Membership in a Criminal Organization: Offender-Based Criminal Law in Peru and Act-Based Criminal Law in Argentina?

Pinedo Sandoval C.A. · Revista Juridica Austral (2024) · DOI: 10.26422/rja.2024.0502.pin

Resumen

When we speak of membership in a criminal organization, that label gives the impression that we are dealing with the punishment of a mere state or status and, therefore, that this criminal offense does not, prima facie, concern the legal-criminal category of action, but rather the category of legally relevant states. A sector of Argentine scholars, in this sense, has considered that membership cannot be interpreted as “mere association”, “integration” or “being there”, but as “taking part.” Otherwise—following this reasoning—a mere internal tendency of the offender would be punished. If this interpretation were correct, however, the Peruvian criminal definition of membership in a criminal organization would have to be considered unconstitutional, since, by limiting itself to the punishment of those who “join”—in the sense of “being a member of”— a criminal organization, it would be criminalizing a mere internal tendency and, thus, violating the principle of the act. In this context, this research is based on the assumption that, beyond the legal formulation of the criminal offense, it is necessary to answer a question that, although fundamental, is generally neglected: what does it mean, in the context of the dynamics of today’s society, to belong to or be a member of a criminal organization? Only by answering this question will it be possible to establish satisfactory premises in the legal-criminal field.

Instituciones: Universidad de Piura