Abstract

TRONCOSO MOJICA, Jeofrey Alfonso. Criminal Cassation: from Nomophylax to Control of Constitutional Legitimacy of Sentences. Opin. jurid. [online]. 2021, vol.20, n.42, pp.397-421.  Epub May 19, 2021. ISSN 1692-2530.  https://doi.org/10.22395/ojum.v20n42a16.

The present work addresses the precedents of the penal cassation, it’s teleological components and the constitutional reform of 1991 in Colombia, in order to propose from a constitutional approach from a skill of contesting, focused in the effective control of the judgments of the second instance, to allow to overcome the classic extrapolated nomophylactic function of the state that emerged from the French Revolution, without propitiating the third instance. To develop the problem of the investigation there went forward a rigorous documentary the study, to which a descriptive and analytical method was applied to, from the precedents of the cassation and its juridical-political nature, the teleological essentials of the resource and its relation with the ideal of justice that supports the current social state based on the rule of law. The study shows that the nomophylactic function of the cassation yields before the effective tutelage of the fundamental rights of the parts, the repair of the inflicted grievance, and the search of a just democratic order. Consequently, in the new philosophy of the Colombian State the cassation is named to control the ambiguities and inequities of the judges, beyond the deeprooted dogmatic conceptions of the extraordinary resource.

Keywords : criminal cassation; extraordinary appeal; legitimacy check; judgment; effective justice; fundamental rights; nomophilactis function.

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