Bibliographic citations
Valderrama, V., (2016). La determinación judicial de la pena de acuerdo al artículo 45-A del código penal y el principio de proporcionalidad. [Tesis, Universidad Andina del Cusco]. https://hdl.handle.net/20.500.12557/1123
Valderrama, V., La determinación judicial de la pena de acuerdo al artículo 45-A del código penal y el principio de proporcionalidad. [Tesis]. : Universidad Andina del Cusco; 2016. https://hdl.handle.net/20.500.12557/1123
@misc{renati/958505,
title = "La determinación judicial de la pena de acuerdo al artículo 45-A del código penal y el principio de proporcionalidad.",
author = "Valderrama Mayta, Veronica",
publisher = "Universidad Andina del Cusco",
year = "2016"
}
The American Convention on Human Rights (ACHR), in its Articles 5.2 and 3, states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Every person deprived of freedom will be treated with respect due to the inherent dignity of the human being. 3. The penalty cannot go beyond the person of the offender “, that is to say that any punishment should not exceed the human rights of the person as is their dignity and integrity, and as a State that we have signed International treaties must comply with them, it is a duty Every Judge to justify and determine the amount of the sentence that will be given to the accused, taking into account the general principles of Criminal Law and according to the guidelines of the current amendment of Article 45-A of the Penal Code that was modified by Law No. 30076 on August 19, 2013, which prescribes different circumstances that have to be taken into account when determining the penalty. But in a mathematical way, violating the principle of proportionality since this principle refers to the proper balance between the amount of the sentence and the proportion of the crime taking into account the fundamental rights of the person. In this sense, the present investigation seeks that the magistrates in determining the sentence, not only are based on the rule of article 45-A, but also use the general principles of Criminal Law, such as Proportionality and its Sub principles for an adequate weight of the sentence without affecting fundamental rights of the person, since with the incorporation of this article the principles of criminal law were left aside, with no option to lower the sentence below the minimum or increase the penalty Above the maximum, depending on the damage caused. It is for this reason that a study of the norms, sentences, doctrines, jurisprudence and the general principles of law, especially the principle of proportionality, which is also referred to by different jurisprudence, was carried out to carry out this research work. Concluding that the penalty must be proportional to the offense that has been affected, as mentioned in Cassation 355-2013, that the penalty can be lowered to well below the minimum, without taking into account the penalty ordered, as long as the facts are verified And are adequately tested, using the sub-principles of the principle of proportionality for an adequate Judicial Determination of the Penalty.
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