The Offense of Abuse of Authority and the Harm Principle

Abstract

This article analyzes the criminal provision contained in Article 416 of Law 599 of 2000, the Colombian Criminal Code, concerning "abuse of authority through an arbitrary and unjust act." It argues that the nature and purpose of this provision do not correspond to sanctions proper to criminal law, because the legal interest it appears to protect acquires genuine relevance within administrative sanctioning law, particularly in its disciplinary dimension; for that reason, the provision should be excluded from substantive criminal law. To support this thesis, the study identifies the constitutional limits on legislative discretion in criminal policy, specifies the scope of the criminal-law program of the 1991 Constitution and of the harm principle or protection of legal interests, and finally examines the guiding principles of administrative sanctioning law