¿Actos preparatorios o pre-crímenes? ¿Penas o pre-castigos? Aproximación al fundamento de la criminalización de la preparación delictiva

Abstract

The aim of the present study is, firstly, to demonstrate that the penalising of many of the preparatory offences included in our legislation is based on the dangerousness of the actor rather than on his or her specific acts (actor-based criminal law). Secondly, it seeks to draw attention to the serious dangers which this criminal law paradigm raises for the principles underpinning a democratic state governed by the rule of law. While the analysis will be based principally on the example of Spanish positive law, it will also draw on the Anglo-American experience, which offers a particularly expressive example of the evolution of contemporary criminal law towards a purely preventive model, and it will also consider Italian legislation. The last part of the study explores the rationale to be given for punishing acts preparatory to an offence in a democratic system and, in doing so, some considerations are made about the content to be granted to the act requirement.