Eficiencia del derecho penal. el caso de los delitos contra el medio ambiente

Abstract

The establishment of penal types in relation to the new risks that prevail in our society should limit itself to assumptions concerning juridical rights that deserve, are in need of, and are susceptible to penal protection. Currently, an ad affectum criterion of legitimization of the penalty is accepted, and this is consistent with a justification based on utilitarian criteria. This means that the presence of a juridical right worthy and in need of protection is not always sufficient to legitimate penal intervention; the potential effects that the penal code will cause should be considered as well. And if the objective of the penal law is the protection of certain fundamental juridical rights, its legitimization should find its value in relation to the effective protection that they can receive. Other beneficial effects of the penal code would not be sufficient to justify it. Therefore, the merely symbolic penal law constitutes an illegitimate practice of the penal authority, with an impact that in the long run jeopardizes the efficiency of the penal system itself. The problem described above materializes with the aid of a possibly new "crime against the environment."