El garantismo penal, sus variables en la pena privativa de libertad en la calumnia.

Abstract

Criminal guarantee is a criminal legal theory with a constitutionalist and utilitarian perspective that presents regulatory ideas known as variables. These allow regulating the power of the State, establishing fundamental procedural rights, focusing the penalty on minimizing the damage to the convicted person and maximizing the satisfaction in terms of a comprehensive reparation to the victim, as well as determining a correct rehabilitation process for the punished person. These variables are representative of three legal figures: the minimum penal intervention, the purpose of the penalty and the proportionality of the penalty; legal standards that allow analyzing the necessity, coherence, and suitability of the penalty. Slander is an infraction that has undergone several reforms throughout history, such as its change from a purely civil nature to being typified as a crime in criminal law, and in turn, from a pecuniary sanction to a custodial sentence. It is for this reason that, in a guaranteeing analysis of these three legal figures, it is established that the penalty of imprisonment of the crime of slander is disproportionate with respect to the legal right that it intends to regulate and protect and that it infringes the purposes of the penalty. In response to the problem, the civil action for moral damages is analyzed as a capable and sufficient way to protect honor and reputation.