Also it must review, in the case of the duplications through computing means that the conduct is done with profiting purposes or at commercial scale. The national legislator has revealed a tireless commitment to bring to the penal arena behaviors that do not affect in a conspicuous way the assets which are legally protected.
In other words, it included conducts that represent a low affectation to the legal assets to be subjected to a summary procedure, where the charge of the investigation belongs not to the Office of the Attorney General of the Country, but to the National Police, according to Article 36 of this regulation.
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Above Law was declared unenforceable by the Constitutional Court by ruling C of , considering that it violates the Constitution, because according to Article , the authority of investigating legal processes that are penal rooted only can be carried out by the Office of the Attorney General of the Country. With this modification to the constitutional document, and with the purpose of relieving the justice system 13 , in the Draft Law 48 Senate was presented to the Congress of the Country, it was proposed:.
Delimited only to the field of the special abbreviated procedure, in other words when penal responsibility is processed due to punishable conducts described on the Third Book of the Criminal Code. According to the abovementioned draft regulation, highlighted contraventions are those ones threatening life and personal integrity, the inviolability of habitation or place of work; the intimacy; the reserve and interception of communications; the liberty of work and association; the religious feeling and respect to dead; the moral integrity; the family; the failure to provide maintenance; the economic property; the public trust; the economic and social order; the public security; the public administration; the effective and righteous justice administration, and the existences and security of the State.
It brought variations in relation to the Draft Law which created it, in both the substantive and procedural laws. Thus, it orders the amendment of the articles that in the Code of Criminal Procedure approach the figure of the punishable complaints conducts, keeping in every case the same penalties that were established in the Criminal Code.
This clearly indicates that the legislator opted for processing through the special abbreviated process, certain type of investigable conducts of ex officio. However, this law provides that the special abbreviated procedure and the private prosecutor are suitable to this kind of punishable; it does not mean that they are considered criminal complaints. This inference is the result that in the year , a total of In , 1. Finally, in , 1. The fact that a punishable conduct becomes a criminal complaint, according to the Article 73 of the Criminal Code, it means that the penal action discontinues in a term of six months following the date of the occurrence of the punishable conduct if the crime complaint is not presented.
Previous statement means that the legitimate claimant -unique authorized to begin the penal action- counts only with this peremptory term except for unforeseeable circumstances or acts of force majeure to report to the competent authorities the occurrence of the facts Supreme Court of Justice, SP Arising as a result of the above, conducts that affect the legal assets of the copyright have not been become criminal complaints, taking into account that these rights are fundamental to consolidate the development of the country, so the production of creations -works in particular- contributes to the culture, knowledge and intellect Erdozain, , p.
Authors like Gaviria have pointed out, that the crimes against the copyright, although cover individual assets, they are characterized because they influence common interests necessary for the economic and social development of the country Piracy must be assumed as one of the most serious ways of crimes against the private property and national treasury smuggling. In this regard, it does not result coherent that some punishable conducts that are of specific concern -and that affect in a strong way the society- be assumed through a summary process like the specific abbreviated procedure.
On the contrary, these conducts must be subjected to a procedure that guarantees to the prosecuted and the victims the realization of their rights, in which they count on enough legal terms to consume an excellent investigative and judging stage, where the judge counts on the easiness of access in a direct way -in hearing- to all the elements of evidence collected, both, by the prosecutor and the advocate. Only then, the judge can deliver a sentence for giving a definitive solution to the issue subjected to his knowledge, recalling the words of Dr.
The private prosecutor and the conducts that affect the copyright. The case of crimes against property rights. Another aspect to take into account is the referred to the possibility that in the processes governed by the special abbreviated procedure, the investigation and prosecution become assumed directly by the victim of the punishable, under the figure of the private prosecutor.
With this in mind, the conducts that must be processed by the abbreviated procedure stated on the Book VIII of Law , with exception of those ones that impinge on the assets of the State and of processes carried out by the penal responsibility system for teenagers, it can appeal to the private prosecutor figure Cuentas, , p. From the above, it is clear that this figure is focused on serving to individuals who have the necessary economy incomes to pay those services. Although, the victim of the punishable conduct can act as a private prosecutor through a student of a legal aid clinic, that assists these activities for free, also he must entail costs of the investigative work that involves to collect and to obtain material items of evidence, physical proofs and legal information gotten to support the prosecution, highlighting that this investigative function is not assumed by the legal aid clinics of the accredited universities, and therefore the victim must pay these services.
What was stated above takes people of low incomes who occasionally resort to the books and CDs street sale, or common persons such as students, researchers and teachers who need information without profit motives come to be reduced and victims of their basic rights violation when they are object of actually disproportional penal sanctions, in contrast with the activity carried out and the patrimonial impairment that these actions individually devised cause to the big enterprises that exploit to a big scale the property rights of the author.
Then, it regulates the process of the special abbreviated penal procedure, what implies that although the crimes against copyright are not crime complaints, the victims can have access to an expeditious process, where the process stages are reduced. Finally, the law determines that the established penalties on the Criminal Code are preserved.
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Likewise, Law -as it does not establish a difference among punishable conducts- allows that non crime complaints, as the copyright, be conducted through the special abbreviated procedure, and therefore the judge must impose the sentence set in penal type, so the affectation to the legal asset becomes minimal, due to the contravention is a modality of punishable conduct. Respect to the referred above, it needs to be observed that the special abbreviated procedure is not the ideal to be conducted in the case of copyright, since these prerogatives -of great social importance due to the interference in the economic evelopment of the country and its contribution to the exaltation of the culture, knowledge and intellect- they must count with a process that include enough procedure terms in order to the investigative and judging stages guarantee the rights of the prosecuted person and the victim.
Finally, in particular in the property rights of the author, this process can benefit only the holders of these rights who have power in the market, because they have the resources to carry out the prosecution and investigation of these crimes, even when the prosecuted person has incurred in the punishable conduct but the affectation to the legal protected asset is minimal, it means, that it is not materially anti-juridical.
As conclusion, to accomplish with the aims of the punishable power of the state in the case of the copyright, it is necessary to exclude the crime against prerogatives of processing them through the special abbreviated procedure and the private prosecutor.
Revista Nuevo Foro Penal , 9 81 : Bernal, D. Los derechos morales de autor como derechos fundamentales en Colombia. Revista La Propiedad Inmaterial , No. Bernal, J.
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El proceso penal 6. Botero, Carolina Cabrera, K. Courtis, C. Observar la ley. El juego de los juristas. Madrid: Editorial Trotta. Cuentas, R. Manual de procedimiento penal especial abreviado y del acusador privado. Delgado, A. Derecho de autor y derechos afines al de autor. Tomo II pp. Madrid: Instituto de Derecho de autor. Erdozain, J. Derechos de autor y propiedad intelectual en Internet. Madrid: Tecnos. Frontier Economics The economic impacts of counterfeiting and piracy. Gaviria, V. En Lecciones de derecho penal.
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Upegui, G. Fundamentos de Derecho Penal Parte General. Zea, G. Derechos de autor y derechos conexos. Legislative Act 6 of , Congress of the Republic. Political Constitution of Colombia, Convention of Berna, Convention of Roma, Constitutional Court, Sentence C of April 28, Constitutional Court, Sentence C of May 5, Any other coaching guidance? Don't have an account? Currency and addition of Tax VAT depend on your shipping address. Bibliography in Punishment and Culture. Authors: M. Add to Cart. Have an Access Token? Enter your access token to activate and access content online.
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Punishment and Culture A Right to Punish? Table of Contents. Related Content. Author: M. Cherif Bassiouni. The Statute of the International Criminal Court was the realization albeit imperfect of the oldest and longest-postponed item on the UN agenda, a judicial arm that could enforce the Universal Declaration of Human Rights and the Genocide Convention. For scholars studying this slow but crucial development in the international law of war crimes, crimes against humanity, and genocide, here is the essential documentary history: the draft statutes of , , , and , along with various related reports, the Statute, and commentary by Professor Bassiouni, who chaired the Drafting Committee of the Statute.
Published under the Transnational Publishers imprint. This volume critically explores the basis and the goal of punishment from the standpoint of the right to punish.