Summary of El Garantismo Penal Ferrajoli y Carbonell

00:00:00 - 00:55:00

In this video, Ferrajoli and Carbonell discuss the decline of garantism in the penal system, and how mediatization has weakened some of the protections that the citizen has. They also discuss the principle of legality, which is the principle that the law must be applied impartially and without bias. Unfortunately, in the modern penal system, garantism is often undermined by mediatization.

• 00:00:00 This video discusses the issue of garantism, which is the principle that one has the right to be protected by the state from arbitrary punishment. Ferrajoli and Carbonell discuss the decline of garantism in the penal system, and how mediatization has weakened some of the protections that the citizen has. They also discuss the principle of legality, which is the principle that the law must be applied impartially and without bias. Unfortunately, in the modern penal system, garantism is often undermined by mediatization.
• 00:05:00 The video discusses the principle of legality, which is the foundation of the penal system in most civilized countries, and how it is not upheld in its entirety in El Salvador. There is a mediating process between the principles of legality and infractions administered by administrative authorities, which results in a relativism of law. Salvadoran law allows for the imposition of administrative sanctions through municipal ordinances and execution regulations, rather than only through law. This mediating process, which is referred to as "mediatization," allows for a greater degree of flexibility and discretion in the imposition of penalties by the government. In addition, there is a lack of a strict distinction between criminal and administrative law in El Salvador, and concepts of criminal law are often indeterminate. Finally, the principle of legality is not completely upheld in El Salvador due to the existence of cloud clauses, or clauses which are undefined in terms of their legal consequences. The type of crime is not exclusively created by the law, but also by the administrative power, which can intervene in the creation of infractions and impose penalties. There is also a lack of a precise description of criminal behavior in El Salvador, and it is impossible to create a code of infractions.
• 00:10:00 The article discusses the disappearance of traditional penal guarantees in the area of criminal justice, specifically in the area of sanctions. It points to the fact that, in Europe, laws have been passed in Italy and Germany trying to introduce culpability, but in Latin American countries, it is practically not required. Another difference is that, in contraventions, infractions, and crimes, the authors point out that the guilty party must have acted with malice or at least guilt, but in administrative sanctions, this is not always required. Furthermore, the presumption of innocence also disappears in this area, and instead, the Administrative Procedure Code refers to a presumption of administrative responsibility. This is an adjudicative presumption, meaning that the person is presumed to be responsible for the act. However, in practice, administrative agencies often circumvent this procedure by avoiding judicial proceedings.
• 00:15:00 This video discusses the perils of transferring criminal justice power from the state to the private sector, and the need for greater safeguards for the individual. It discusses the particular case of a man who has been subjected to severe administrative penalties, despite having committed a criminal offense. The author argues that the state's abandonment of its fundamental responsibilities results in an increasingly insecure public, and that administrative penalties are particularly invasive and harsh.
• 00:20:00 This video discusses the concept of "garantismo," which is a new word in the juridical and political vocabulary that has been introduced in the 1970s by some of the authors of the Constitution. Garantismo refers to the use of techniques of guarantees, which are obligations and prohibitions placed by the public sector on behalf of the political power of the majority. This concept is relevant to the discussion of fundamental rights, as all of these rights would be without guarantees, and the right to life would be absent. All fundamental rights would be dependent on guarantees to be effective. This video also discusses the concept of "democracy," which is founded on the principle of equal rights for all.
• 00:25:00 The video discusses the concept of "garantism," which is a legal term that refers to the belief that certain rights should be protected by law regardless of the consequences. The main points discussed are the difference between "liberal" and "social" garantism, the different types of rights that are protected by garantism, and the international nature of garantism. The video also discusses the idea of "penal liberalism," which is a theory that holds that the penal system should be limited in its power to punish. Finally, the video mentions the importance of ensuring that the rights of individuals are protected by law, and the importance of having strict, enforceable laws.
• 00:30:00 The video discusses the relationship between guarantees in the legal system and the legitimation of the law. It argues that the principle of legal certainty is a necessary condition for the legitimacy of the law, and that the guarantees of the legal system are the basis for a critical and political theory of the law. The first thesis is that there is a link between guarantees and the justification of the legal system, in that the law can only offer justification for itself as an alternative to the state of nature through the principle of the strongest. The second thesis is that the principle of legal certainty produces a divergence between the duty to be in the law and the duty to be in law, and that constitutionalism creates a tension between the two. The third thesis is that constitutionalism is the system which produces these guarantees.
• 00:35:00 Luigi Ferrajoli, a prominent legal theorist, published the book "Derecho y Razón de Vértigo" in 1995. This work discusses the theory of the garantismo penal, or the theory that the penal system should only enforce the most fundamental rights set forth in a country's constitution. Ferrajoli argues that this temporary, contingent enforcement is a necessary part of the fight for the law, and that it affects all of us as lawyers and citizens. Ferrajoli's most famous work, "Derecho y Razón de Vértigo," discusses the theory of the garantismo penal. This theory holds that the penal system should only enforce the most fundamental rights set forth in a country's constitution. Ferrajoli argues that this temporary, contingent enforcement is a necessary part of the fight for the law, and that it affects all of us as lawyers and citizens. In 2009, 16,000 people were killed in Mexico, of which 97% were killed in the state of Chihuahua. Ferrajoli argues that the garantismo penal is a problem in Mexico because it leads to a focus on revenge instead of justice.
• 00:40:00 According to data from the Mexican police, the vast majority of detainees that they arrest are taken into custody at the same time that the crime is being committed - this is called "flagrancia." Second, almost two-thirds of all detainees that are taken to court are released without being convicted. Finally, of the detainees that are convicted, almost half never have a chance to speak to their lawyer alone. This severely limits their right to a fair trial. When a person is taken into custody by the Mexican police, only 60% are ever brought before a judge. Of those that are brought before a judge, almost half never have a chance to speak to a lawyer. This leaves many people without a fair chance to defend themselves in court.
• 00:45:00 The video discusses cases of people who were violently arrested and how often they were injured. It states that, on average, out of 100 crimes committed, only 10 are reported to the authorities, and this is 90% of the time never reaching the knowledge of the authority. The video also discusses the issue of impunity, citing data that show that, on average, in the Federal District and in the State of Mexico, when a person calls the police, half the time no agent arrives within six hours. From there, it discusses the issue of convictions and punishment, noting that, in most cases, the victim does not report the crime because they do not trust the authorities or do not want to pay for the police investigation. The video concludes by discussing the issue of overcrowding in prisons and pointing out that, in some states, prisons are already at capacity.
• 00:50:00 In Mexico, the female population is the most vulnerable to the virus of the AIDS pandemic, and women recluses are particularly at risk. The rate of homicides in prison is eight times higher than the rate of homicides in the general population, and suicide rates are five times greater. The youngest prisoners are the most at risk for suicide. The Mexican prison system is rife with corruption. The detainees surveyed report that they are often forced to pay family members to visit them, and to bring them food and other items. In addition, almost one-third of prisoners report receiving gifts from prison officials in exchange for favors such as visits from spouses or children. The 2008 reform of the Mexican penal system has the opportunity to be a re-evaluation of the penal system based on the principles of garantismo, or "guaranteed rights." This principle was articulated in Luigi Ferrajoli's 1970s writings, which culminated in his book, Ideas Related to the Criminal Law, published in 2000. According to this theory, the penal system should be based on the principle of "hear and see," which would allow prisoners to exercise their rights freely. For example, allowing same-sex marriage would be a step in the right direction towards extending rights
• 00:55:00 Luigi Ferrajoli is a prominent Italian legal theorist and philosopher who has written extensively on the philosophy of law. He has spoken about the need for Mexico to return to its original goal of penal reform, which would reduce the number of types of crimes and punishments in a single, coherent system. This would improve the efficiency and rationality of Mexican penal law, and would also make it more reflective of human rights. Ferrajoli has also spoken about the need for Mexico to reduce violence against victims and inmates, and to address the issue of informal vengeance.