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Law and Justice

Law "and" justice "are two concepts that are often assumed inseparable, so much so that there are a large number of people who are confused as to the difference between them and use both words indistinctly without taking into consideration some Differentiating elements between the one and the other (ADLER, 2016).

Laws are a set of rules and guidelines established by social institutions with the aim of regulating the behavior of citizens of a nation. Briefly and clearly stated, the laws are what indicate what can and can not be done. Once the laws are put to a vote, the representatives of the citizens determine if they are applicable and in the end they are accepted or rejected. Therefore, when they are established in the country's constitution they have to be fulfilled in order to avoid the penalties imposed by the justice system in cases of disobedience (Cavadino, Cavadino-Dignan, & Dignan, 2011). The punishment received for non-compliance with a law is determined by the importance given to it within the country.

On the other hand, the concept of justice is based on equality, law, ethics and morality; So this concept embraces the idea that all individuals should be treated in the same way. Its relation to the laws is given by the fact that they are considered to be the same for all, that is, that if someone with a good social status commits a crime should be punished in the same way that someone would be punished does not have the same status (Conklin, 2013). Likewise, justice is not supposed to discriminate on the basis of ethnicity, religion, political ideology, creed etc ... of a person. Hence it is said that not always all the laws are just, because for example; In the United States once the slavery of people of color was something completely legal (the law allowed it).

In short, justice has more to do with the sense of morality, while laws, even though they are supposed to be fair; Sometimes they may be determined more for the convenience of the particular State or even for the benefit of a particular group within that State.

Crime statistics can show only a limited angle of real crime. This is one of the disadvantage since administrative records only include crimes that are reported and recorded or are discovered by the police or justice system authorities. Hence a considerable number of crimes committed in a society have not been recorded nor are they reflected in official statistics. In criminology there is a dark area of ??criminality; Known as the "dark cipher" or "black cipher."

Advantages and Disadvantages of Relying on Police Statistics to Understand the Prevalence and Effects of Crime

A high rate of the dark figure prevents key actors from understanding the criminal problem adequately, for example; Which are the critical areas and times where crimes occur, which are the most frequent crimes or the characteristics of the victims. The above information is important for the design of public policies to prevent crime and its evaluation. Criminal victimization surveys are a tool to illuminate the dark area of ??criminality and to expand the information obtained in criminal statistics. In particular, surveys are the first source of information on crimes that people rarely report such as intra family violence. This information helps to better design public policies in the areas of public safety and crime prevention; Certainly in general most of the victimization surveys are only representative at the national or state level and lack information at the local level (Tonry, 2001).

On the other hand the police information has the following advantages: this information allows the police to maintain an adequate security climate and protect people and their property in order to guarantee social peace (Davies, Croall, & Tyrer, 2010). The information allows development and consolidation of close and harmonious relations with the citizenry, in order to stimulate their conscious participation in the prevention of criminal activity in order to increase their cooperation and recognition of police performance. Most importantly it enables the police prevent the occurrence of criminal acts.

The information also enables police to verify the application of security and protection measures in the socioeconomic objectives of the respective surveillance areas.They execute inspection of the places prone to the commission of criminal acts or to hide their evidence.They observe, analyze and identify discretionary persons, objects and circumstances in protected places (Tonry, 2001). 

The expression penal populism has been popularized by the French jurist Denis Salas. It refers to the strategy deployed by political actors and the criminal justice system when there are problems of citizen insecurity, which consists in calming the popular outcry through appeals to increase penalties, hardening of punishments, reduction of criminal imputability Juvenile, and a series of laws that subsequently, at the time of implementation, do not have a real impact in the prevention and reduction of crime. 

Many countries do not escape the influence of criminal populism as evidenced in the claims for a modification of the Code of Criminal Procedure, for the reinstatement of the death penalty, the proposal of chemical castration as a sanction against sexual aggressors, That minors are judged as adults, and, in a general sense, the clamor for ?? hard hand ?? in the police.

Effects of Penal Populism on Principles and Purposes of Sentencing

Criminal populism as a discourse and practice becomes radicalized when it is mixed with a series of principles and purposes of the penal system, such as:

1. Judicial decisionism. Many criminal judges, although the obligation to motivate is of a constitutional nature and that has been enshrined in Resolution 1920-2003 of the Supreme Court of Justice, intuitively fail the cases, without taking into account the evidence and without resisting The popular pressure or the bureaucratic apparatus in order to preserve their positions (Percival, n.d.). Others are influenced by the lines that lower the spokesmen of the judiciary or the citizen organizations that press in the courts for their public policies to the detriment of the independence and the judicial impartiality.

2. The criminalization of the poor and the excluded.The criminal system activates and perpetuates a selective criminalization based on stereotypes where the poorest and most excluded social segments turn out to be the usual suspects.

3. The expansion of criminal law. Criminal law appears in criminal populism not as the ultimate ratio but as the ideal mechanism for ordering society. That is why punishable offenses are punishable to those behaviors that would suffice if they were civilly or administratively repressed in order to achieve the objectives of social pacification of the order.

Faced with this criminal populism, we can only insist that from the Criminal Law it is not possible to change society. In the final analysis, there can be no legal basis for punishment at the national level, as there can be no war on the international level. For that reason, the Criminal Law can only have as its mission to humanize the punitive action of the state agencies (McNeill, Robinson, & McNeill, n.d.). Its function is and can only be to limit the punitive power of the State and prevent it from eroding the ultimate guarantees of the rule of law.

Studies have shown that community based sanctions are effective in correcting and rehabilitating an offender as the other conventional jail is possible to substitute confinement in prison for house arrest, in order to avoid Penitentiary closure of the most vulnerable groups and those groups that deserve special protection, such as pregnant women or with minor children and the elderly, sick or with a disability.

The executing judge or competent judge may order compliance with the sentence imposed in domestic detention in the following instances:

a) To the sick inmate when the deprivation of freedom in the prison establishment prevents him or her from recovering or treating his illness adequately and does not correspond to his accommodation in a hospital;

Instances Where Community-Based Sanctions Can be More Appropriate Than Prison Sentence

b) To the offender who suffers an incurable disease in terminal period;

c) Inmate disabled when the deprivation of liberty in the prison establishment is inadequate due to its condition implying an unfair, inhuman or cruel treatment;

d) To the intern for more than seventy (70) years;

(e) The pregnant woman;

(f) The mother of a child under five (5) years of age or of a person with a disability under her care. "

The  regulation adds four assumptions to those previously existing, which were limited to inmates over 70 years of age (supposing d) and those who suffered from an incurable disease in the terminal period (supposition b).

With the  regulation, the first two assumptions refer to sick people, but while the second speaks of "incurable disease in terminal period," the first provides for the arrest for sick people when prison imprisonment "prevents them from recovering or adequately treating their disease". It is a broader assumption, which does not require a risk of imminent death of the person, but provides for house arrest for sick people whose illness can not be adequately treated in prison (Malloch, & McIvor, 2013). Legal provision may include a multitude of cases, since jail is not a suitable place to treat most diseases adequately.

With respect to the case of the inmate who suffers from an incurable disease in the terminal period, as has been indicated, this is an assumption already existing in Law.which, however, often encounters many problems of application, proof of which is the Large numbers of inmates who die from HIV / AIDS or other incurable diseases in prison, especially in the Penitentiary Center for Infectious Diseases and in the penitentiary hospital of the Federal, or are Derived to hospital extra walls a few days before death (Hondeghem, Rousseaux, & Schoenaers, n.d.). Particular attention should be paid to the obstacles that prevent severely ill people from being able to spend their final months away from State coercion.

The third paragraph provides for the substitution of imprisonment for house arrest in the case of persons with disabilities when prison imprisonment implies treatment that is unworthy, inhuman or cruel. This assumption will apply to all cases of detainees with reduced mobility or some other disability (blindness, deafness, etc.) that prevent them from carrying out the daily activities of the prison (work, education, recreation) or requiring permanent assistance from another Person that the prison institution can not afford.The assumption of the over 70-year-old prisoner does not present major problems of interpretation, since age constitutes an objective condition of the subject.

The fifth case concerning pregnant women is a novelty introduced by the reform, and part of the premise recognized by all specialists that the prison is not a suitable place for a pregnant woman.

Lastly, the sixth scenario, which provides for the replacement of incarceration by house arrest, is that of the mother woman of a child under 5 years of age or of a person with a disability under their care (Hanser, n.d.). This case is part of the recognition of the fundamental role of the mother in the raising of children, especially the young. On the other hand, it supposes an acceptance of the indications about the harmful effects that the jail has on children under 4 years, questioning in this way the only "solution" provided by Law, consisting in the confinement of the children next to your mothers. The new regulation is much more reasonable, when arranging the exit of the prison from the mother, instead of the income of her son.

An adequate interpretation of the new legislation that is consistent with the special protection granted to the most vulnerable groups by the National Constitution and international human rights treaties should be taken into account.

The concept of victim has varied throughout history; However, their participation in judicial proceedings is still absent. A reform is necessary that allows the victim to receive a dignified and respectful treatment, with the aim of achieving a more effective defense of their interests and to avoid that the process increases the damages that have caused to him.

The judicial system is put into operation when the authority receives the news that a crime has been committed. For this system to work there are certain subjects that have to be present. First who decides, the judge (professional or lay). Then, for most crimes, a state prosecutor, the prosecutor (Hale, Hayward, Wahidin, & Wincup, 2013). Third, the perpetrator of that prohibited conduct, the accused, who has the technical support of a lawyer (public or his trust). And fourth is the victim, the person who suffers the crime in the flesh.

The participation that was assigned to the offended in the criminal process, historically, has been varying. That is why analyzing the criminal system from its perspective is an interesting exercise that will allow us to evaluate how political and social changes have impacted or affected the recognition of the rights that are agreed upon, as well as where we are nowadays.

In a small historical journey, in free regimes like the ancient German, Greek and Roman peoples, it was inconceivable that a criminal proceeding was initiated if there was no accusation of a natural person, usually the offended himself (Hale, Hayward, Wahidin, & Wincup, 2013). However, there were certain behaviors that endangered society as a whole, and therefore any citizen - the one in the best position - could carry out this fundamental task.

The fall of the Roman Empire implied a political change since all the power was concentrated in a single person, the king, and in relation to the subject that summons to us, the criminal infraction no longer affects the rights of a certain person but puts at risk Those of society. For that reason, the criminal process becomes a mechanism of control of the citizens. As a result, the criminal system is appropriated by the authority. All the functions that are developed in the process remained in the head of the inquisitor. In this scheme, the victim is relegated to a marginal place: to be a mere whistleblower.

Obviously, a system sustained by violence and authoritarianism could not last. The French Revolution generated a new social transformation, and consequently, of the criminal process. However, it maintained the power to accuse the head of the State (the Fiscal Public Prosecutor) and the victim continued in the background. The idea was that the criminal process was such an important activity that it could not be made available to citizens. In this model, already started the 20th century, the offended was gaining space until he was recognized as an adhesive action to the prosecutor. That is to say, it does not have a decision power on whether or not its case should continue but that it will follow the fate established by the public prosecutor. In short, we continued to deal with a "forgotten" subject. 

Only in the last years began to vary and began to recognize - in certain provincial systems - a greater recognition of rights and powers to intervene in the processes. This also generated, as we shall see below, new (and renewed) doubts about the role it has to play in criminal proceedings.

Now, this historical route leads us to ask what happens to the victim in the Argentine criminal justice system. As the object of study is very broad, because each province has its own procedural regime, I will concentrate on the procedure that regulates federal crimes as it processes those more sensitive cases (for example, trafficking in narcotics, crimes of injury Humanity, crimes committed by national public officials or trafficking in persons). At the same time, this system also investigates common crimes (just by way of example, homicides, robberies, sexual abuse, etc.) 


Adler, F. (2016). Criminology. [Place Of Publication Not Identified]: Mcgraw-Hill Education.

Cavadino, M., Cavadino-Dignan, .., & Dignan, J. (2011). Penal systems. London [u.a.]: SAGE.

Conklin, J. (2013). Criminology. Boston: Pearson.

Davies, M., Croall, H., & Tyrer, J. (2010). Criminal justice (1st ed.). Harlow, England: Pearson Education.

Hale, C., Hayward, K., Wahidin, A., & Wincup, E. (2013). Criminology. Oxford: Oxford University Press.

Hanser, R. Community corrections.

Hondeghem, A., Rousseaux, X., & Schoenaers, F. Modernisation of the Criminal Justice Chain and the Judicial System.

Jones, M. (2004). Community corrections. Prospect Heights, Ill.: Waveland Press.

Malloch, M., & McIvor, G. (2013). Women, Punishment and Social Justice. Hoboken: Taylor and Francis.

McNeill, F., Robinson, G., & McNeill, F. Community punishment.

Percival, G. Smart on crime.

Tonry, M. (2001). Penal reform in Overcrowded times. Oxford: Oxford University Press.

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