Castigar al Prójimo. Por una Refundación Democrática del Derecho Penal

Abstract

IN 1998, THE CONSTITUTIONAL COURT OF COLOMBIA ISSUED one of its most significant rulings, case T-153, which declared the existence of an unconstitutional state of affairs (USoA) in the country's penitentiary system. In my opinion, this ruling is of the utmost importance for two main reasons. The first is because it consolidated a doctrine, the USoA, which had barely been outlined before this case. The USoA doctrine defends the structural intervention of the Constitutional Court in those cases in which the Court detects a massive and systematic violation of rights. Such a situation is understood to have been generated by deficiencies in the institutional arrangements of the state. Applying this doctrine, when the Court detects an “institutional blockage” that generates a violation of rights of this magnitude, it declares the existence of an unconstitutional reality, the principal consequence of which is that the Court takes on functions in public policy making, resource allocation, and the implementation of economic and social rights that would pertain to the legislative branch in a conventional model of separation of powers. The second reason that the case T-153 ruling is important is that it demonstrates the challenges inherent in addressing proper judicial performance with respect to the implementation of economic, social, and cultural rights (ESCR). Since the first appearance of the USoA doctrine, it has become an important discourse for configuring the analytical framework for judicial review of the implementation of ESCR within the context of structural reform driven by the courts.