Conceptual and methodological overview

• Pages: 9-16
• Author: Rodrigo Uprimny Yepes,Diana Esther Guzmán,Jorge Parra Norato

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Addicted to punishment Dejusticia Working Paper 1

is report explores whether the recent evolution of criminal legisla-

tion in Latin American countries with regard to drug-related conducts re-

spects these minimal guarantees to w hich criminal law should be subject,

and especi ally whether that crimina l legislation can be considered propor-

tionate to the harm caused by prohibited conducts. Ultimately, the question

is whether the crimes and punishments outlined in national legislation are

proportionate. If the answer is no, the conclusion should be that they may

even be unconstitut ional within the framewo rk of a constitutional state.

To address this question, the report explores the recent development

of criminal laws on drug-related crime in seven Latin American countries:

Argentina, Bolivia, Brazil, Ecuador, Colombia, Peru and Mexico. ese

countries were chosen based on two basic criteria. First, they are of academ-

ic importance, because they have dierent drug-related problems, dierent

geographic locatio ns, diverse contexts and dierent pol itical systems. Ac-

cording to traditional categorization, Colombia, Peru and Bolivia are consid-

ered producer countries; Mexico and even Brazi l are considered transship-

ment countries.11 ey also represent the dierent regions of Latin America,

from the Southern Cone to the furthest Spanish-speaking country in North

America.

Second, there is a key practi cal criteri on, because they are the coun-

tries represented in the Colectivo de Estudios Drogas y Derecho (CEDD), the

group that carried out this study, which seeks to identify the characteristics

of drug policy in the continent and document its eects. is investigation is

a component of the second phase of CEDD’s research, which focuses on ex-

ploring the proportionality of crimi nal legislation in those seven countries.12

is comparative analysis contributes additional elements to discussion of

the proportionality and reasonableness of prohibitionist drug policies.

11 These traditional categories hae been uestioned recently, as the dy-

namics of the global drug business have undermined many of them. For

example, while Colombia raned as a drug producer in the s, the

increase in domestic use points to it also becoming a consumer country.

For practical purposes, however, the classical categories mentioned are

useful for identifying differences in the countries’ domestic situations with

regard to drugs.

12 For more about CEDD’s studies, see, among other works, reports by Meta-

al, . and oungers, C. (eds.) () and rez Correa, C. (ed.) (). The

individual reports about proportionality and drug laws in the seven coun-

tries studied by CEDD, are available at: http://www.wola.org/es/informes/

colectivo_de_estudios_drogas_y_derecho

is report has three main parts. e #rst provides a conceptual and

methodological overview of the elements that form the basis of the analysis.

e second describes the pr incipal recent trends in criminal drug legisla-

tion in Latin America. e third analyzes the proportionality of drug-related

crimes and punishment in the countries, comparing them with penalties for

other serious crimes, followed by some conclusions.

Conceptual and methodological overview

is section describes the concept of propor tionality as used in this re-

port and how it is used to measure the proportionality of drug control leg-

islation. Before presenting the conceptual and methodological elements,

however, an init ial reection is oered –essential for understanding the

analysis– on the harm done by conducts that are de#ned in Latin America

as crimes related to controlled substances.

ree key issues are the focus of this section. First is the i ssue of the

legal interest supposedly protected by the de#nition of drug-related crime

and the harm actually done by those conducts.13 Second, an explanation

is provided on what is meant by proportionality and how it can be mea-

sured in criminal law. Finally, we discuss how proportionality is measured

in drug-related crimes and penalties adopted in the seven selected coun-

tries in the past 60 years.

Protected legal interest and harm

in drug-related crimes14

Before examining the proportionality of drug-related crimes, we must ask

what legal interest15 is to be protected (bien jurídico tutelado) by the de#ni-

13 Note about the English translation: This paper was written originally in

Spanish and included concepts and language developed in Latin Ameri-

can criminal law, which correspond mainly to civil law tradition. Legal con-

cepts in the civil law tradition, which are widely used in Spanish, French or

Italian, do not always have a precise English translation, because English

legal terms are strongly linked to the common law tradition. We have there-

fore adjusted some terms in this English version, explaining those terms as

necessary with the Spanish terms in parenthesis.

14 This preliminary discussion draws on and develops elements previously

discussed by the authors, particularly primny, uzmn and arra ().

15 From here on, we draw on a guarantee-based concept of legal interests,

which is not reduced to the content of criminal law, but which reuires,

as a necessary and sufcient condition, some sort of social agreement.

n speaing of the protected legal interest, therefore, we refer to a guar-