Objective Conditions of Punishability and their Procedural Treatment in Peru

Abstract

This article examines the objective conditions of punishability and their treatment in the Peruvian criminal process. It analyzes the doctrinal confusion about this concept, highlighting that, although guilt is necessary, it is not always sufficient to impose a criminal sanction, since the concurrence of circumstances external to the criminal type, known as objective conditions of punishability, is indispensable. Likewise, it presents a distinction between these and the conditions of actionability or prosecutability, emphasizing that the former refer to elements external to the crime that condition the imposition of the penalty, while the latter affect the validity of the criminal proceeding. In addition, the incorporation of these institutions into substantive criminal law and their dogmatic evolution are mentioned. Finally, specific cases in Peruvian jurisprudence are discussed, such as the crimes of adultery, fraudulent bankruptcy and abandonment of the family, in which the lack of compliance with an objective condition of punishability makes it necessary to raise, instead of a prior question, an exception of the nature of action, thus differentiating the appropriate procedural treatment for each situation.