional Chamber's ruling, Judgment No. 1859 of December 18, 2014, with the report of Judge Juan José Mendoza Jover, which establishes the possibility of granting alternative formulas in the execution of the sentence to those accused of drug trafficking offenses of a minor nature. The thesis of Eduardo Mora Rodriguez argues that the proportionality of the penalty in Venezuela has an axiological dimension (related to the theory of values) based on the values of the model of the Venezuelan penal system where the penalty must be proportional to the damage caused, which does not necessarily represent impunity. Only under these precepts is it possible to prevent the State from exceeding its powers and to achieve a fairer judicial system that guarantees human rights.
It is important to emphasize that under no circumstances does the proportionality of the penalty imply a waiver of liability. nor to sentencing for reasons of prevention or to promote resocialization. However, it tries to focus on the timely and real valuation of the harm committed. According to the work done by Eduardo Mora Rodríguez, the principle of proportionality in the application of penalties in the Venezuelan Penal System is aware of the imposition of punishment in relation to the intensity with which the legal right was violated or endangered.
There are a series of criteria for evaluating and assessing the evidence to determine the required sentence. In Venezuela, the following aspects are usually taken into account:
- Damage densityThe magnitude of the tort is assessed in proportion to the damage caused.
- CircumstancesIt refers to the actual execution of the punishable act.
- Commission modalitiesIt is directly related to the circumstances of place, time, manner and occasion of the crime.
- Degree of overkillIt refers to the degree of repeated, disproportionate and exaggerated aggressiveness of the criminal actions. It is valued as an aggravating factor in the penalty.
- Degree of infringementIt is related to the degree of infringement of the law in the criminal action.
- Further situation of the victim or the victim's familyIt refers to the conditions or traumas caused by the criminal situation in the victim and his or her family members.
- Quality of motifsIt refers to the motives that led the perpetrator to commit the crime.
- Criminal inclinationCriminal Record: Refers to the criminal record of the person committing the crime.
- Author's personal conditionsSocial, economic, physical, health and other factors that may be taken into account when imposing a sentence.
The main effect achieved by the proportionality of the penalty as a tool in the Venezuelan Penal System is the determination of limits to the punitive action of the State by graduating the penalties in direct proportion to the de facto contribution to the punishable act. In this sense, the Judiciary must make the necessary interpretations to fairly assess the evidence.