Especialización Derecho Penal y Procesal Penal

URI permanente para esta colecciónhttp://hdl.handle.net/11634/139

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Mostrando 1 - 20 de 98

Eficiencia Del Delito De Usura En Colombia- La Figura De Los Gota A Gota
(Universidad Santo Tomás, 2025-02-26) Rodríguez Salamanca, Hugo Jose; Numpaque Holguín, Jean Daisy; Riveros Cruz, Julian Leonardo; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000141243; https://scholar.google.com/citations?hl=es&authuser=1&user=_zUBfAcAAAAJ; https://orcid.org/0000-0002-4890-7539
In our legal system we have different figures that contemplate a risk for living in a community, one of them is the crime of usury in connection with drop-by-drop loans, in connection with the limitation in the interest rate regulated by the Financial Superintendence, those that exceed said limit constitute this punishable conduct, for which an analysis is carried out of the different regulations, the configurative elements of the conduct and in the same way the socio-economic factors that have an influence on the commission of said crime and the strategies. to increase the efficiency of said crime in Colombia Keywords: Usury, interest rate, efficiency.
Dogmática jurídica: Diferencia Entre Autor y Coautor en la normativa Penal en Colombia
(Universidad Santo Tomás, 2025-01-21) Universidad Santo Tomas
The bibliographic review article Dogmática jurídica: Diferencia entre autor y coautor en la normativa penal en Colombia examines how the distinction between these roles impacts equity and justice in determining criminal liability. Through a comprehensive literature review, the concepts of authorship and co-authorship, as defined in the Colombian Penal Code, and their jurisprudential interpretation are analyzed. The research addresses the question: How do these categories influence the application of justice principles?, The study finds that the legal framework distinguishes the author, who directly commits the criminal act, from the co-author, who plays an essential role in executing the crime. However, this distinction can result in unequal sentencing, as individual contributions to the offense are not always assessed fairly. By analyzing relevant cases and legal doctrines, the article demonstrates that rigid judicial interpretations can undermine principles such as proportionality and equality before the law, The study emphasizes the need for a flexible interpretative approach to accurately assess each individual's level of participation in the crime. This would ensure a more equitable application of criminal justice, reducing disparities in the assignment of responsibility.
Análisis Comparativo de los Requisitos Legales para la Legítima Defensa y Defensa Putativa en Colombia.
(Universidad Santo Tomás, 2025-01-21) Achagua, Luz Dersy; Saenz Rodriguez, Deiby Alberto; Universidad Santo Tomas
The analysis of self-defense and putative self-defense in the Colombian context underlines their importance as legal mechanisms to protect essential legal assets against illegitimate or perceived aggression. The research delves into the normative foundations of article 32 of the Colombian Penal Code and into the doctrinal interpretation, highlighting the criteria of proportionality, necessity and absence of provocation. The challenges inherent to the practical application of these figures are highlighted, particularly in the evaluation of the error in putative self-defense and its impact on the judicial system. Comparatively, the similarities and differences with other jurisdictions, such as Spain, Mexico and the United States, are analyzed, revealing diverse approaches to proportionality and the use of force. The ethical, legal and social implications are addressed around the balance between the protection of individual rights and collective security, emphasizing the need for clear normative criteria and coherent judicial decisions to guarantee fair application and avoid abuses. Finally, reforms are proposed to strengthen the Colombian regulatory framework and promote confidence in the criminal justice system.
Delito de Omision de Socorro Frente a Casos de Legitima Defensa
(Universidad Santo Tomás, 2024-01-24) Avila Becerra, Cesar David; Sáenz Rodriguez, Deiby Alberto; Universidad Santo Tomas
This research article is based on the studies previously presented regarding self-defense and the crime of omission of assistance, analyzing the factors that compose them, as well as their legal definition and the definition accepted at the international level. Several sources are used, such as jurisprudential sources that give an example of the development of these two conceptions, as well as dogmatic sources that allow identifying the different factors and elements that compose the criminal types analyzed. A study is made of their legal evolution within the Colombian legal system, as well as the changes they have undergone together with their most essential elements and the differentiation of terms that may sound similar in legal practice
Validez Jurídica de las Declaraciones en Procesos Administrativos de Violencia Intrafamiliar y su Impacto Penal
(Universidad Santo Tomás, 2024-12-06) Castro Montañez, Lida Rocio; Saenz Rodriguez, Deiby
This article examines the legal and jurisprudential foundations that determine the validity of the statements and discharges presented by those accused in administrative proceedings of domestic violence in Colombia. Based on an approach focused on the analysis of decisions of the Constitutional Court and the Supreme Court of Justice, essential principles that should govern these procedures are identified, such as legality, respect for due process and proper management of evidence. Emphasis is placed on the importance of assessing circumstantial evidence, given that domestic violence often occurs in private spaces, where direct evidence is limited. In addition, the role of precautionary and definitive measures in the protection of victims is analyzed, while highlighting the need to guarantee the fundamental rights of the accused, such as the presumption of innocence and the right not to self-incriminate. Finally, recommendations are offered to optimize administrative and judicial processes, including the training of justice operators and the provision of adequate legal advice from the initial stages of the procedure.
La renuncia a la persecución penal: una garantía de seguridad jurídica o un mecanismo de impunidad
(Universidad Santo Tomás, 2024-12-05) Cuéllar, Gustavo Adolfo; Alarcón Boyacá, Mónica Yohana; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000085044; https://scholar.google.com/citations?view_op=list_works&hl=es&user=78Y4B8MAAAAJ; https://orcid.org/0000-0001-7748-3854
How can justice and peace coexist in a country scarred by prolonged armed conflict? This question has been central to the design of Colombia's Special Jurisdiction for Peace (JEP). In this context, the figure of waiving criminal prosecution has generated intense debate. As Nelson Mandela stated, “reconciliation is not simply forgetting; it is remembering, but choosing not to be dominated by the past”. This article will explore how Colombia, through the JEP, seeks to reconcile the need for justice with the construction of a future based on reconciliation, analyzing in depth the role of waiving criminal prosecution.
Prevención Especial Positiva en Colombia: Análisis Crítico de su Concreción Jurídica en el Ámbito Penitenciario
(Universidad Santo Tomás, 2024-10-31) Ramirez Florez, Diego Alexander; Garavito Rincon, Daniel Felipe
This research article analyzes the legal implementation of the principle of positive special prevention in the regulation of penitentiary treatment in Colombia, evaluating both its main characteristics and its shortcomings. The research shows that, although Colombian regulations adequately establish in theory the correlation between positive special prevention and penitentiary treatment, there are nevertheless significant deficiencies. The current regulations and their implementation are examined, highlighting the normative discrepancy. In addition, it is identified that current policies tend to focus more on control and punishment than on the effective resocialization of inmates, which contravenes the objectives of positive special prevention. The conclusions of this study underscore the need for a review and strengthening of the regulatory framework, as well as greater training and sensitization of the actors involved in the prison system to ensure that theoretical principles are translated into practices that truly promote the social reintegration of convicts.
VALIDEZ DE LA PRUEBA TESTIMONIAL DE PERSONAS CON SINDROME DE DOWN EN EL SISTEMA PENAL COLOMBIANO
(Universidad Santo Tomás, 2024-10-01) PUERTO HOYOS, ASTRID VIVIANA
Inimputabilidad Psicológica En El Marco De La Responsabilidad Penal Del Menor Elemento Sustancial En Sede De Culpabilidad En El Ordenamiento Jurídico Colombiano
(Universidad Santo Tomás, 2024)
This research is based on the unknown as to the criminal liability of minors under fourteen (14) years of age in the Colombian penal system, taking into account the grounds of unaccountability that concern them for the category called psychological immaturity, thus, the Colombian Penal Code (CPC) (Law 599 of 2000) formulates the figure of unaccountability in its article 33, in the following terms: “Unaccountability. The person who at the time of committing the offense, lacks the capacity to understand its unlawfulness or to be determined in accordance with that understanding, whether due to psychological immaturity, mental disorder, socio-cultural diversity, or similar conditions, is unimputable”. (Colombian Penal Code, 2000) This generates the second unknown as to the term of psychological immaturity and how the Colombian Legislator delimited such category and under which precepts, he drew his research map to find a concept of no criminal liability, but on the contrary a series of sanctions and responses in favor of the minor offender; and how these psychological and normative studies frame the fourteen (14) year old minor as unimputable in terms of guilt.
La legitima defensa en Colombia, como causal de ausencia de responsabilidad penal
(Universidad Santo Tomás, 2024-09-05) Agudelo Márquez, Leidy Alejandra; Riveros Cruz, Julián Leonardo; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000141243; https://scholar.google.com/citations?hl=es&authuser=1&user=_zUBfAcAAAAJ; https://orcid.org/0000-0002-4890-7539
Understand that the law confers self-defense as an action in favor of protecting a legally protected legal asset, whether it is another's or one's own, against the risk in which it has been placed due to an imminent or current unlawful aggression by another, in Colombia through Law 599/2000 in its article 32, numeral 6. The action will be justified as long as it is done in the need to defend one's own or another's right, or in the situation of privileged self-defense where it is used to reject the stranger who with violent acts enters an occupied room or vehicle in order to defend one's own or another's right.
El paseo millonario: un análisis jurídico de la dicotomía entre el dolo y los elementos subjetivos en la tipificación penal del secuestro y el hurto calificado
(Universidad Santo Tomás, 2024-09-10) Rojas Gutiérrez, Carmen Paola; Carrillo Rusinque, Erika Daniela; Riveros Cruz, Julián Leonardo; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000141243; https://scholar.google.com/citations?hl=es&authuser=1&user=_zUBfAcAAAAJ; https://orcid.org/0000-0002-4890-7539
This research article addresses the crucial distinction between aggravated theft and kidnapping, focusing on how the duration and purpose of the victim's detention inRuence the classi1cation of the crime. The reasonableness of the detention and its purpose are central to determining whether the act constitutes a means to commit aggravated theft or an independent kidnapping, directly aIecting the nature and severity of the applicable sanctions. By delving into the variations of kidnapping, such as simple and extortive, and considering the theory of final action, the intention of the active subject and the legal goods aIected are analyzed, which can lead to a concurrence of crimes. The research highlights the lack of uniform criteria and the need for a detailed and evidence-based approach to each case, emphasizing the complexity and relevance of accurate and eIective justice administration in these crimes.
Feminicidio y justicia en Colombia: análisis de la política criminal y la protección de la mujer
(Universidad Santo Tomás, 2024-09-05) Cruz Castro, Juan David; Rodríguez Trujillo, José Antonio; Riveros Cruz, Julian Leonardo; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000141243; https://scholar.google.com/citations?hl=es&authuser=1&user=_zUBfAcAAAAJ; https://orcid.org/0000-0002-4890-7539
The present research allows a comprehensive approach to be made against the proposal of femicide as an autonomous type of punishable conduct whose initial objective corresponds to the need to provide greater protection for interests, legally protected rights and property of women given the constant cases of violence against their population. Addressing the conditions necessary for their existence, taking into consideration the intention of the perpetrator to cause harm to another person under the premise of being due to his status as a woman. Thus, it is imperative to provide a review of the background that led to its typification, the debates that arose on the occasion of the legal risks that could generate, the creation of the Ley Rosa Elvira Cely as a response to the struggle for its protection, the review of the figures issued by the Ombudsman and/or agencies dedicated to the review of crimes in Colombia and the percentage of efficiency that Femicide has when it comes to inhibit any type of aggression that results in the loss of life in the population to be safeguarded. Therefore, by looking at the femicide perspective, we try to understand that it is not just another criminal type, considering the theory of the final action of the perpetrator of the crime, considering what is the objective and intention of the active subject in question, the legally protected property that is in danger and what is understood as a woman’s status to consider its application. In this context, the present report deals with the provisions of the Criminal Code made by the legislator, updated figures and the analysis that results from them.
Stealthing: Violación silenciosa
(Universidad Santo Tomás, 2024-09-13) Castro Castaño, Maria Paula; Mendoza Zamudio, Lizeth Natalia; Riveros Cruz, Julián Leonardo; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000141243; https://scholar.google.com/citations?hl=es&authuser=1&user=_zUBfAcAAAAJ; https://orcid.org/0000-0002-4890-7539
Over the last few years, some media have been covering the “dangerous” behavior practiced mostly by the young and sexually active population, which puts its victim at physical risk of pregnancy and illness, however, in Colombia it still goes unnoticed by a large part of the population. Stealthing is the not-so-new practice, by which a person removes the condom or barrier method during sexual intercourse without the consent of their partner. A practice that can affect the physical and psychological well-being of the passive subject. Hence, since the publication of a study by the University of Columbia on Gender and Law in 2017, different media and countries have begun to regulate this behavior through two approaches, such as regulating it as an independent criminal type or elevating this behavior to that of sexual assault. Therefore, it is necessary to classify stealthing as an independent crime, given that, after analyzing the Colombian legal system, there is no criminal type in which such conduct can be sanctioned, which makes it imperative for the legislator to process a new bill, with the necessary adjustments to protect the sexual rights of people who are victims of stealthing.
Oportunidades y límites para el uso de las fuentes humanas no formales, en las Investigaciones Penales de Colombia
(Universidad Santo Tomás, 2024) AYALA MESA, LUZ ANGELA; VASQUEZ BETANCUR, SANTIAGO; Universidad Santo Tomás
The use of non-formal human sources in criminal investigations in Colombia presents important challenges and opportunities that require detailed analysis. This literature review article focuses on examining the problems associated with the reliability and validity of the information provided by these sources, as well as their impact on the judicial system. The purpose of the research is to identify the limits and potential of the use of these sources in the context of the search for justice and the protection of human rights. The study encompasses a theoretical and legal analysis of non-formal human sources, illustrated with examples of court cases and evaluations of proposed reforms. It is structured in three parts: a conceptual and regulatory review, practical examples of the use of these sources in criminal investigations, and a critical discussion about their effectiveness and risks. The conclusions highlight the need to implement strict and transparent protocols to improve the reliability of these sources and ensure a fair and equitable judicial process.
Viabilidad en la Implementación de un Sistema Penal Diferenciador para los Inimputables en Colombia
(Universidad Santo Tomás, 2024-09-05) Pardo Forero, Diana Alejandra; Guevara Tolosa, Marisol; Riveros Cruz, Julián Leonardo; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000141243; https://scholar.google.com/citations?hl=es&authuser=1&user=_zUBfAcAAAAJ; https://orcid.org/0000-0002-4890-7539
The current Colombian penal system is diversified into three procedures, which have significant differences among them; however, they each have stages that develop with certain similarities. In this context, this text considers whether it is possible to make modifications to the current procedures, and what their scope and effects would be. It primarily analyzes the need to introduce a preliminary hearing to assess the mental health (and criminal responsibility) of accused individuals, in order to avoid extending the case into a lengthy and cumbersome criminal process that requires completing all stages or hearings. Instead, it considers proceeding with the early termination of the process at the preliminary hearing, or directly moving to a combination with the abbreviated criminal process, in which both the concentrated hearing and the oral trial are completed, or preserving the nuances of the accusatory penal system and proceeding directly to the oral trial.
Estado del Arte de la Violencia Intrafamiliar en Colombia
(Universidad Santo Tomás, 2024-04-29) Botero Álvarez, Editson; Alarcón Boyacá, Mónica Yohana; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000085044; https://scholar.google.com/citations?view_op=list_works&hl=es&user=78Y4B8MAAAAJ; https://orcid.org/0000-0001-7748-3854
Domestic violence is a social phenomenon that is gradually increasing in Colombia in a way that is worrying for civil and social authorities, since, despite the fact that awareness campaigns are frequently carried out, and that promote respect for others and placing emphasis on women, violence towards them, has sadly become normalized, causing a detriment to this phenomenon. The main objective of this article is to reveal, after exhaustive academic research, the current panorama of the problem, the government response, its main triggers, and thus propose possible solutions and recommendations for the treatment of the aforementioned phenomenon; On the other hand, it is hoped that this document will enrich the literature and be a point of reference for future academic consultations.
La retractación de menores: niños, niñas y adolescente en procesos por delitos sexuales
(Universidad Santo Tomás, 2024-04-01) Moreno Murillo, Adolfo; Alarcón Boyaca, Mónica Yohana; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000085044; https://scholar.google.com/citations?view_op=list_works&hl=es&user=78Y4B8MAAAAJ; https://orcid.org/0000-0001-7748-3854
The article studies the issue of minors involved as victims in sexual crimes in Colombia. The problem from which we start is the validity of the recantation of children and adolescents, NNA, in criminal proceedings, of which the majority have been resolved by the acquittal of the accused adults. Even in the face of possible guilt, it is of utmost importance that based on previous testimonies that are later denied by the minor victims, the course of the decision can affect the fundamental rights of said minors. Childhood and adolescence, due to their young age and low level of sentimental, moral, and cognitive development, represent a manipulable social group, as well as susceptible to being sexual victims. When a legal process arises due to a complaint from third parties or from the victims themselves, one of the most used evidence is the testimony of victimized minors. But even after a conviction, minor victims choose to retract their accusations. The methodology of the article is based on secondary sources, coming from jurisprudence and academic studies and doctrine. The results arise from examples of cases of retraction of testimony by minor victims and show some positive aspects, such as the staunch defense of the rights of the minor or the minor alleged victims, the mandatory forensic investigation of the children's behavior, girls or adolescents, and even other witnesses. Also, negative aspects of minors' testimonial retraction appear when they are the result of pressure, suggestion or family interests and even the deficiency of the results of the participation of forensic experts with little knowledge of the subject.
La oposición entre el artículo 157 de la ley 1098 de 2006 y la aplicabilidad de la rebaja de pena por aceptación de cargos y el principio de oportunidad, en materia de responsabilidad penal del adolescente
(Universidad Santo Tomás, 2024-06-27)
The article addresses the contradiction between article 157 of Law 1098 of 2006 and the possibility of applying sentence reductions for accepting charges and the principle of opportunity in the system of criminal responsibility for adolescents in Colombia. The Colombian criminal system uses methods to encourage confessions and the quick resolution of cases through benefits for offenders. However, these methods are not applied in the same way in the adolescent justice system. The research analyzes the regulatory and equality implications of this situation, highlighting the need for a rehabilitative and protective approach for juvenile offenders.
Reflexiones sobre la nulidad por falta de precisión en los hechos juridicamente relevantes en el proceso penal
(Universidad Santo Tomás, 2024) Sarmiento Obando, Alejandra; Alarcón Boyacá, Monica Yohanna; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000085044; https://scholar.google.com/citations?view_op=list_works&hl=es&user=78Y4B8MAAAAJ; https://orcid.org/0000-0001-7748-3854
In this research work we seek to demonstrate the situations in which annulment occurs within the criminal process, specifically due to lack of precision in the legally relevant facts determined by the Attorney General's Office. It will be analyzed how factual indeterminacy can violate the principle of legality and the right to defense, fundamental elements in the criminal process. To do this, the characteristics surrounding this legal phenomenon will be conceptually developed from three aspects: 1) Definition of the concept of legally relevant facts; 2) Different doctrinal and jurisprudential positions on the grounds for annulment within the framework of the Colombian criminal process; and, 3) Doctrinal, legal and jurisprudential development of nullity due to lack of precision in the legally relevant facts. In addition, the relevant jurisprudence and the pronouncements of the Attorney General's Office will be examined to understand how cases of annulment due to lack of precision in the facts have been addressed. The criminal procedural legislation and the internal regulations of the Prosecutor's Office that govern the formulation of charges and the determination of legally relevant facts will be studied. Finally, the question will be raised about whether the lack of precision in the facts on the part of the Attorney General's Office constitutes a violation of the principle of legality and the right to defense, or if, on the contrary, there are mechanisms within the criminal process that allows this indeterminacy to be corrected without affecting the fundamental rights of the accused. It will seek to determine the legal consequences of the annulment and propose recommendations to improve the precision in the formulation of the facts by the Prosecutor's Office.
Dos tipos penales que conducen a la protección de un mismo bien jurídico tutelado (patrimonio económico)
(Universidad Santo Tomás, 2024-04-03) Parra Barrera, Yuly Fernanda; Saenz Rodriguez, Deiby Alberto
The issuance of Law 1273 of 2009 brought with it the construction of a new protected legal asset called “the protection of information and data”, in order to classify the conduct related to it and prevent computer crimes that had begun to take place. boom in society were subsumed into traditional crimes. However, the conduct added to the criminal law described in article 269I of the Penal Code “theft by computer and similar means” was not established autonomously, since to define its characteristics, material object, sanction and legal consequences, a textual reference is made. to the type of simple theft and its qualifying circumstances, contained in articles 239 and 240 of the criminal code. This relationship of strict dependence on the conduct of simple theft and qualified theft does not allow the main protected legal asset to be the protection of information but rather the economic assets, normative ingredients that are subsumed in article 240 Qualified Theft, in its numeral. 4, and therefore a double classification of the conduct.

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