El delito de inasistencia alimentaria: un análisis teleológico de la pena

Abstract

The investigation established the consequences of the application of the sentence of deprivation of liberty in compliance with the legal duty to attend food. For in dealing with the deprivation of liberty, there is an impediment to the effective realization of the rights of those who require food assistance, and it moves away from the purposes of the penal system. From the socio-legal approach, the deprivation of liberty of a subject who has not fulfilled his legal duty to attend food, only generates the re-victimization of the passive subject of the behavior, since his situation of lack of protection will be more burdensome, and the expectation that their right will be protected will be less and less, thus generating greater conditions of poverty and inequality. If you go before the judicial system, in order that the protected right or legal right be protected, when you detain the active subject, in a prison, the expectation of guarantees of reparation or protection of food becomes practically nil. It is there where the Judge, must play an indispensable role to reconstruct the dialogues right-society, analyzing the convenience or not of imposing a penalty of deprivation of freedom to the offender. From the criminological point of view, the application of the penalty of deprivation of liberty in the crime of food non-attendance, does not meet the purpose of the penalty of general or special prevention, since there is a considerable percentage in relation to other crimes, of the inmates in the main prison detention centers of Bogotá who have convictions for this crime, and many of them are repeat offenders. Situations that show that the rights of those who require food assistance are aggravated by the penal system, thus ignoring one of the purposes of the participation of victims in the criminal process that is comprehensive reparation. Because of the foregoing, it was determined that the application of penalties depriving of liberty and especially of prisons, generates three types of consequences: the first of these is the increase in the conditions of inequality and poverty in the country; the second is that this penalty re-victimizes the taxpayer; and the third one that its application moves away of the ends of the penal system of general and special prevention. The research proposes alternative penalties that allow the construction of the Colombian social fabric from families. It seeks to propose an alternative criminal law where the judge has an indispensable role to strengthen the dialogues between law and society. Applying restorative penalties, where the active subject and the passive subject of criminal conduct, can reach an effective solution, with intervention and constant state assistance. In this way I believe, you can protect the protected legal good of the family, oriented from the safeguarding of constitutionally recognized rights to subjects that require food assistance, due to their conditions of vulnerability. Looking for a reevaluation of the current criminal policy, and of that rigid penal system that today is denoted in constant deterioration. The reorientation of the Colombian criminal system, in dialogue with the Colombian Political Constitution and the aims of a Social State of Law, is a discussion from the criminal policy, which should be treated both from the active subject, as from the passive subject, since the incidence of deprivation of liberty in this type of punishment generates feelings of injustice and ineffectiveness of the law. Incarceration does not allow the right to be protected or guaranteed, which is the purpose for which the judicial system is sought or used in this type of case.