Bibliographic citations
Flores, R., (2020). La inconstitucionalidad del Inciso 3 Artículo 59 del Código Penal Peruano, por vulneración del derecho a la libertad personal [Tesis, Universidad Andina del Cusco]. https://hdl.handle.net/20.500.12557/3906
Flores, R., La inconstitucionalidad del Inciso 3 Artículo 59 del Código Penal Peruano, por vulneración del derecho a la libertad personal [Tesis]. PE: Universidad Andina del Cusco; 2020. https://hdl.handle.net/20.500.12557/3906
@misc{renati/17866,
title = "La inconstitucionalidad del Inciso 3 Artículo 59 del Código Penal Peruano, por vulneración del derecho a la libertad personal",
author = "Flores Quispe, Rosa Clotilde",
publisher = "Universidad Andina del Cusco",
year = "2020"
}
The present investigation seeks to expose the problems arising from the application of article 59, paragraph 3, of the Peruvian Criminal Code, because it refers to the non-payment of civil reparation (rule of conduct laid down in article 58, paragraph 4, of the Criminal Code) by the convicted person who was ordered to suspend the execution of the sentence. However, by failing to comply with this rule of conduct, it runs the risk of being revoked by the effective penalty, applying article 59, paragraph 3, of the Criminal Code, that is, personal liberty would be restricted only for failure to provide civil compensation. With regard to the payment of civil reparation, the right to freedom enshrined in article 2, paragraph 24, c, of the Constitution, which clearly prohibits imprisonment for debt, is being violated, In the event of failure to perform duties of a nutritional nature, the Court of First Instance ordered an exceptional and only prison sentence. It is also necessary to apply the Test or Principle of Proportionality, since the measure imposed in article 59, paragraph 3, of the Criminal Code when it fails to pay civil compensation. it would not be appropriate, necessary or even proportional, because revoking the suspension of the execution of the sentence will not necessarily result in the convicted person performing the civil reparation, nor will it be able to satisfy the legitimate interest of the plaintiff to be compensated for the damage caused; therefore, the legislative measure would not be necessary either, because the victim has sufficient other legal mechanisms provided for the collection of civil reparation, without imposing such a burdensome measure on the convicted person as the loss of his personal liberty. Nor does this legal device It is also necessary to apply the Test or Principle of Proportionality, since the measure imposed in article 59, paragraph 3, of the Criminal Code when it fails to pay civil compensation. it would not be appropriate, necessary or even proportional, because revoking the suspension of the execution of the sentence will not necessarily result in the convicted person performing the civil reparation, nor will it be able to satisfy the legitimate interest of the plaintiff to be compensated for the damage caused; therefore, the legislative measure would not be necessary either, because the victim has sufficient other legal mechanisms provided for the collection of civil reparation, without imposing such a burdensome measure on the convicted person as the loss of his personal liberty. Nor would this legal mechanism be proportional, since between the legitimate right of the victim to civil reparation, which affects his constitutional right to effective judicial protection, and the personal freedom of the convicted person, We believe that personal freedom must be given greater weight and must make its way through this collision of constitutional rights, without proportionality to the aim pursued by the measure used. The application of this rule in dispute would have consequences in terms of overcrowding in prisons by imposing a custodial sentence for such recurring crimes that provide for short-term sentences, we are also currently in a global health, economic, and moral crisis due to the COVID 19 “Coronavirus“ pandemic that hits our country and different departments on a large scale, The State is therefore seeking to reduce the number of prisons so that there is no crowding of more inmates and it does not become an infectious source. It is therefore clear that the amendment and incorporation of a paragraph in article 59, paragraph 3, of the Criminal Code concerning the non-payment of civil reparation, because it contravenes a rule of constitutional status. This amendment will strengthen the protection of personal freedom, which is a fundamental right, and will always be safeguarded by any court, respect for constitutional principles and the purpose of the sentence, will also contribute to reducing prison overcrowding.
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