Problemas fundamentales del delito de tráfico de drogasuna propuesta de interpretación restrictiva integral

Resumen

The drug phenomenon can be analysed from diverse approaches, disciplines and arts: as a transnational business, a health issue, a crime; from a historical, anthropological and medical perspective, and from the view of the drug-user and of the literature addressing its pleasures and demons. The present thesis is placed within the field of the law science and it focuses on the systemic, dogmatic and politico-criminal study of the drug-trafficking offense which as every object of the legal system –therefore, social– exhibits one form of a number of approaches to the same issue, just that in this case, it only aims to present an abbreviated and specific critical view of its punitive regulation. Hence, the purpose of this study is to synthesise, from a critical and dialectical perspective, the key legal and politico-criminal issues of such criminal codification. This is with the aim of suggesting a set of foundations towards a more restrictive adhesion to the strict limit liberal principles of the punitive power. Thus, this work undertakes a legal method of literature review of doctrine and criminal jurisprudence. It also draws on other non-legal disciplines such as criminal policy and criminology and the analysis of some of their dogmatic theories considered relevant by the author of this work. These are: the protected legal asset of public health– the direct object of the offense and the conduct of the criminal codification across the iter criminis, both in the consummation, execution and preparation phase, apart from the concept and issue related to the author and the participants, as well as the aggravations and attenuations of the offense. This study argues that there are common and systematic conflicts among the aforementioned concepts and the material and formal limits of the mandatory constitutional criminal system. Therefore, providing that it less likely, nonetheless desirable, a restrictive change in the lege ferenda in the foreseeable future, this thesis proposes an integral and systematic solution that can offer a legal restrictive alternative de lege data.