Más allá de la pena: la justicia restaurativa como presupuesto de legitimación, reivindicación y humanización del derecho penal colombiano.

Abstract

As a Social and Democratic State governed by the rule of law, Colombia is founded upon constitutional supremacy and human dignity, making criminal law particularly significant due to its profound impact on fundamental rights such as liberty. Nevertheless, the Colombian criminal justice system faces a structural crisis, manifested since the end of the 20th century, and represented in judicial congestion, the expansion of punitive responses, and the massive and systematic violation of the people deprived of liberty, circumstances that have led to the repeated declaration of an Unconstitutional State of Affairs in the penitentiary system. This context calls into question the sufficiency of a predominantly retributive rationale as the exclusive basis for legitimizing the Ius Puniendi and demands a reconsideration of the conditions governing punitive intervention in light of the principles of necessity, proportionality and constitutionality. Within this framework, restorative justice emerges as an expression of the rationalization and humanization of criminal law, by articulating comprehensive reparation for victims, the active assumption of responsibility by offenders, the protection of their rights and guarantees, and the restoration of the social relationship. Far from constituting impunity, its rational incorporation enables the exercise of punitive power to be redirected towards participatory responses compatible with human dignity. Accordingly, this research advocates a transition towards a constitutionalized criminal justice model in which punishment constitutes a necessary, legitimate, and non-automatic response- , reaffirming criminal law through the humanization of the Ius Puniendi exercise.