The Application of Restorative Justice in Colombia and the Non-Violation of the Principle of Criminal Legality

Abstract

The consideration of a strict principle of legality as a guaranteeing and sanctioning axiom of the penal system is related by a certain doctrinal sector to legal difficulties when it comes to applying restorative justice. In order to achieve a better appropriation and extension of the application of a restorative justice model in criminal law, this article seeks to influence existing conditions such that criminal law operators may apply restorative justice to numerous punishable behaviors without discomfort, and with a sound scientific basis. This article proposes a holistic study of the principle of legality and its relationship with restorative justice, based on an analysis-synthesis methodology applied to a doctrinal, normative, and jurisprudential study of a national and international level. The main objective should be to determine how the relationship between the principle of legality and the restorative approach works in Colombia. In this framework, when using restorative justice, the ius puniendi is taken into account as a constitutional power which is not violated by the use of a third way to criminal law. This is not a model of civil justice: it allows the expansion of a practice in which the principles of criminal law are present, such as the voluntary and active participation of the victims, and in which the victims stand out as the center of attention. The victims’ requests are taken into consideration, and they become part of the solution to the criminal conflict. The conclusion posed here is that criminal law together with retributive justice, and hand in hand with restorative justice, are part of the dialogue necessary for a reconciliation between the victim, the aggressor, and society in general.