Los «delitos culturales» a la luz del derecho a la propia cultura y de los principios constitucionales

Zusammenfassung

This thesis analyzes the legal relevance the ethnic-cultural factor should have in the defendant's criminal responsibility, especially in the legal systems of Spain, Italy and Germany. I try to give an answer to this question based on the recognition of the right of the persona belonging to an ethnic minority to his o her own ethnic culture (Article 27 of the International Covenant on Civil and Political Rights ) and the enhancement of constitutional principles in criminal matter (in particular, those of legality, harm, equality and personality of criminal responsibility and punishment). The findings of the study are that the ethno-cultural factor leads to cultural conflicts that affect criminal law at three different levels: a) as normative conflicts between informal or cultural norms (not necessarily with ethnic connotations) and the rules derived formal criminal provisions and their practical application, b ) as cognitive conflicts between the worldview of the defendant with respect to the surrounding world and the worldview from  which the judge interprets the objective elements of the crime, c) as motivational conflicts in the psyche of the perpetrator between the (usually intrinsic) motivation derived from socioculturally acquired informal norms and the (usally extrinsic) motivation derived from the standards imposed by law. The first type of conflict is resolved by trying to promote a change in the cultural norm through informal social control, or legally formalizing the conflict by recognizing the right to the one's own culture, or reforming the formal norm in order to reach a compromise between the two systems, especially through the proceduralization. The second type of conflicts can be resolved by giving legal relevance to the inability to access to the motivating norma, which is derived from the defendant's mistake (of fact or of law). Finally, the third type of conflict tends to be resolved within the scope of duress defence and/or the phase of sentencing.