Imputación penal a los dirigentes en estructuras criminales

Abstract

[EN]Organized crime is one of the major concerns that society faces today. The lack of uniformity in the treatment of criminal responsibility towards the leaders in these kinds of groups, make this palpable. The main causes that create organized crime are; economic power, social power, security, and nonattendance of the State. There have been various proposals in the task to frame the responsibility of a leader in these criminal groups, such as determination, co-authorship, mediated authorship, and mediated co-authorship. However, throughout this research it was evident that none of them adapts to the realities of society and new challenges for authorities. To reach a more suitable interpretation, I based my reflections on the ideas of Friedrich Hegel and Niklas Luhmann, related to ethics, law, Systems Theory and the purposes of punishment, guidelines that set a path for the solution. Under these postulates, it is established that the analysis about the responsibility of these leaders should be based on; firstly, the double imputation understood as a total imputation of the actions in the entire criminal organization, meaning that the responsibility belongs to all the members, without losing sight of the individuality of each action and, consequently, the quantum of the penalty according to the proportion of the contribution. Another important aspect, is the responsibility resulting from a leader´s breach of his duties, contained on the capabilities by Institution and Organization, which start from the creation of an unauthorized risk, and then translates into a typical result, if this is contemplated in the criminal program; conduct that in addition, is attached to the principle of trust, the prohibition of return, the prohibition of overvaluation and self-endangerment. These postulates explain the limits to the responsibility of each leader, guided -even- to mitigate the abuses of criminal law. Also, with them, it is possible to reach interesting conclusions, such as that all crimes committed by the leader of a criminal organization, regardless of their nature, are crimes of improper omission.