Especialización Derecho Penal y Procesal Penal

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

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Mostrando 1 - 20 de 82

El Testimonio Adjunto y sus Implicaciones en el Principio de Igualdad de Armas en el Sistema Penal Colombiano
(Universidad Santo Tomás, 2026-07-22) Rativa Santafé, William Fernando; Sáenz Rodríguez, Deiby Alberto; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001377495; https://scholar.google.com/citations?user=Nm2ZAZcAAAAJ&hl=es; https://orcid.org/0000-0003-2241-9155
The evidentiary regime constitutes a cornerstone of criminal proceedings, as it is through evidence that the facts underlying the parties´ procedural claims are ultimately established. Within this framework, testimonial evidence plays a central role as a means of conviction, given that it derives from the account of individuals who, through sensory perception, acquire information relevant to the determination of disputed facts in criminal cases. This article examines the role of testimonial evidence within the Colombian criminal justice system. It first identifies the principles governing evidentiary activity, followed by an analysis of the practice of the testimonial evidence from the initial stages of the criminal process through its admission and development at trial. Particular attention is given to a conceptual approach to testimonial evidence and to the jurisprudential requirements established by the Honorable Supreme Court of Justice for its request, production, and contradiction. The study further explores the purpose and scope of testimonial evidence, as well as the procedural consequences arising from a witness´s reluctance or change of testimony during trial hearings. Finally, it addresses the challenges associated with contesting testimonial evidence and examines its potential impact on the principle of equality of arms, a defining feature of the adversarial system underlying Colombian criminal procedure.
Trabajo, enseñanza y estudio como herramientas de resocialización en el INPEC EPMSC Duitama (Boyacá)
(Universidad Santo Tomás, 2026-06-03) Rincón Melo, Erika Vanessa; López Zamora, Sergio Andrés; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0001511088; https://scholar.google.com/citations?hl=es&user=fKBJ70QAAAAJ; https://orcid.org/0000-0003-1350-6310
This study examines the impact of limited program capacity on resocialization initiatives in work, education, and study (WES) available to inmates (persons deprived of liberty, PDL) at the EPMSC Duitama (Medium-Security Prison and Penitentiary Establishment). Drawing upon an analysis of constitutional provisions, judicial precedents, and the statutory development of the Colombian penitentiary system, resocialization is addressed in its dual character as both a constitutional principle and the primary purpose of criminal punishment, with particular reference to the Political Constitution of 1991 and Law 65 of 1993. The research adopts a legal-empirical methodology, enabling a systematic comparison between the applicable normative framework and the institutional realities of the establishment. In this context, it evaluates resocialization programs, the administrative procedures governing sentence remission, and the extent of effective participation of persons deprived of liberty in such activities. The findings indicate that, notwithstanding the formal recognition of resocialization as the central objective of penal sanctions, its implementation is hindered by significant structural constraints, including overcrowding, insufficient staffing, and limited program availability. These factors restrict access to resocialization initiatives and undermine their effectiveness.
Efectos Jurídico - Penales de la Muerte Presunta en el Proceso Penal Colombiano
(Universidad Santo Tomás, 2026-03-10) Estupiñán Vargas, José Arturo; Ruiz Hernández, Andrés Fernando; Universidad Santo Tomás; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0000884618
The purpose of this research article is to identify the legal - criminal effects derived from the declaration of presumed death in relation to the Colombian criminal process, a situation that allows us to refer to articles 82 and 88 of the Penal Code (Law 599 of 2000) and to articles 38.8, 77, 78 and 332.1 of the Code of Criminal Procedure (Law 906 of 2004), the foregoing, in order to apply the figure called "death" as a cause of extinction of the criminal action, and in turn, as well as a cause of extinction of the criminal sanction, since depending on the moment in which the respective civil death registry is attached as proof of the death of a person, the judiciary is inexorably forced to issue a decision with full effects of res judicata in the case of "preclusion", or also, to cease the sanctioning effects of the conviction as a consequence of the judicial declaration of "extinction of the criminal sanction”.
Las Estipulaciones Probatorias como una Herramienta de Economía Procesal: un análisis del Numeral Cuarto del Artículo 356 del Código de Procedimiento Penal
(Universidad Santo Tomás) cala gutierrez, Nelson Enmanuelle; Sáenz Rodríguez, Deivy Alberto
This review article is focus in the role of evidentiary stipulations as a procedural tool within the adversarial criminal justice system. The methodology used was deductive with a qualitative approach that explores the origin in Law 906 of 2004. The findings identified its doctrinal and jurisprudential development, as the practical application in the criminal process. Its benefits in terms of procedural economy, concentration of the oral trial, and risks when applied without proper judicial control were also discussed. Specially with regard to the legality of evidence and the guarantee of fundamental rights. In conclusion, a more active role for the trial judge in the validation of evidentiary agreements is proposed, in order to balance the effectiveness of the process and the protection of constitutional guarantees.
UTILIDAD PÚBLICA EN EL CONTEXTO PROBATORIO Y LA DIALOGICA DE LA MARGINALIDAD EN LAS MEDIDAS SUSTITUTIVAS PARA LAS MUJERES CABEZA DE FAMILIA
(Universidad Santo Tomás, 0021-06-25) Leidy Yojana Garcia Buitrago, Leidy Yojana Garcia Buitrago; SAENZ RODRÍGUEZ, DEIBY ALBERTO; Universidad Santo Tomás
This article examines the innovative Law of Public Utility as an alternative measure to prison sentences and the conditions required for its application. Among the requirements established by the law, it is emphasized that the commission of the crime must be associated with conditions of marginalization affecting the livelihood of female heads of households who are perpetrators or participants in the offenses specified by the legislation. Therefore, this paper will explore alternative measures to imprisonment and the criteria used to determine conditions of marginality when analyzing the possibility of granting public utility status
EFICACIA EN LA APLICACIÓN DEL ARTÍCULO 376 C.P, EN RELACIÓN CON EL TRÁFICO LOCAL DE ESTUPEFACIENTES EN LA CIUDAD DE TUNJA PARA EL PERIODO 2020 A MARZO DEL 2025
(Universidad Santo Tomás, 2025-12-05) PABON CACHOPE, HECTOR ALIRIO; RUIZ HERNANDEZ, ANDRES FERNANDO
This investigative analysis focuses on determining the effectiveness of applying Article 376 of the Colombian Penal Code in combating local drug trafficking in the city of Tunja between 2020 and March 2025. In accordance with the stated objectives and documented findings, the study reveals that, although 769 arrests have resulted in 317 convictions, the implemented criminal policy presents a paradoxical effectiveness: while the judicial figures suggest a state response, the phenomenon of local trafficking persists and even worsens, indicating that the adopted strategy does not comprehensively or structurally address the criminal networks involved in the commercialization of controlled substances. According to the data provided, most arrests involve consumers and micro-traffickers located at the lower levels of the criminal chain (predominantly young people around 20 years old, mostly apprehended in public spaces), while the large structures that cultivate, process, and transport illicit substances from producing regions remain virtually intact. Furthermore, the investigation reveals that recent Supreme Court jurisprudence has emphasized the need to differentiate between personal consumption and trafficking by demonstrating intent to sell, a circumstance that is not always adequately proven in initial proceedings, leading to prosecutorial dismissals and acquittals that demonstrate institutional strain without a deterrent effect. Consequently, the study concludes that a comprehensive reformulation of local criminal policy is required, one that includes preventive, social, and rights-based dimensions, coordinating inter-institutional efforts toward dismantling larger structures, ensuring the constitutional protection of consumers, and optimizing public resources to achieve truly effective citizen security objectives. Keywords: Criminal, resources, trafficking, local, narcotics
EL USO LEGÍTIMO Y EXCESIVO DE LA FUERZA POLICIAL EN LA LEGÍTIMA DEFENSA COMO CAUSAL DE AUSENCIA DE RESPONSABILIDAD
(Universidad Santo Tomás, 2025-08-29) Malaver Guiza, Carlos Augusto; Universidad Santo Tomas; https://scienti.minciencias.gov.co/cvlac/visualizador/generarCurriculoCv.do?cod_rh=0002387437; https://scholar.google.es/citations?hl=es&user=xmX9UBsAAAAJ; https://orcid.org/0009-0008-8993-9765
This article aims to elucidate the configuration of self-defense as a ground for the absence of criminal liability, with a particular focus on the specific situations faced by members of the National Police of Colombia in the performance of their duties. It further examines instances where the requirements for self-defense are not met, resulting in the potential attribution of other criminal offenses. The purpose is to provide a valuable resource for public security officials, who serve as guarantors of safety and public order in the country. Colombian legal framework establishes a series of guarantees designed to protect police officers. Accordingly, the provisions of the Constitution, the Military and Police Criminal Code, and relevant jurisprudential developments collectively guide the legitimacy of police actions under the principle of legality. Police officers play a crucial role in Colombian society by ensuring the security and tranquility of the population. Their work entails significant responbility, obligating the State to safeguard both their rights and their duties towards citizens. Members of the National Police must possess the necessary legal certainty to exercise their authority and implement coercive measures. At the same time, they must have a clear understanding of the boundaries of their authority to avoid overstepping their functions, in accordance with Article 6 of the Political Constitution of Colombia.
IMPUTACIÓN OBJETIVA EN CASOS DE COMISIÓN POR OMISIÓN
(Universidad Santo Tomás, 2025-04-21) Abella Valderrama, Jhon Charles; López Zamora, Sergio; Universidad Santo Tomas
This document will present a clear notion of the figure of commission by omission in the Colombian criminal law, breaking down the different elements that constitute it, analyzing the content of these, in order to be able to reach sufficient knowledge that provides an appropriate criterion, which allows identifying scenarios in which this type of conduct materializes. The position of guarantor will be observed, from the school as well as from the different judicial decisions, which have established a clear path, which can be contrasted with the criminal legislation applied to the subject under study, the framework of requirements for the concretion of said quality of subject can be established, analyzing the duties and commitments that are found for such, in the Magna Carta, and the law prevailing in the Colombian territory, at the time of failing to comply with these legal requirements, a consequence would be generated that goes against the legally established regulations, in this scenario, the person will be considered compromised as the author or co-author of the typical conduct that results, given his non-compliance with the guarantor. The requirements that make it possible to charge a person with responsibility for crimes of commission by omission will be investigated; based on the requirement to distinguish between the position of guarantor and the precise requirements of the organized affiliation with the commission; from which the crucial ones arise, the duty to act as a shield against dangers, and the judgments of objective imputation of the result. Finally, the criteria for the normative applicability of objective imputation in cases of commission by omission in Colombian criminal law will be verified.
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
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.
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.
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.
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.
FALTAS A LA VIDA E INTEGRIDAD PERSONAL EN EL FUTBOL: ANALISIS DE LA RESPONSABILIDAD PENAL DE LOS JUGADORES DE FUTBOL PROFESIONAL.
(Universidad Santo Tomás, 2023-11-29) AVILA BECERRA, DANIEL EDUARDO; SAENZ, DEIBY ALBERTO
Con el paso de los años se ha naturalizado las faltas fuertes en el fútbol profesional, ocasionando diferentes tipos de lesiones al jugador afectado, en el peor de los casos el jugador no puede volver a jugar fútbol, lo que se busca en esta investigación es dar a conocer que si es posible iniciar una investigación de tipo penal que el jugador de fútbol que cause una falta deportiva la cual exceda los límites permitidos en el código disciplinario del jugador de fútbol profesional
Pornovenganza ¿una conducta a tipificar en colombia?
(Universidad Santo Tomás, 2024-04-23) Rodriguez, Camila; Escandon, Simón; Universidad Santo Tomas
The present arises from the problematic question of establishing whether it is feasible to incorporate a new conduct punishable by the name of revenge porn under the current Colombian criminal context. This questioning is relevant since the occurrence of these actions has increased significantly, and in turn, there is some attention in the classification of the criminal types enshrined in Law 599 of 2000, which does not have sufficient scope to penalize said conduct.
El marginamiento social, económico y cultural en la ley 1098 de 2006
(Universidad Santo Tomás, 2024-04-22) Roa Romero, Diana Katherin; Bayona Hernandez, Luis Antonio
This investigation is based on the interest in criminal matters of minors, regarding the principle of opportunity that is granted to them, according to what is stipulated in article 175 numeral 1 of law 1098 of 2006. This article of said law mentions that the Attorney General of The Nation may waive criminal prosecution, in cases in which adolescents, in any condition, have been part of armed groups outside the law, or have obtained directly or indirectly in hostilities or in armed actions or in crimes committed by illegal armed groups in four situations. In number 2 of this article, he gives one of the 4 cases and this mentions that the principle of opportunity will be granted when it is established that the minor carried out his acts when he was in a context of social, economic and cultural marginalization that did not allow him to have other alternatives for the development of his personality. The object of study of this investigation is to carry out an analysis and verify if said numeral complies with the purposes of criminal law and punishment.

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