Understanding Punishability and Criminal Liability

Punishability: Unit 21

What characterizes an unlawful offense is the assignment of a penalty. This involves the possibility of applying sanctions to acts that are typically unlawful and guilty.

The Nature of Criminality

a) Penalty as an Element or Consequence
The prolonged debate over whether criminality is an element belonging to the offense or merely a consequence of it is dogmatically useless, yet it remains a subject of concern.

Zaffaroni uses precise terminology to define the nature of criminality, arguing that the term has two senses: the possibility of capital punishment and the deserving of punishment. He notes that while any offense implies that possibility, not all crimes receive the punishment they deserve.

Punishability as a Specific Difference

b) Defining the Crime
An illegal act lacking the possibility of imposing an effective penalty cannot be considered a crime within the relevant dogmatic implications. It remains a wrong and guilty act that fills the forms of a type—figuratively a crime, but not legally (Nuñez).

Conditions of Penalty

Penalty conditions are circumstances required by law for the imposition of a sentence, even when the action matches the prohibited conduct and the perpetrator acted culpably. These may depend on the activity of a third party who did not participate in the event.

Objective conditions of penalty are external world events produced outside the causal process caused by the perpetrator. These include:

• Extrahuman factors.
• Activity of a third party.
• Developments expected by law to justify the application of a penalty (Creus).

Excuses for Acquittal

Excuses for acquittal are impediments to criminality in which the state effectively "waives" its jus puniendi (right to punish) for political considerations or to meet prevalent goals. Examples include:

• Law enforcement family considerations.
• Repair of the offense.

These circumstances, while not directly related to the conduct described in the type, exclude the penalty. They may refer to the personal qualities of the author, activities outside their own conduct, or the actions of a third party regarding the situation in which the act is committed.