La punibilidad como categoría autónoma del delito en Colombia

Abstract

This study examines the advisability of recognizing punishability as an autonomous category within Colombian criminal law theory, located between culpability and the determination of the quantum of the penalty. Current judicial practice shows an almost automatic shift from a finding of responsibility to sentencing. That automatism prevents verification of whether punishment is truly necessary and has led to unnecessary sanctions and stereotyped reasoning. The central proposal is to structure a punishability review as an axiological filter that, once passed, determines the minimum sufficient intensity, consistent with proportionality, dignity, equality, and the ultima ratio character of the ius puniendi. The specific objectives are to integrate currently scattered elements, set a constitutionally required standard of reasoning, and design verifiable guidelines for judicial control. The study adopts a qualitative approach grounded indoctrine and in constitutional and criminal jurisprudence. Its main finding is a double-threshold model, implemented within an autonomous punishability stage and guided by the NUEO Test, built on the criteria of necessity, utility, equity, and opportunity. The model integrates objective conditions of punishability, grounds excluding criminal responsibility (justification and excuse), grounds for extinction of criminal action, the principle of opportunity, natural penalty, and full reparation. At this stage the decision is made on whether punishment is warranted and, if so, on the minimum sufficient intensity. Its implementation would reduce decisional dispersion, avoid superfluous sanctions, prioritize effective alternatives, and help mitigate the prison crisis, while strengthening the legitimacy of the criminal justice system.