Rethinking the Criminal Legitimacy of Smuggling of Migrants in the Constitutional State of Rights

Abstract

This article analyzes the crime of smuggling of migrants in the Código Orgánico Integral Penal (COIP), and identifies the existence of a legitimacy problem, which is the lack of determination of the “legal good”. This indeterminacy has led doctrine and jurisprudence to issue their own considerations on the “legal good”, coming to recognize the sovereignty and migratory regulation of the State as the center of focus of criminal protection. This article questions this rationale and proposes to restructure the penal protection towards the rights of individuals using the figure of abstract endangerment as a legitimizing response. This work is carried out with an inductive and hermeneutic methodology.