Hacia una implementación del análisis económico del derecho para el delito de soborno transnacional en colombia, en relación con la tensión existente con el principio de proporcionalidad de las penas

Abstract

The purpose of the research includes analyzing and proposing the feasibility of implementing the approach of Economic Analysis of Law (AED) in the crime of Transnational Bribery hereinafter ST, within the Colombian legal context against the United Nations Convention against Organized Crime. Transnational that in its article 2 determines as serious crimes those that have sanctions with deprivation of liberty of at least four years. Starting from the problem:“relationship of proportionality between the specific criminal sanction and its functional purposes”, in this aspect the Colombian penal system determines the penalties in relation to the crime committed and its impact on society. In this regard, as far as we know, no defined criminal, legislative or judicial policy criteria have been established that solidly justify the application of criminal sanctions. Therefore, it is inappropriate to be able to establish a direct relationship Prison(Time)=Functions (Compliance). Although article 4 of Law 599 of 2000 typifies the functions of the penalty (resocialization of the convicted person), establishing that serious penalties have a retributive function, which implies that they must correspond to the damage caused, the system lacks a mechanism that explains how and why a given sanction fulfills these functions. The crime of Transnational Bribery in Colombia was selected for two reasons: first due to the limited treatment and development received despite the strong economic and social impact it represents for society. In Latin America exemplified by the still unresolved case of "Odebrecht". And secondly, due to its basic classification, it responds to the international commitment acquired by Colombia when adhering to the Palermo Convention in 2003. Likewise, the Economic Analysis of Law (AED) was adopted as a guiding scientific criterion. To highlight the existing tension by visualizing the impropriety manifested in the equation: “Criminal sanction = Functions of the sanction.” A lack of rationality has been identified in this equation, but it is proposed that, through criteria such as the Economic Analysis of Law (AED), an approach can be formulated that allows considering options for more effective punitive practices such as the creation of the registry of those convicted of the crime of transnational bribery called RESOBOTRANS in the present investigation. In the current Colombian Penal System, hereinafter SPC, penalties for corruption are ineffective, with asset recovery below 16%, a situation that does not deter criminals, according to the statistics (2012-2023 period) issued by the Comptroller's Office. General of the Nation. Appendix 1.