Revista Digital de Ciencias Penales de Costa Rica

DIMINISHED IMPUTABILITY: A CONTRADICTION IN COSTA RICAN CRIMINAL LAW?

2024-10-31T16:53:33+00:00

In a democratic and legal State like ours, the imposition of a sentence requires a judicial process with all the constitutional guarantees, especially for the subject accused of committing a crime. Using the instrument of the Theory of Crime, it is analyzed if the conduct has been described as a crime in criminal regulations, and if it violates the legal system. But the most relevant for the purposes of this article is the analysis of guilt, since it must be determined if the person had the capacity to understand the illegality of the action he was carrying out and if he could behave according to that knowledge, that is, if the person may be imputable. But there are particular conditions that may be presented by those who carry out an illegal action, which exempt them from that responsibility by not being fully aware of the breach of the law that they are carrying out, whether due to mental illness, or serious disturbance of conscience. Those who carry out the action under this condition are called non-imputable, and according to our criminal law, they do not deserve to receive a penalty, but rather a security measure that allows them to receive the medical treatment they need, and provide them with a safe place to the extent of their dangerousness. There is a third possible state that the doctrine has called diminished imputability or semi-imputability, and in this category are those who act with a reduced capacity, for the same reasons as the unimputable person, but without completely losing their consciousness or will. It is in these cases where our legal system is contradictory, since it establishes the obligation to impose a security measure, but recognizes a situation of diminished accountability where it only mitigates the penalty, as is the case of acting under a state of violent emotion. The question arises: should our Penal Code be reformed so that anyone who acts under reduced imputability receives a penalty proportional to the level of reproach that their specific case supports, and if applicable, additionally receives the medical or therapeutic treatment that they require? Or should the security measure be maintained for all these cases as established in the current standard?

THE CRIME OF GENOCIDE: THEORETICAL AND NORMATIVE DEVELOPMENT IN NATIONAL AND INTERNATIONAL CRIMINAL LAW. THE CASE OF SREBRENICA

2024-10-31T09:24:28+00:00

This article aims to examine the crime of genocide, starting with a brief review on the historical and dogmatic background, the forms of crime and the scope in which the norm seeks to offer certain level of protection. Afterwards, the article analyzes the criminal Code regulation about genocide, comparing it with International Law. Evidently, the national regulation is deficient, incoherent with the rest of the criminal system regarding the severity of the punishment, and inapplicable, especially considering legality and the prohibition of analogical interpretation of the law. Furthermore, the norm faces problems concerning superior responsibility and fault-based liability. When reviewing the International Criminal Tribunal for the former Yugoslavia legal precedents, regarding the Srebrenica genocide, the investigation concludes that the doctrine developed by the Court cannot solve the flaws of the national regulation on genocide. It is true, however, that certain parts of it can be applied with no major issue, such as the Joint Criminal Enterprise doctrine. Nevertheless, only a proper legal reform can solve the issues presented in this article. Even when facing the most gruesome crimes against humanity, the strict observance of the general principles of Criminal Law cannot be overlooked, especially considering that International Law itself has already drawn clear lines on how to prosecute genocide.

THE TREATMENT OF ERROR IN CRIMES OF OMISSION

2024-10-31T16:59:40+00:00

The article addresses the treatment of error in crimes of omission, from the perspective of a performative action, in order to take into account the empirical and normative relationships that support the criminal types. Unlike commission crimes, which are usually seen from the angle of a relationship between means and end, omissive crimes, which previously link the conduct to a duty to act, but which must be configured on a causal relationship, by imposition of the Criminal Code itself, imply another structure for errors of type and prohibition under the assumption of an explanation of causal dogmatics. In view of this, it can be said that this error is not simply an error of type or prohibition, but an error of wrongfulness.

THE "FETUS" IS A CHILD! ANALYSIS OF THE PASSIVE SUBJECT OF THE CRIME OF ABORTION.

2024-10-31T09:49:25+00:00

Starting from the legal concept of "person" and "child" introduced by international human rights standards, it is shown that the "fetus" is a person and a child.

BIOBANKS, GENETIC DATA PROTECTION AND CRIMINAL ASPECTS IN COSTA RICA

2024-10-31T17:16:17+00:00

Biobanks are entities that store biological resources for research purposes, including human samples. As a result of an executive order enabling their operation, there is a need to review specific legal limitations for biobanks operations in Costa Rica, with a focus on Data Protection and Informational Self-Determination Rights in accordance with the unique characteristics of the human genome, which require special protection to prevent abuse and discrimination.

DEATH WITH DIGNITY IN THE COSTA RICAN RULE OF LAW

2024-10-31T09:36:15+00:00

This research article addresses the concept of dignified death in Costa Rican law, through jurisprudential votes that have established dignified death as a corollary of human dignity, opening the way to a brief discussion through comparative law of our current interpretation. It is consistent with the principle of dignity. The foregoing is based on the premise that in a Social State of Law, access to health must be provided respecting the self-determination of its administrators and life in an integral way, each person being able to decide not only about their life project, but also about how to deal with his death, without exceeding the will of a terminal patient.

INFORMED CONSENT AS A GUARANTOR AND PROTECTOR OF THE PATIENT'S UNBREAKABLE AUTONOMY

2024-10-31T09:42:50+00:00

: Informed consent is a fundamental element in the doctor-patient relationship, since it guarantees respect for the autonomy and rights of the patient. In Costa Rica, this ethical and legal principle has been recognized and strengthened through regulations and jurisprudence that promote its application in all areas of medical care. This article examines in detail the concept of informed consent, its importance in Costa Rican medical practice, its component elements, and the challenges that still persist in its effective implementation. Informed consent is a fundamental element in the doctor-patient relationship, since it guarantees respect for the autonomy and rights of the patient. In Costa Rica, this ethical and legal principle has been recognized and strengthened through regulations and jurisprudence that promote its application in all areas of medical care. This article examines in detail the concept of informed consent, its importance in Costa Rican medical practice, the elements that compose it, and the challenges that still persist in its effective implementation, especially in light of the pandemic that has recently hit the world.

EXCUSE OF ACQUITTAL FOR ACTIVE BRIBERY IN PERU: A REGULATORY STRATEGY

2024-10-31T17:07:07+00:00

The purpose of this article is to analyze the acquittal excuse as a normative regulatory strategy that prioritizes the criminal prosecution of officials over individuals in the crime of bribery; Therefore, the study adopts a qualitative methodological approach, of a descriptive-explanatory type, with a documentary design, allowing for the systematic analysis of the bibliography linked to the research topic. In Peru, corruption is the main criminal problem in the country, since there is regulatory inefficiency and absence of strategic regulation to avoid discouraging individuals from reporting cases of corruption. Added to this panorama is the disadvantage of the clandestine nature of the criminal offense. called bribery, which does not make it possible to know real figures of its attendance because the third party outside the public service prefers to keep its actions hidden for fear of facing criminal justice, also hiding the illicit consummated by the official who accepts the bribe.

PRESENTATION OF THE REVISTA DIGITAL DE CIENCIAS PENALES DE COSTA RICA. NUMBER 4 (35) (16) (2024)

2024-11-04T12:36:50+00:00