Un acercamiento a las garantías emanadas del derecho a la igualdad en la creación de la ley penal

Abstract

This paper analyzes, from the perspective of criminal law garantism, the right to formal equality as a material limit on the punitive power of the legislator. Using a qualitative and interpretative methodology with a hermeneutic basis, it examines the ratio decidendi of rulings of the Colombian Constitutional Court on equality in criminal law, together with doctrine and legal sources. The paper suggests how formal equality restricts the enactment of substantive criminal legislation and investigates the guarantees, prohibitions, and obligations that this right imposes upon the democratic legislature. The findings indicate: (i) formal equality demands that criminal laws penalize conduct rather than sex, gender, political or philosophical opinions, or other suspect classifications; (ii) the legislator has freedom to choose criteria of justice (legal interest, intent/negligence), but must justify that the preventive benefits offset the costs to fundamental rights; (iii) constitutional jurisprudence regarding the distinctions between civilians and military personnel (C-358/1997), and those existing between perpetrators and participants (C-015/2018), deserves a more careful review; (iv) constitutional jurisprudence on penal substitutes (C-592/1998, C-762/2002) did not apply strict scrutiny nor include empirical elements; (v) distinguishing between the phases of imposition and execution of punishment is necessary to prevent retributive criteria from improperly entering the post-conviction stage. It concludes that the right to formal equality must be rematerialized in the face of the crisis of the Colombian prison system.