SUPREME COURT CRIMINAL APPEAL BOARD OF
Judge Speaker: Yesica Ramirez BASTIDAS
Act No. 331 approved
Bogotá, DC, Wednesday, twenty (21) October two thousand nine (2009).
VIEW:
the Board resolves the appeal lodged by the defender of the accused Tocancipa ALFONSO RAFAEL RODRIGUEZ, CARLOS ALBERTO GARCIA GARCIA MIGUEL HERNÁNDEZ HERNÁNDEZ and against the sentence handed down by the Superior Tribunal of Medellin sentenced to penalties 34 months imprisonment and a fine of 130 statutory minimum wages, after finding him guilty of the criminal offense of manufacturing and marketing of substances harmful to health (Penal Code, Article 374).
FACTS AND PROCEDURAL ACTION:
1. The first were described by the ad quem as follows: Mr. Agustín GARCÍA
by the year 1956 released a product called Ratkiller GUAYAQUIL. Over time, in 1969 the base was banned substance due to lack of antidote. The 1998 death of the producer of this substance. The heirs, a total of eight brothers, tried to form a partnership to exploit the above mentioned product. However, there were discrepancies by mishandling some gave the goods of the same society, in that environment was commissioned SAMUEL GARCIA DARIO to make the necessary steps to register the mark, (who) at the end he did on behalf of society but on their own behalf. Then he formed a company with four brothers and led by DARIO GARCIA SAMUEL, SAUL SAMUEL composed it, and ELENA LUZ and the heirs of Miguel Garcia. Like the original company also presented problems, SAMUEL therefore would not put the brand on behalf of society. Anyway, the liquid product, it produced all the brothers.
In February 2003 the last of these INVIMA acquired the license to produce the rodenticide but another component called bromadiolone which comes as a pallet. Half of that year that person has a criminal complaint against Tocancipa ALFONSO RAFAEL RODRÍGUEZ, who later proved to be his brother, to produce the rodenticide prohibited without permission as the owner of the mark. It was built with a search and seizure of more than 20 tons of the substance. They are then linked the lords and CARLOS ALBERTO MIGUEL ANGEL GARCIA HERNANDEZ.
2. The complaint resulted in a preliminary inquiry (15/08/2003) and once you take some steps to open the summary available.
3. Supplied some irregularities noticed by the Office 13 Office before the Superior Tribunal of Medellin the defendants were investigated and the September 16, 2004 was declared the proceedings closed, uttering on 26 October of that year an indictment against Tocancipa ALFONSO RAFAEL RODRIGUEZ, CARLOS ALBERTO GARCIA HERNANDEZ MIGUEL ANGEL GARCIA HERNANDEZ and, by punishable contest patent and trademark counterfeiting, manufacturing and marketing of substances harmful to health (Penal Code, sections 306 and 374).
4. After carrying out the preparatory hearings and trial, the Sixth Criminal Court of the Circuit of Medellin on April 23, 2007, sentenced the defendants to sentences of 56 months in prison, 180 wages legal minimum monthly wage for the time of the events and disqualification from the exercise of rights and public functions for the same period of deprivation of liberty, to find them criminally responsible for crimes under the indictment.
5. The lower court decision was appealed by the defendants and the attorney for the civil party, and the Superior Tribunal of Medellin Case September 23, 2007, acquitted Tocancipa RAFAEL ALFONSO RODRIGUEZ, CARLOS ALBERTO GARCIA GARCIA MIGUEL HERNÁNDEZ HERNÁNDEZ and the fee patent and trademark infringement, and upheld the conviction for the offense of manufacturing and marketing of harmful substances health, why redosificó penalty and imposed 34 months' imprisonment and a fine of 130 wage.
6. Against the Court was filed by the counsel of the accused the extraordinary appeal, which was granted on January 21, 2008 and subsequently submitted to the Corporation.
DEMAND:
The defense filed two charges against the sentence, thus:
First post: It relies on the first paragraph of paragraph 1 of Article 207 of the Code of Criminal Procedure of 2000 to estimate that the sentence is in direct violation substantive law by engaging in a misuse of Article 374 of the Code Criminal.
considered the libel that the Court erred in the reason that the product injurious to health need not be intended for human consumption, because the rule is meant is the production, marketing or distribution of substances harmful to health are addressed human end. Then
makes a number of insights into the crimes of concrete and abstract danger, develops the content and scope of the legally protected and the concept of risk allowed to conclude that the conduct displayed by the defendants did not generate a risk associated with the typical behavior described in section 374 of the Penal Code, while the deployed action was not contrary to public health. Second
office (Subsidiary): He proclaimed that the statement was an indirect violation of substantive law (Criminal Procedure Code, Article 207-1 paragraph two), whose origin farm in error of law for false view of legality for the searches and raids.
notes that the measure of raid on 1 October 2003 was conducted by the INVIMA in the purported exercise of their duties of inspection and surveillance, but was not entitled to enter the house because it required the presence of a judicial officer enable the procedure. Qualifies as irregular the document signed by the residents voluntarily legalizing the procedure.
And regarding the entry and search conducted July 21, 2004 argues that collaboration of Guillermo Mateus driver, it should be illegal because it was given by an accused be permitted to witness of his crime. Similarly, the inspection made by the CTI to the seized goods was illegitimate because there was no presence of the Public Prosecutor or the defense in the sampling, and ignored the chain of custody rules. It follows
derives the impossibility of taking into account the evidence gathered by an illegal procedure and subsequent exclusion of other related evidence registration.
Consequently, the remaining evidence insufficient to sustain the verdict of conviction, because the testimonies in the process and the statements of specialist advisers do not provide evidence to convict conviction defendants.
Based on the foregoing, the censor asked her to marry defendant and the sentence was appropriate to issue a replacement ruling of acquittal.
CONCEPT OF PUBLIC PROSECUTOR:
First Deputy Attorney for Criminal Appeals summarized the facts of the process, procedural steps and demand. He then presented the discretion of the Attorney General on the two charges, as follows:
Regarding the former, referring to the direct violation of the substantive law for improper implementation of Article 374 of the Penal Code, made an analysis of legally protected interest in the crimes that protect public health, noted the existing case law and applicable provisions cited, and concluded that the product Matarratas Guayaquil itself must be regarded as one of those substances harmful to human health that is the type that penalizes the manufacture and marketing of substances harmful to health.
noted that although the rodenticide is not intended for human consumption is highly injurious to health reason for the existence of a set of rules prohibiting the use of mono sodium fluoroacetate, basic compound from which is produced Matarratas Guayaquil.
crime and danger as that provided in Article 374 ibid, the performance of any of the conduct described in the standard is sufficient to produce a threat to legally protected, which together with its harmfulness to health stands a serious attack on public health.
As for the second alternative charge, built from a mock trial course of law by performing a few searches and records, the Attorney clarified that although the step taken on October 1, 2003 was not ordered by a judicial authority, yes was advanced on behalf of INVIMA-in exercise of its laws and regulations, and was a visit of surveillance or health monitoring allowed by the inhabitants of the place and without the same journal the quality of entry and search under the terms of Code Criminal Procedure, acting within which the seized material harmful to public health found at the site, all of which subsequently combined with other tests and evidence, served to support the prosecution of Medellin Branch 40 ordered the opening of the criminal investigation, appropriate procedural in which endorsed the report policing.
, in conjunction with the measure of entry and search held on July 21, 2004 by order of Attorney Section 164, also joined the places voluntary consent of those who were there as stated in the respective acts. That they appear not subscribed by the prosecutor is merely an oversight because the judicial officer was at the scene itself, as is apparent in the judicial police reports, irregularities in the opinion of the Attorney General is pointless.
process also accounts for other evidence of testimonial and documentary order also withstand the failure, such as the seizure of the rodenticide, the denunciation of SAMUEL GARCIA DARIO ECHEVERRI, testimony DIEGO GALLO ALBERTO HERNANDEZ, JORGE IVAN RUIZ MONTOYA, SAUL ANTONIO GARCIA ECHEVERRIA, JUAN CARLOS GARCIA GONZALEZ, MARIA ALVAREZ QUICENO, JANETH STREET MARTHA TORRES, JESUS \u200b\u200bHERNAN GARCIA ECHEVERRIA, LUZ MARINA PÉREZ GARCÍA, JORGE ENRIQUE GARCÍA ECHEVERRI and own inquiries of the defendants, with which it is established that the defendants incurred in the wrongful conduct in producing and selling a banned pesticide manufacturing.
The Deputy Public conceptualized the first and second positions are not called to succeed.
CONSIDERATIONS OF THE COURT:
1. The appeal is seen as an extraordinary remedy and as a means of judicial review of the constitutionality and legality of decisions, which in terms of Article 206 of the Criminal Procedure Code 2000 is aimed at the effectiveness of substantive law, respect for the guarantees of the participants, repairing the wrongs inflicted on them and the unification of jurisprudence.
Following an appeal can be lodged to contest the sentence before they reach second grade material enforceable, and the special connotation comes from the fact to have outside bodies raises pending further consideration of what was discussed in them but value judgments against the ruling that ended the process essentially, had issued in violation of fundamental guarantees, materialized through a demand that is not free because development must adhere to some minimum software settings to specific grounds and only comes from judgments of the second degree.
's appeal as a means to control the constitutional and legal means for the Supreme Court the task of verifying that the decisions of second instance to conform to constitutional norms in particular as regards respect for fundamental rights guaranteed to each involved, and that the rulings of judges adhere to the strict legality. This function
restorative system Legal exercised by the Court, not only from the perspective of the classic understanding of the role nomofiláctica (nomofilachia) of the appeal, but, above all, about the protection by way of cassation or ius ius constitutionis litigatoris, imperatives define the origin of the appeal both protection of the law (and unifying nomofiláctica), as the litigant's rights (ius litigatoris) and just order guaranteed by the Constitution.
Pursuant to such purposes, when the Board accepts an application for appeal is to be understood that any defect attributable to it has been passed, which means that the parties and interveners no standing to challenge the formal aspects of libel, so that at the time to draw aside the transfer, the Attorney General may contradict or sees our the merits of the claim, in whole or in part, but it is not possible to choose which legal position and what not to refrain from referring to him as long as it is sitting in the jurisprudence of the Court.
2. The legal problems to be solved in this case are related to (i) the scope and interpretation to be given to Article 374 of the Penal Code, especially with regard to the legally protected as a crime and danger, and (ii) the false view of legality the possible illegality of measures of entry and search.
To answer this in the first place rather speak on the general legal and delimit the object of protection in the criminal offense of manufacturing and marketing of unhealthy substances (Penal Code Article 374), will be discussed and develop case law on the crimes of danger, and eventually the case will face charges proposed solving.
3. The legal and the crime of manufacturing and marketing of unhealthy substances (Penal Code Article 374):
3.1. The criminal has been unfair being founded on the basis of the legal protection of property, a proposal that is presented from different nuances, but that ultimately, despite the discrepancies that may exist between their supporters, identify themselves fully to understand that criminal law is justified As and when a right of the legal protection against injury or compromise that may suffer the same. In short, it proclaims conclusively that the role of criminal law is to protect legal rights.
The concept of legally justified as a limit on the punitive power of the state, which in a democratic social state of law to say that only includes criminal protection of those assets essential to maintain minimum living conditions. Only after certain conditions of life becomes indisputable legal system can show stability and consolidation of the legal and desirable value. Consequently, as a legal-criminal may not appear all that involves segregation, inequality, or contempt for a social group, whatever the reason, and besides, not everything is necessary legally protected by criminal law.
The legal right is clear limit on the punitive power of the state, which binds the legislature at the time of selecting those who considered worthy of protection through criminal laws, in order to prevent the realization of behavior with the potential to generate or increase risk of injury or danger to them-with an eye on the horizon of the fundamental rights enshrined in the Charter and the values \u200b\u200bcontained therein, and the judge when weighing whether or not disvaliosa conduct, or better, if it was harmful to the legal interest protected in this way.
With the above is meant that can not be protected criminal assets that do not represent the most important interests of society, and that the same attitudes to life, the moral ways of conceiving the world and society can not per se becoming a protection order punitive.
Likewise, the criminal law is presented as a subsidiary means for the protection of legal rights. Therefore, only be under the purview of criminal law those needed goods and deserving of protection as drastic as a criminal, but only in the event that there is no other appropriate legal means of protection, and these are insufficient, ie as a last resort.
Of particular importance is noted that the concept legally initially identified with the category "individual rights", but the social dynamic individual to establish the categories led regarding institutional property-referring to the state and its institutions-and the collective-owned social conglomerate, appearing with the emergence of new social and economic conditions that fundamentally affect societies seriously the lives of individuals and enjoyment of their rights, to be inadequate legal mechanisms to protect traditional or classic, category it belongs to public health.
Similarly, and given that modern society has taken the legitimacy of state power from the defense, protection and promotion of human rights, the legal right can be resized from them and from human rights you can integrate the categories that make up the dogmatic concept of crime.
So, first, the criminality, which is the place where it is carrying out the principle of legality - is imposed to check the subsumption of behavior in the model description of the legal concept and, secondly, requires check behavior appropriate to the type that affects whether or not legally protected, as the trial has a dual criminality assessment: (i) comparative trial of correspondence between behavior and the type, and (ii) verification trial on the adequacy of that behavior to affect (not injury) the legally protected by the standard. From this it is that criminality may be affected by the principle of insignificance and socially adequate behavior.
The illegality, secondly, be tied inextricably to the terms formal illegality and unlawfulness material impairment of value of action and impairment of value of output. Since the Colombian legislature requires an element of illegality effectively putting at risk the legally protected right, it is necessary to clarify that this refers to the risk that in concrete or abstract provided for the legislature to give the offense was verified so real and true. Finally, behavior can only be classified as unlawful as it is to create situations of risk inadmissible at effective interest noted.
Finally, thirdly, on the culpability the slightest possibility of participation by lower social classes in the social system and in some legal rights, should result in a lower requirement of guilty for violation of the rules protecting these legal rights, and not, as most of the time, in a repressive harder weaker, relying on so-called preventive needs that go beyond more than the culpability of the offender and rather serve to strengthen the system favoring social inequalities and social injustices that lead crime.
3.2. The accuracy of the legally protected interest in the crime under Article 374 of the Code ditto, goes to establish that it is part of Book II-Part Special-(Of the crimes in particular), Title XIII (on offenses against Public Health), Chapter I (From the effects on public health), a circumstance that allows sight the need for an approach to the concept of "public health."
The World Health Organization in its Founding Charter of 1946 defines health as a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity. Health implies that all people's basic needs are covered: affective, health, nutritional, social and cultural rights.
in physical health is part of one of the pillars of the quality of life, welfare and ultimate happiness. Today it has gone from an objective concept of health, conceived as a probability of life, is subjective in the sense outlined above physical and psychological welfare.
The "public health" is defined as the set of positive and negative conditions that ensure and promote health, with the adjective "public" a feature of the enforcement aspect of the typical action, which unfolds through the involvement of social groups, so that as a legal right is regarding collective of individually from people who may appear as directly and immediately affected.
Overall, the National Administrative Department of Planning explained that
Under the guidelines of the Health and Social Security of Colombia, public health is seen as the organized effort of society, mainly through their institutions public, to improve, promote, protect and restore the health of populations and the environment, through collective action, which should include not only the public sector but also private enterprise.
The management, regulation, modulation of the financing, insurance supervision and harmonization of the provision of health services, are state responsibilities.
Under the Social Security System in Health, Public Health has among its objectives, strengthen institutional capacity for planning and management, develop the scope and terms of health human resources, and develop processes aimed at permanent research improve the individual and collective health.
Other areas of great importance for the development of actions public health have to do with monitoring, evaluating and analyzing the health situation (epidemiological surveillance), the disease prevention and health promotion and the participation of citizens in health planning processes, the policy development and institutional capacity for planning and management in public health, human resource development and training in public health, basic sanitation, research, reducing the impact of emergencies and disasters on health, among others.
The same Constitution provides as a State public health:
Article 49. The health and environmental protection are public services by the State. It guarantees everyone access to health promotion, protection and restoration of health.
is for the state to organize, direct and regulate the provision of health services to residents and environmental sanitation in accordance with the principles of efficiency, universality and solidarity. Also, establish policies for the provision of health services by private entities and to exercise supervision and control. Also, establish the jurisdiction of the federal, territorial entities and individuals, and determine the contributions to by the terms and conditions outlined in the law.
health services are organized in a decentralized manner, with levels of care and community participation.
The law shall specify the terms under which basic health care for all residents will be free and compulsory.
Everyone has a duty to ensure the comprehensive care of your health and your community.
And the constitutional foundation of the legal right is given by the above-forecast rules Article 78 - provision in determining that
shall, in accordance with the law, who in the production and marketing of goods and services may jeopardize the health, safety and adequate supply to consumers and users.
3.3. Public health as well protected criminally was mentioned in the Penal Code of 1936, a statute in which different types were spent in articles 264 to 275 and were justified as the State must protect the community from anything that will cause damage or expose to danger. In these types of crimes were said that should be considered as common danger materialize in the possibility of producing harm.
And the Penal Code of 1980 articles 203 to 206 offenses against public health, which in the words of one commentator implied the existence of a threat to an undetermined number of people, with the caveat that criminal protection extends from humans to animals, plants and, in general, everything that serves those for food and kept under conditions favorable to physical and mental integrity.
The Criminal Code of 2000 set a title to regulate all the effects on public health, integrating it with two chapters relating to (i) public health and (ii) the drug trade.
In the preamble to the bill that eventually became the 2000 Criminal Code said
were created dos artículos cuyas conductas sin duda alguna atentan contra la salud pública, a saber: la imitación o simulación de alimentos, productos médicos o material profiláctico, pues en éste caso no se envenenan, contaminan, alteran, sino que se simulan, con el grave perjuicio que para la salud del consumidor puede ocasionar la ingestión o utilización de un producto que no tiene las características anunciadas; y, fabricación y comercialización de sustancias nocivas para la salud, que no requiere explicación alguna (Negrillas y subrayas originales).
El tipo penal propuesto estaba elaborado en los siguientes términos:
Artículo 361. Fabricación y comercialización of substances harmful to health .- Whoever without permission of competent authority to produce, distribute, supply, sells chemicals or substances injurious to health shall be liable to imprisonment for two (2) to six (6) years and disqualification profession, craft, trade, industry or commerce for the same period.
During the parliamentary debates it was stated that the public health law warrants a stand-alone because it is autonomous. Specifically on the criminal matters
review said
The development, distribution, supply or marketing of products that can be harmful to health, require permission the competent authority to perform any conduct by omitting such permission, is itself involved crimes against public health.
The proposed text remained intact but the reconciliation of December 24, 1999 was finally decided that the standard is as follows:
Article 374. Manufacture and marketing of substances harmful to health. Who, without permission of competent authority to produce, distribute, provide or market chemicals or substances injurious to health shall be liable to two (2) to six (6) years, fine of one hundred (100) one thousand (1,000) wages legal minimum monthly wage and disqualification for the exercise of the profession, art, trade, industry or commerce for the same period of deprivation of liberty,
This allows to establish that in the legislative process remained the normative element contained in the Bill (The without permission of competent authority), the different forms of the offense (develop, distribute, supply or marketing) and material objects (chemicals or substances injurious to health), but added the fine and penalty.
3.4. The national law has not been interested in studying these types of crimes and for the criminal offense of manufacturing and marketing of substances unhealthy (Penal Code Article 374), have been very few authors and reduced the glosses that has earned them this precept.
other foreign authors have dealt with dedication to the study of similar types to that provided under Colombian law. For example, in Argentina, it is said that in crimes against public health working with the idea of \u200b\u200bcommon danger or indeterminate, so that if it affects one person it is an attack on a very different, being sufficient to characterize the offense the existence of a danger to the community.
The English iuspublicistas to comment on crimes against public health, they do part of those crimes against collective security, have expressed that they respond to the need to protect those assets against the risks from the use or consumption of products subject to specific events from has allowed the development of a rich hermeneutic on product liability.
3.5. The foregoing discussion groups show that the public health legally acquired autonomy and independence in the penal code of 2000, developing statute constitutional mandate found that one form of protection it needs is criminal.
Likewise, when it became clear that public health is directly related promotion, protection and recovery of collective health, erected on state duty activities, must be accepted that the legally protected interest extends to all activities that directly relate to the health of the inhabitants of the country and the imperative of environmental sanitation accordance with the principles of efficiency, universality and solidarity.
Under these conditions, public health legal right is identified with the set of conditions that guarantee and promote the health of social groups, from which it follows without difficulty that it is an interest of social or collective nature, reason why in actual cases of producing a different result than expected the type is admissible punishable see a contest, as might occur, eg, the killing and / or personal injury. This means that the impact the legal asset is not linked to the creation of a specific danger to health or life of people in the individual sense, because with this offense forward the barriers of criminal involvement is incorporated as an element hazard to involve the provision of chemicals or substances harmful to health.
4. The crimes of danger and the manufacture and marketing of substances harmful to health:
4.1. Criminal legal dogmatics has developed different classifications of criminal, one of which is made from legally protected, why distinguish between crimes of injury and hazard issues dealt with by the law and that has led to the conclusion that
injury crimes are those that involve the destruction or diminution of the legally protected, like those established in Article 103 (murder - life) or 239 (theft - financial assets) of Act 599 of 2000, respectively.
For its part, the crimes of dangerous behavior are characterized involves the threat or put at risk the legal right to be protected. They are divided into crimes and crimes alleged danger danger concrete and demonstrable.
(i) Crimes of presumed risk. In these, the legislature assumes the possibility of harm to the legally protected. As, inter alia those contained in Articles 471 (conspiracy), 434 (association for the commission of an offense against public administration) and 365 (illegal possession of arms) of Act 599 of 2000.
...
(ii) Crimes of real danger or demonstrable. In these, it is necessary to demonstrate the effective occurrence of danger to the legally protected. Among them is v. gr. the fire laid down in Article 350 of Act 599 of 2000, which requires that the behavior of fire in a movable occurs "with common danger" by way must be shown that has been created with the aforementioned conduct a risk to the community.
criminal Systematics has evolved in the crimes of danger because it was initially understood as sufficient to consummate the verification of the threat, risk, the likely damage or injury (ESCRIVA), the potential injury (ROCCO, Bettiol, Berinstain), whereas the present requirement of endangering the well (MIR), a risk which should be compared to the legal and not subject ma ¬ terial. In the everyday
are many activities that can be considered as dangerous. Some of which enjoy social and sometimes legal permissibility: in industry, in the mass movement in sports. And while not prohibited practice within certain regulatory limits thereof, for example looking at the lex artis, show them as appropriate.
Construction of the hazard means a remarkable progress in the criminal barriers to protect certain legal rights that otherwise, would be in limbo.
In crimes of danger to the public in general, says the doctrine, the characteristic of the typical behavior is to punish conduct that the legislature believes that involve creating a hazard to life or of a community of people and an undetermined undetermined risk as to the damaging results, it is not possible to know what concrete results could be derived from dangerous behavior. Also, if the danger created by the subject may refer to an object or objects, whose actual injury has represented the subject as a result (either primary or secondary) of your action, then the rate is the criminal offense.
Clearly, the mere possibility that there is a result not authorized to speak of danger, as the danger should refer to the amelioration of conditions of security that is determined legally. The behavior must be manifested as hazardous, that is, suitable to affect the legal right. This means that to speak of a real danger it must be demonstrated that there was indeed the situation of danger to a physical object given legal. So, an absolute absence of risk has not neglected, but should lead to the exclusion of criminality because it can never become the budget of the punishment.
4.2. Crimes against public health use the technique of abstract danger and crime in the case of Article 374 of the Penal Code only describes the core of the unjust. Criminal policy reasons the offense is integrated with forecasts that matter have the administrative authorities, it is understood that this is possible to maintain a constantly updated protection and therefore more effective than a list of behaviors of a special law.
It is understood that the attacks against public health types are constructed as dangerous and
At the bottom of these crimes lies the idea of \u200b\u200badvancing the intervention of criminal law in order to use it in the punishment of dangerous behavior that, when occur in these areas, should be punished by the great significance of the damage that can lead to personal legal rights (life, physical integrity, health, heritage) and also for goods legal, social or universal (environment, flora and fauna) and the community as a whole.
In order for an assessment of the kind referred to in Article 374 of the Penal Code is not necessary that you specifically endanger the life or integrity of individuals, what this offense is punishable risk of abstract danger which is referred to the community by implementing the conduct described therein.
As a person that simply display any of the actions envisaged in the standard chemicals or substances injurious to health, pre-qualification must have been given by the administrative authorities such products and substances to be considered as established that the processing, distribution, supply or marketing is dangerous and must be suppressed as it supports the Constitution and the legislature has determined criminal.
5. Other contents of the article 374 of the Penal Code:
Pursuant propaedeutic function that is responsible to the Court as the highest authority of general jurisdiction and in order to make a substantial case law on the criminal offense of manufacturing and marketing of substances harmful to health, we proceed to specify the terms of such objective:
5.1. Active subject: undetermined ("one"), which means typical action that can be done by anyone with criminal capacity.
5.2. Conduct: You used the legislature a number of alternative actions verbs comprising the following guidelines: Develop
: Transforming a thing by means of appropriate work processes deployed in industry processes.
Syndicate: In its different meanings means (i) something between several people, designating what each one corresponds, as will, convenience, rule or law, (ii) to give something their appropriate placement or convenient location, and (iii) deliver goods to vendors and consumers
Provide: Provide someone of something needs.
Marketing: Give conditions and product distribution channels for sale, offer for sale a product. It is synonymous to negotiate, buy, sell, exchange or compensation.
is no doubt that verbs denote supply and market-like behaviors to distribute, which allows us to understand that such actions include selling. Likewise, the instant action because the conduct is exhausted by the mere realization of any of those listed here because it is one of the alternative compounds called crimes integrated with several governing verbs, each of which sets behavior performed autonomous and independent, sets the punishable behavior, which means that at the start of action in any of the arrangements, and the offense is consummated in its entirety.
As the role of interest in hermeneutics is to seek the meaning of the rule and not the expressions independently considered, it is noted that the above actions should relate to chemicals or substances harmful to health. Understanding
by product or chemical substance produced-made thing that has a definite chemical composition, regardless of their origin, must be added to it the epithet of a health hazard, a term that contains everything that is toxic (it any substance chemical administered to a living organism has harmful effects), harmful, injurious, offensive or harmful.
Here it should be stressed that a large number of chemicals are responsible for disease in humans and other living species. Moving up to living organisms through the air, water or food. This means entering the living body from the environment, by respiratory inhalation, skin or mucous membranes, from then if not neutralized, to the bloodstream and then to the rest of the body, saying many special tissue tropism, as so often characterized the signs and symptoms of the illness they cause. Complete cycle comprises phases of absorption, circulation, distribution, fixation and removal. Some cases do not enter the body and only to the surface.
5.3. Without permission of competent authority designated
conduct is punishable in both are made "without permission from competent authority." This term is also used in the crimes under Articles 193, 334, 336, 338, 346, 363, 365, 366, 375 and 376, has a similar meaning to the adverb "unlawfully" used in criminal law 1980-for example, sections 243, 244 and 247 -.
precisely in the Draft Criminal Code
said instead of "unlawfully" used in several provisions, was used "without authorization by competent authority or failure of the existing legislation, by administrative authorities exist control through the issuing of permits, the performance of the acts mentioned in the title, and their lack or failure of the originally authorized, which gives rise to criminal sanctions.
The term is to denote that the behavior is typical when there is no authorization or permission. Put another way: actions described in the penal provision are irrelevant when the action is the agent under permit or authorization issued by administrative authority. This allows stating that section 374 contains a "black criminal type," so that their achievements in the field of manufacturing to be understood as "chemicals and harmful substances" is determined by the competent administrative authority, which is solely the power to grant permits or permit the use of certain goods which could be dangerous for the survival of mankind and living creatures that make up the planetary family, because without their existence is not predictable human life on earth.
Clearly there is shown located, as a regulatory element of the offense, valuations own illegality of the trial, perhaps to emphasize on fundamental topics ¬ mental case individually, and called the doctrine of legislative impatience. But ensures that this term implies the existence of administrative regulation of such activities is to assess their development in accordance with her or the abuse.
6. The concrete case
6.1. First post:
noted the applicant that the statement directly violates the substantive law by engaging in a misuse of Article 374 of the Penal Code, because is wrong to consider the product injurious to health must not be intended for human consumption, since the rule is meant is the production, marketing or distribution of substances harmful to health are addressed beings end human.
As was noted above, the standard applies to all products and substances harmful to human health, but is relevant to whether or not intended for consumption by humans.
is not possible that the legislature has considered unpunished manufacture and marketing of substances harmful to human health when they are used for agriculture, livestock, aquaculture, etc. because such harmful products will eventually be consumed by people and wreak havoc on the health of the human species.
The same situation occurs with rodenticide known in this case, whose disastrous effects have been the subject of extensive research and prevention campaigns to prevent use as was done until the twentieth century, so that the interpretation of type and yields punitive provision by the Court is set to the content of the provision and scope of the legally protected.
of the risk does not permitted to manufacture and market substances harmful to health when the authority expressly for a long cycle has banned the use of a highly toxic substance, such as the pesticide Matarratas Guayaquil produced from fluoro mono sodium acetate (sodium fluoroacetate or sodium monofluoroacetato), one of the most potent toxins designed in the history of mankind
The offense in white under Article 374 of the Penal Code is complemented by regulatory provisions established in Law 9 of 1979, 253 1996, 430 of 1998 and 1252, 2008, Decree 3455, 1982, 1594, 1984, 1986, 704, 305, 1988, 1172, 1989, 1843, 1991, 374, 1994, 1546, 1998, 452, 2000 and other regulations issued by the competent authorities.
The laws and decrees mentioned mandates enshrined as follows:
(i) Act 9 of 1979:
Article 136 .- The Ministry of Health shall establish the rules for the protection of health and safety of persons from risks arising from the manufacture, storage, transport, trade, use or disposal of pesticides.
Article 138 .- Registration to approve the Health Ministry of pesticides for agricultural use does not relieve those concerned of compliance with the provisions for such products stipulated by the agricultural authorities.
Article 143 .- The commercial people are engaged application of pesticides must be licensed for operation issued by the health authorities.
of protection against rodents and other pests.
Article 201 .- The Ministry of Health or delegated entity shall regulate the control of rodents and other pests.
(ii) Decree 2092 of 1986:
ARTICLE 22. - You need veterinary issued by the Ministry of Health, in accordance with the provisions of this Decree, the following products:
16. Pesticides for domestic use.
(iii) Decree 1843 of 1991:
PESTICIDE. All staff of chemical, physical or biological mixing only or in combination, is used to prevent, suppress, attraction, or control of insects, mites, pathogens, nematodes, weeds, rodents or other organisms harmful to animals, or plants, their products, health or beneficial fauna. The definition also includes products used as defoliants, physiological regulators, pheromones and any other product which is considered by the Ministries of Health or Agriculture are considered as such.
...
Article 22. PESTICIDE BAN. Not allow the use and / or management of pesticides in the country where the product or one of its components is observed or show any of the following facts:
- carcinogenic, mutagenic or teratogenic effects caused by two or more animal species with similar metabolism, one mammal.
- The use and management constitute a grave risk to human health, animal health and plant health or environmental conservation, as determined by the Ministries of Health and / or Agriculture, and
- has proven effective or not effectiveness for the proposed use.
And experts have said about the composition of Matarratas Guayaquil,
The sodium fluoroacetate also known as Compound 1080, is used illegally as a rodenticide. Its sale is banned in Colombia. It is one of the most toxic substances known. However, are received in the Emergency Services poisoned patients with the substance of accidental or suicidal intent. It was known initially as "crack back" caused by the paralysis in the hind legs of goats. Is a compound that by law is presented with a blue dye, is odorless and tasteless.
sodium fluoroacetate prevents the energy metabolism. The fluorine content in it is incorporated into acetyl-CoA forming fluoroacetil-CoA in the Krebs cycle and thus transforming the citric acid cycle acid fluorocítrico. Inhibited by erythro isomer 2-fluorocitrate toxic action of the enzyme aconitase in the cycle. This makes the citric acid to isocitric not happen as often happens, and to accumulate Fluorocítrico. This accumulation creates a depletion of ATP and chelation of +2 valence elements such as calcium and magnesium resulting in injury in the CNS and the heart, mainly.
lethal dose 50 (LD50) for an adult is approximately 2-5 mg / kg. However, ingestion or inhalation of as little as 1 mg of fluoroacetate poisoning can produce severe. Death usually occurs at intakes greater than 5mg/kg.
The clinical effect may occur later than 30 minutes to several hours later while generating fluorocitrate. Usually there is a latency period of 6 hours in which the patient has constitutional symptoms such as nausea, emesis, salivation, anxiety and agitation.
produces the greatest impact in the CNS (hallucinations, convulsions, depressed respiratory center) and cardiopulmonary (hypotension, arrhythmias, pulmonary edema, ventricular fibrillation and cardiac arrest). Later tremors, hypothermia, metabolic acidosis (lactic acidosis) and impaired mental status. The sodium fluoroacetate, also known as "component 1080" and called in Colombia "Matarratas Guayaquil, is a rodenticide that has become a major cause of poisoning in our country. This is the presentation of the case of a 18 year old teenager who attempted suicide by ingestion of 30 cc of "Matarratas Guayaquil." She was admitted to hospital with blood pressure of 90/70 mmHg, heart rate of 100 beats per minute and respiratory rate of 18 breaths per minute without other significant findings on physical examination. It started with gastric lavage and intravenous ethanol (IV). Fifteen hours after admission the patient developed dyspnea, hypotension and tachycardia, with some crackles in the left lung base. Rays X-ray showed diffuse infiltrates suggestive of pulmonary edema. An electrocardiogram (EKG) showed a prolonged QTc with a slight ST elevation in leads DII and DIII and repolarization abnormalities with inverted T waves. Echocardiography revealed systodiastolic dysfunction. Troponin I was positive (0.6 ng / ml). Toxic myocarditis was diagnosed and the clinical course was directed toward improvement. The patient was discharged eight days later.
And the Internet can be seen that among the most feared toxins contained in privileged Compound 1080 or sodium fluoroacetate (ingested or inhaled), which as any poison animal proves to be too effective. The bodies of dead creatures because of 1080 remain toxic up to a year. Odorless, tasteless, soluble in water and without antidote, this compound blocks cell metabolism, leading to a quick but painful death.
The above mentioned indicates the dangers of rat poison for the toxicity of its parent, which would lead unambiguously to consider that the development, distribution, supply or marketing of this product is clearly harmful to health reason prevents precisely the issue of permits or licenses to those who seek to use it. Exceeds all
limit the risks socially condoned the action taken by a person who violates rules against the use of certain substances or chemicals that are harmful to public health, resulting as a consequence reprehensible conduct of the accused.
Finally, the criminal action is not affected or dependent on the existence of punitive administrative procedures that may well be concurrent or distance themselves from the conclusions to be issued in the judgments handed down by the judicial authorities.
The charge fails.
6.2. Second position:
expressed the applicant that the sentence contains an indirect violation of the law sustancial, cuyo origen finca en error de derecho por falso juicio de legalidad respecto de las diligencias de registro y allanamiento realizadas.
(i) No tiene razón el demandante porque la diligencia del 1° de octubre de 2003 fue realizada por cuenta del Instituto Nacional de Vigilancia de Medicamentos y Alimentos -INVIMA-, institución oficial de vigilancia y control de carácter técnico científico, que trabaja para la protección de la salud individual y colectiva de los colombianos mediante la aplicación de las normas sanitarias relacionadas con los productos de su competencia.
El propio Invima divulgó en su página web la ejecución de la referida diligencia , así:
Comunicados to users:
October 3, 2003
PESTICIDE OPERATIONAL IN MEDELLIN
INVIMA Operating in Medellín and Authorities seized shipment of Pesticide millionaire
in inspection, surveillance and control conducted by officials of the Institute, the Ministry of Health the capital of Antioquia and the National Police did seize a shipment of Pesticide millionaire illegal manufacture, abundant raw material the use legality under investigation and more than 100 000 product labels.
stocks took the lead in a building in the San Joaquin District where they met more than 27 000 small units of a product liquid, with the logo of MATA RAT Guayaquil, packed in plastic and glass containers.
The raw material was sodium fluoroacetate in nearly 500 metal cans. The product labeling does not indicate the number of health registration, the manufacturer does not appear, nor the number of lots, or their composition.
Based on the foregoing, the INVIMA put on record that the material found on this site does not meet sanitary standards in force, such as Decree 1843 of 1991, Law 09 of 1979 and Decree 2092 of 86 years.
Branch officials clarified that supplies the rest Institute health record product KILLS RATS GUAYAQUIL, whose composition is BROMADIOLONE and marketing moves forward without a hitch at the present time.
INVIMA proceeded to take samples of confiscated for their analysis, as well as an unknown substance was found in several plastic bags. Additionally
solicit the support of experts from the Ministry of Social Protection to determine if allowed by pesticide use in Colombia of the raw material sodium fluoroacetate.
INVIMA Director, Dr. Julio Cesar Aldana acknowledged the great support that has been providing not only the public through the provision of important information, but the great support being received by the different departments of health and authorities as the police, Das and officials of the Office.
ADVISORY OFFICE COMMUNICATIONS.
In pursuing its mission "To ensure public health in Colombia, exercising inspection, surveillance and disease control on scientific technical matters within its competence," and according to the functions conferred on it by Decree 1290 of 1995, corresponding to implement policies INVIMA health surveillance and quality control of drugs, biologics, food, beverages, cosmetics, devices and medical-surgical, dental, natural products, homeopathic and those generated by biotechnology, diagnostic reagents and others who may have an impact on individual and collective health. All efforts directly to the fulfillment of the obligation set out in the first component of the strategic plan.
precisely to meet the missionary objectives, the incumbent INVIMA the following functions throughout the national territory:
• Control and monitor the quality and safety of the products listed in Article 245 of Law 100 of 1993 and other relevant standards for all activities associated with their production, import, marketing and consumption.
• Advance the basic studies required, in accordance with its competence and propose the Ministry of Social Welfare that the technical basis required for the formulation of policies and standards regarding quality control and health surveillance products mentioned in Act 100 of 1993 and other relevant standards.
• Propose, develop, disseminate and update the scientific and technical standards that are applicable inspection procedures, health surveillance, quality control, evaluation and sanction related to health records.
• Coordinate the development of quality standards other organizations specializing in this field, under the powers conferred on them by law.
health records • Issue and renewal, extension, alteration and cancel them if he is entitled, in accordance with the regulations on the subject issued by the National Government based on Article 245 of Law 100 of 1993; the records so delivered shall be valid no more than that envisaged by the Government in developing the provision in Article 245 of Law 100 of 1993.
• Delegate some local authorities the issue of medical records and renewal, extension, modification, cancellation and other developments relating to them, in accordance with regulations issued by the National Government based on Article 245 of Law 100 of 1993.
• Establish operational guidelines and technical operating procedures to be implemented in matters related to this decree.
• Train, update, advise and control to local authorities on the correct application of standards and procedures in health surveillance and quality control of the products listed in Article 245 of Law 100 of 1993 and other standards.
• Promote, support and accredit institutions for conducting pharmaceutical and technical evaluations and quality control laboratories, advise and regulate its operation in accordance with existing rules, subject to the control that local authorities should bring forward .
• Perform laboratory tests to consider more complex the products specified in Article 245 of Law 100/93 and other relevant standards, develop, assemble and disseminate new techniques of analysis and to act as a national laboratory reference.
• Organize, direct and control the national laboratory network referrals the products specified in Article 245 of Law 100 of 1993 and other relevant standards and promote their development and modernization.
• Direct, coordinate and control the design, operation and updating of the information system, based on health records across the country.
• Resolve conflicts that arise in drug development and technical assessments, and the issuance, extension, renewal, amendment and cancellation of health records or other associated developments between applicants and the accredited institutions and delegates.
• Promote and conduct nationwide public service quality control, health surveillance and epidemiological results and adverse effects of the products of their competition.
• Identify and assess violations of health standards and procedures, and further investigations where necessary; implement the health safety measures and the sanctions law within its jurisdiction in accordance with Law 9 of 1979 and forward other authorities other cases assigned to them.
• Propose general measures to promote the implementation of good manufacturing practices in the development of the products listed in Article 245 of Law 100 of 1993 and the other relevant standards, as well as in transport, storage and other activities of marketing.
• Participate and collaborate with industry and the private sector in general aspects of training, upgrading, technical assistance and exchange of experiences and technological innovations.
• Forward when deemed appropriate, the inspection and monitoring visits to establishments producers and marketers of the products listed in Article 245 of Law 100 of 1993 and other relevant rules, notwithstanding that in these matters should advance the authorities.
• Authorize advertising that is directed to promote the sale and consumption of the products listed in Article 245 of Law 100 of 1993 in accordance with the provisions of Act 9 of 1979 and its implementing regulations and other rules issued for the effect. INVIMA may authorize a general and after, all advertising that meets the general criteria for the purpose provided.
• Identify, propose and work with relevant partners, in basic and applied research and epidemiological areas of competence.
• Conduct ongoing activities and coordination with producers and marketers, and education health with consumers, retailers and the general public on care in handling and use of products which the law gives oversight to the Institute.
• Provide medical clearance for import and export of products within its jurisdiction, subject to compliance with the requirements of current regulations.
• Tend, within its competence, through the harmonization of policies relating to health surveillance and quality control of the products listed in Article 245 of Law 100 of 1993 and other relevant standards, with relevant countries with Colombia commercially.
• Respond and enforce normas y reglamentos pertinentes que emanen de la Dirección del Sistema de Seguridad Social en Salud.
• Ejercer las demás funciones que le asigne el Ministerio de la Protección Social o el Gobierno Nacional.
Conocido el marco legal reseñado supra y determinadas las funciones del Instituto Nacional de Vigilancia de Medicamentos y Alimentos, queda establecido que le compete a la entidad desarrollar las actividades investigativas y sancionatorias cuando se conozca de la ejecución de acciones que atenten contra la salud pública, como ha ocurrido en el presente asunto.
Además, y como lo destacara en su concepto el Ministerio Público, la diligencia practicada por el Invima no fue a raid on the terms of the Criminal Procedure Code, but a measure of inspection, monitoring and control, which was operational cooperation of other authorities, activity also was deployed with the explicit cooperation of the inhabitants of the place inspected as seen in relevant minutes.
(ii) And regarding the entry and search conducted July 21, 2004 is not illegal that it could have been practicing with the collaboration of Guillermo Mateus, because everyone can contribute to the clarification of criminal acts, even accused, investigated or charged, a circumstance that should be assessed by the judge within the rules of sound criticism and taken into account for purposes of the penalty to be imposed, which in many cases it may be degraded significantly.
On the other hand, not a procedural act is invalidated by the absence or lack of presence in the same prosecutors. While it is desirable that the measures of entry and search officials attend the Attorney General's Office or the District or Municipal Personerías, to contribute to the supervision of an unrestricted compliance with the Constitution and law by those involved in the same no provision binds the validity of such procedural activities to the presence of these public servants.
also although the lack of signature by a prosecutor demonstrates a serious neglect by the officer, the evidence indicates that procedural steps before and after the seizure and search were signed by the same officer, a circumstance that makes the gap in the minutes of Heading the judicial officer who ordered, directed and coordinated the raid an inconsequential irregularity that does not diminish or detract from that it was carried by the official.
The Board notes that, in addition, the body of evidence collected in connection with this case is indicative of the occurrence of the offense under investigation. The complaint DARIO GARCIA SAMUEL ECHEVERRI, the testimony of GALLO DIEGO ALBERTO HERNANDEZ, JORGE IVAN RUIZ MONTOYA, SAUL ANTONIO GARCIA ECHEVERRIA, JUAN CARLOS GARCIA GONZALEZ, MARIA ALVAREZ QUICENO, JANETH STREET MARTHA TORRES, JESUS \u200b\u200bHERNAN GARCIA ECHEVERRIA, LUZ MARINA PÉREZ GARCÍA, JORGE ENRIQUE GARCÍA ECHEVERRI and inquiries of the defendants own , as it warned the fiscal officer, demonstrate that the defendants incurred in the wrongful conduct in producing and selling a banned pesticide manufacturing.
The charge fails.
A merit of the above, the Criminal Cassation Chamber of the Supreme Court, to administer justice on behalf of the Republic and by authority of law, and in agreement with the approach of the Agency,
RESOLVED:
1 °. Contested the decision not to marry.
2 °. To inform that against this decision no appeal.
Cópiese, report, implement and back to the Court of origin.
Julio Enrique Socha Salamanca
JOSE LEONIDAS Sigifredo ESPINOSA MARTINEZ BUSTOS PÉREZ QUINTERO GÓMEZ
ALFREDO GONZALEZ MARIA DEL ROSARIO DE LEMOS J. AUGUSTO
GUZMAN JORGE LUIS QUINTERO IBÁÑEZ MILANÉS
Yesid ZAPATA JAVIER ORTIZ RAMÍREZ BASTIDAS
TERESA RUIZ
NÚÑEZ Secretary. ===========================================
is for the Article 180 of Act 906 of 2004. Since ancient jurisprudence
said: "Next to the unification of jurisprudence and legal system defense through the control of court rulings, is attached between its ends to correct the unfair charges relapsed over the parties, what is the stimulation of particular interest for the appeal to be viable by putting an end to special damage caused by the contested decision "(Supreme Court of Justice, Board of Criminal Appeal on appeal sentences of 5 and 27 February 1976).
Supreme Court, Penal Cassation, Judgement of September 15, 2004, filing 21 064. Cf
Supreme Court, Judgement of September 15, 2004, filing 21 064. It was said that we must recognize that all institutes of criminal law are permeated by the values \u200b\u200band principles that informed the Constitution of 1991 enthroned as a model for Colombia Social and Democratic State of Law.
Supreme Court, Penal Cassation, Judgement of December 12, 2005, filing 23 899. Gonzalo D.
FERNANDEZ. Legal right and system of crime. Montevideo, Editorial B. F. Ltd., 2004, p. 160, 163, 167. FERNÁNDEZ
. Good legal system and crime. Ob. cit., p. 173 et seq
Supreme Court, Penal Cassation, Judgement of September 15, 2004, filing 21 064. Likewise, referring to the falsehoods friendly Supreme Court, Penal Cassation, Judgement of October 20, 2005, filing 23 573. FERNÁNDEZ
. Good legal system and crime. Ibid., p. 223 and following text is taken from the prologue to that film did Francisco Muñoz Conde, p. X. See
JOSEP VIVES-REGO, and JORDI Mirentxu Corcoy BIDASOLO NIEVA FENOLL, Crime crime against the environment and public health: legal terminology and scientific problems of current and proposed legislation ferenda in http://www.cica.es/aliens/gimadus/16/02_del_medio_salud_pub.htm (10/13/2009) . See
LUIS RAMOS RODRÍGUEZ, Digest of Criminal Law, Special Part, Madrid, Editorial Trivium, 1985, p. 90. SEBASTIAN SOLER states that these crimes we are facing common hazard types (criminal law, Volume IV, Buenos Aires, Ediciones Nueva Argentina, 1988, p. 553). JAVIER
BOIX REIG, "Crimes against collective security (ii) public health", in Criminal Law, Special Part, Valencia, Tirant lo blanch, 1996, p. 610.
National Department of Planning website http://www.dnp.gov.co/PortalWeb/Programas/Educaci% C3% B3nyculturasaludempleoypobreza/Subdirecci% C3% C3% BAblica/tabid/289/Default.aspx B3ndeSalud/Saludp% MONTENEGRO CALIXTO
B., Special Criminal Law Course, Bogota, Ediciones Professional Bookstore, 1977, p. 233-235.
LUIS CARLOS PEREZ, criminal law, general and special part, Volume III, Bogotá, Editorial Themis, 1990, p. 423. CLAUDIA BLUM
barber, CARRIZOSA ANGEL JESUS \u200b\u200bFRANCO, Rodrigo Rivera Salazar and DARIO MARTINEZ OSWALDO BETANCOURT, "Paper for first reading of the Bill Number 040, 1998 Senate through which issues the Penal Code, "Congress Gazette, 280, Bogotá, November 20, 1998 (See JAIRO LOPEZ MORALES, Background to the new penal code, Bogotá, Ediciones Doctrine and Law, 2000, p. 318.
Ibid, p. 320.
FERNANDO VELASCO LUIS CHAVES, Tarquin PACHECO, ROBERTO CAMACHO, FRANKLIN GARCIA, JUAN IGNACIO CASTRILLÓN, CLAUDIA BLUM barber, FRANCISCO MORA RIVERA RODRIGO SALAZAR ANGARITA and 'Act of reconciliation', Gazette of Congress, 605 , Bogotá, December 24, 1999 (See JAIRO LOPEZ MORALES, Background of the new penal code, op cit, p. 1107-1213).
For example, RB DIEGO BELTRAN, "Crimes against public health", in Lessons of criminal law, special part, Bogotá, External University of Colombia, 2003, p. 290-291; FRANCISCO JAVIER FERREIRA D., special criminal law, Volume II, Bogotá, Editorial Themis, 2006, p. 219-220; PABON PEDRO ALFONSO PARRA, Comments substantial new criminal code, Bogotá, Ediciones Doctrine and Law, 2001, p. 506, and JORGE ENRIQUE VALENCIA M., Colombian criminal law, special part, Volume I, Bogotá, Ediciones Doctrine and Law, 2007, p. 63-70, authors who practically runs the national bibliography on the subject.
SEBASTIAN SOLER, Criminal Law, Volume IV, Buenos Aires, Ediciones Nueva Argentina, 1988, p. 553. Especially
Articles 359 and 360 of the Penal Code of 1995, dealing with the development, delivery, supply and marketing of unhealthy substances or chemicals that can wreak havoc.
MUÑOZ FRANCISCO CONDE, Criminal Law, Special Part, Valencia, Tirant lo blanch, 1999, p. 601-608; JAVIER BOIX REIG, "Crimes against collective security (ii) public health", in Criminal Law, Special Part, Valencia, Tirant lo blanch, 1996, p. 607-612; ALFONSO SERRANO GÓMEZ, Criminal Law, Special Part, Madrid, Dykinson, 2004, p. 672-674.
In this sense it is said in Article 594 of the Act 9 of 1979 that " Health is a public interest, why in Article 595 ibid provides that "every inhabitant is entitled to health benefits, as the special laws and regulations and determine the duty to provide the preservation of their health and to contribute to maintaining the health of the community. " ALFONSO REYES
Echandi, Criminal Law, general, Bogotá, External University of Colombia, 1984, p. 155 and 156, and the typical, Bogotá, External University of Colombia, 1981, p. 164 and 171. With other classification criteria but with similar provisions include: FRANCESCO ANTOLISEI, Manual of Criminal Law, Editorial Themis, Bogotá, 1988, p. 182 and 183; ALVARO PÉREZ PINZÓN, Intro to Criminal Law ¬ tion, said Editor, Medellín, 1989 170; JOHA ¬ NNES WESSELS, Criminal Law, general, Ediciones Depalma, Buenos Aires ¬ us, 1980, p. 8 and 9; REINHART MAURACH, Criminal Law Treaty, Ediciones Ariel, Barcelona, \u200b\u200b1962, TI, p. 277; SANTIAGO ¬ MIR PUIG, criminal law, general, PPU, Barcelona, \u200b\u200b1985, p. 164 and 70; JOSÉ MANUEL GOMEZ BENITEZ, Legal Theory of Crime, Editorial Civitas, SA, Madrid, 1984, p. 167, HANS-HEINRICH Jescheck, Tra ¬ Tado Criminal Law, Bosch, Casa Editorial SA, Barcelona, \u200b\u200bTI, p. 357; e Ignacio Berdugo GÓMEZ DE LA TORRE et al, Criminal Law Course. Party general. Barcelona, \u200b\u200bEdiciones Experience, 2004, p. Ss 205 and
The type offenses alleged and actual danger is taken from the Italian doctrine and abstract expressions ¬ danger to the construction and concrete German dogmatic.
Supreme Court, Penal Cassation, Judgement of October 12, 2006, filing 25 465. RAMOS TAPIA MARY IMMACULATE
. "On the subjective complaint of the crime of reckless driving with conscious disregard for the lives of others", in Law, number 5069, Madrid, Tuesday, June 6, 2000.
The Supreme Court, Penal Cassation, In its Judgement of September 15, 2004, filing 21,064, said "the court assessed the contours of the conduct is indispensable to establish how effective was endangered. In another language, compared to a crime of danger must be assumed that the presumption in the rule in question is rebuttable, that is, that rebutted about the potential of behavior to create a real risk to legal asset protection order. " JUAN
Terradillos Basoco 'abstract and criminal guarantees Danger, "New Penal Forum, No. 62, Bogotá, Editorial Themis, 1999, p. 70 to 83.
MUÑOZ FRANCISCO CONDE, criminal law, special part Valencia, Tirant lo blanch, 1999, p. 569.
has clarified that the completion of any action or conduct described in alternative verbs to suggest that the crime was consummated.
Act 885 of 2004 approving the "International Convention on cooperation, development and pollution by oil, 1990" Made in London (30) November 1990 and "the Protocol on Preparedness, Response and Cooperation to events contamination by hazardous pollutants, "made in London (15) March two thousand (2000), defines hazardous and noxious substances as one that" may create hazards to human health, harm living resources and marine life, damage amenities or to interfere with other legitimate uses. "
VINAY KUMAR, ABUL K. ABBAS and Nelson Fausto, structural and functional pathology, Madrid, Elsevier, 2006.
By approving the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, done at Basel on 22 March 1989.
By prohibitive to promulgate regulations on environmental matters, relating to hazardous wastes and other provisions.
By prohibitive to promulgate regulations on environmental matters, relating to waste and scrap hazardous and other provisions.
By establishing rules regarding the appropriateness, quality, warranties, trademarks, legends, advertisements and public posting of prices of goods and services, the responsibility of producers, retailers and suppliers, and issues other provisions.
By which is partially regulated by Title I of Act 9 of 1979 and establishing rules mediomabientales. In Article 20 provides a list of "substances of medical interest."
forbade the use of DDT, its derivatives and compounds, unless they are used in the execution of advanced programs or campaigns or authorized by the Ministry of Health.
banned the importation, production and formulation of these organochlorines: aldrin, heptachlor, dieldrin, chlordane and Camphechlor and its compounds. Regulatory
the collection, preservation, storage, transport, fate and disposal of organs or anatomical components and procedures for transplants them the same in humans. Whereby
partially regulates Titles iii, v, vi, vii and xi of the Law 9 of 1979 on the use and handling of pesticides (amended by Decree 3213 of 2003).
Regulating the Issuance of Permits and Health Records of Drugs, Cosmetics, preparations Based Pharmaceutical Products Natural Homeopathic Products, Materials and Supplies Dental Health, and other provisions on the subject. Regulatory
procurement, donation, preservation, storage, transport, fate and disposal of anatomical components and procedures for transplanting them into humans, and on minimum conditions for the operation of Reproductive Biomedicine Units, Centres or similar.
By establishing rules relating to the generic pesticides. HOLES ARROYAVE
CLAUDIA LUCIA and others, Guidelines for the management of toxicological emergencies, Bogotá, Imprenta Nacional Colombia, 2008, p. 89-90. Http://www.laneros.com/archive/index.php/t-73510.html and http://wired.com/wired/archive/14.08/start.html?pg=4
In a report Regional Health Directorate of Antioquia on inspection, monitoring and control of environmental risk factors, consumption, vectors and zoonoses. 2008, focused on the town of Jericho, said that it is the duty of the authorities confiscate 100% of the products indicating the DSSA, especially those illegally marketed and distributed products such as Endosulfan (Thiodan, Thionil) made 1080, sodium fluoroacetate (rat poison liquid Guayaquil), these substances are prohibited Country Judgement as provided by the State Council, 1987. " Amen
other laws, this phenomenon is referred to in Article 258 of Decree 1843 of 1991: "Compatibility of sanctions with other responsibilities. The penalties imposed under the rules of this decree, not exempt from civil liability, criminal or other order which may be incurred for violation of Act 09 of 1979 and this regulation. " Http://www.invima.gov.co/noticias/wmview.php?ArtID=59
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