La construcción del contexto en el derecho penal y procesal penal colombiano

In nearly every country, governments have limited private production of alcohol and made it a product that is either supervised by government or produced and distributed by government (Holder and Edwards 1995, 2). Governments have tended to do this through special

considerations (WHO 2004b, 15). The WHO defined alcohol control policies as measures by governments to control supply and demand, minimise alcohol related harm and promote public health (WHO 2004a). Alcohol policies aim to strike a balance between public health and individual freedom that achieves the maximum health and social gains while not

inconveniencing individuals too much (Bruun et al 1975, 69). Alcohol has also been a significant source of government revenue (Room et al 2002, 69; WHO 2004b, 41). This provided an incentive to regulate not just on the basis of public health or public order but to maximise revenue and expand the capacity of the state (Schrad 2005, 207; 2007, 442). The reason that governments have regulated alcohol is because of the negative impacts on the individual and society (McGowan 1997, 3), but intervention has also increased state

capacities and bureaucratic power (Eisenback-Stangl in Muller and Klingemann 2004, 62). Governments have treated the three beverage categories in different ways. In the early United States, beer production and consumption was actively encouraged by government, while spirits were condemned with a correspondingly harsh position taken (McGowan 1997, 37). Spirits being considered socially undesirable had a heavy influence on excise and tariff rates, and meant that spirits were generally taxed at a higher rate per unit of alcohol (Musto in Plant, Single and Stockwell 1997, 16; Room 2004, 335).

Regulation goes back nearly as far as alcoholic beverages themselves. The control of

production, distribution, and consumption was exercised by the first governments in Ancient Greece, Mesopotamia, Egypt, and Rome (Babor et al 2003, 4). Possibly the first recorded alcohol policy was in the 1800BC Babylon Code of Hammurabi, which controlled places where alcohol was consumed or sold, with the aim of governing the behavior of tavern keepers and customers (Room 2004, 331). In England, the 1215 Magna Carta codified the standardisation of ale and wine products (Schrad 2007, 437). King Henry VIII introduced the first alcohol licences in 1496, and a licence was required of all sellers from 1552. This system lasted throughout English history and was exported to the new colonies, including Australia and New Zealand (Room 2004, 332). Limitations on the days and places of sale were introduced under the reign of Queen Elizabeth I in the late sixteenth century (Schrad 2007, 437). In the early eighteenth century public concerns about the impacts of gin on the poorer classes led to the Gin Act of 1729 that placed a higher level of taxation on gin (Schrad 2007, 437; Musto in Plant, Single and Stockwell 1997, 16). This legislation was a cause of riots in London and was subsequently repealed (Schrad 2007, 437).

Debate about alcohol controls peaked in developed countries in the late 19th and early 20th century, when religious evangelicals and temperance campaigners sought to bring the alcohol question to front and centre in public debate (Schrad 2007, 432). Greenaway argued that up until the late nineteenth century the debate was a clash of two competing paradigms: the traditionalist which saw no capacity for the state to intervene, and temperance that sought prohibition because they saw alcohol as a demonic force. By the 1890s a new middle-ground restrictionist position had developed that gave the state a duty to impose restrictions to reduce social problems, so long as they were not in advance of public opinion (Greenaway 1998, 907). The restrictionist position was heavily linked with the Gothenburg system, which incorporated local municipal control of the alcohol trade (Schrad 2007, 445). Both ends of the political spectrum had a strong interest in alcohol control policies during the early twentieth century, from the Fabian society and the socialist movement through to the fascist regimes of Mussolini and the Third Reich (Room 2004, 332). After World War Two the debate over policy prescriptions took a different tack as science and health replaced religion and moral judgments (Musto in Plant, Single and Stockwell 1997, 22).

In the modern era there are numerous approaches to the regulation of alcohol. Godfrey and Maynard classified the policy choices into three groups: population based policies such as taxation, advertising and availability controls; problem directed policies such as drink-driving countermeasures; and direct interventions such as treatment (Godfrey and Maynard in Holder and Edwards 1995, 241; WHO 2004b, 2). Throughout the world there are a diversity of alcohol control measures at the population, group and individual level. Even prior to the public health discourse, Bruun noted that most policies tended to focus on the population rather than individuals (Bruun et al 1975, 67). Short of prohibition, there are no examples of governments attempting to control alcohol through policies that only relate to the population (Stockwell et al 1997, 4). There is evidence that a combination of policies can make

contributions towards reducing mortality and morbidity (Babor in Holder and Edwards 1995, 185; Loxley et al 2005, 565).

In terms of the level of state intervention, there are three broad approaches: full control (state monopoly), partial control (licensing system), or no control. A state monopoly generally means that government is the only entity able to sell alcohol for consumption off the premises, with a licence required for consumption on the premises. State monopolies have flourished in the Nordic countries and parts of North America and Eastern Europe (WHO

2004b, 16). The most common approach is a licensing system, which is employed in 73% of countries (ICAP 2006, 12; WHO 2004b, 17). Under a licensing system, anyone that wants to sell or produce alcoholic beverages has to apply for and be granted a licence by the

government (WHO 2004b, 16).

Alcohol policy is diverse with no two jurisdictions having exactly the same system. The WHO highlighted how different they are across nations, even those with cultural and historical similarities (WHO 2004b, 79-196). Crombie et al analysed policies in 12 developed countries and argued that while some interventions had similarities across countries, other policies such as taxation, the drinking environment and approaches to high risk groups showed significant variation. The main finding was the surprising level of diversity across the countries compared (Crombie et al 2007, 496). This highlighted the impact of domestic institutions. Holder and Edwards argued that countries with a strong tradition of government control of alcohol production and sale also used policy to restrict access. But countries that had made alcohol cheap and widely available tended to focus on treatment and education (Holder and Edwards 1995, 4). The only states where alcohol was virtually unregulated were weak states where government lacked the capacity to adequately control it (Schrad 2005, 206).

There are a number of different policy tools available to governments to control alcohol. Loxley et al argued for the following categories: pricing and taxation; regulating alcohol availability; drink driving countermeasures; regulating marketing and promotion; education and information strategies; and treatment and early intervention (Loxley et al 2005, 560).

Taxation

Taxation is levied by governments through a specific excise on alcohol, usually in addition to other commodity based taxes. It is common for alcoholic beverages to be taxed at a different rate depending on the type of beverage, with spirits generally taxed at a higher rate than beer or wine (Babor et al 2003, 105). The WHO found that: a majority of countries taxed spirits at more than 30% of the retail price; a majority of countries taxed beer at between 10% and 29% of the retail price; and wine was taxed at a lower rate than beer but with a very wide variation across countries. In some European countries wine is not taxed at all (WHO 2004b, 52-3). Governments have the dilemma of not setting the tax rate at such a level to create

incentives for an unregulated market to emerge (Room et al 2002, 203). Government reliance on tax on alcoholic beverages varies markedly. In Europe, the average is 2.4% of tax

revenue, but this is as high as 10% in Estonia (Room and Jernigan 2000, 528). In most developed countries the relative importance of alcohol taxation declined during the twentieth century, primarily due to the emergence of other taxes (Babor et al 2003, 102; Room and Jernigan 2000, 528).

It is well accepted in most societies that alcohol should be taxed above the level of other commodities (Cook 2007, 165). Alcohol’s contribution to public disorder, addictive

qualities, and association with immorality has led to it being singled out for special treatment (Pennock and Kerr 2005, 396). Similarly, taxation is also used to signal the external costs that consumers of alcohol impose (Clarke 2008, 38). Public health advocates argue that the detrimental impact of alcohol is a justification for taxation (Bruun et al 1975, 67; Edwards et al 1994, 109). Although the level of taxation is a factor in the final price, there are countries with comparatively high rates of tax that have comparatively low price levels including: Finland, Iceland, and Ireland (WHO 2004b, 55). However, the research consensus is that raising taxes on alcoholic beverages will lead to a reduction in both overall consumption and a range of undesirable outcomes (Babor et al 2003, 112). As a policy tool, taxation is readily available and effective from a public health and economic viewpoint (Chisholm et al 2004, 790). The WHO concluded that increased taxation should be high on the priority list of possible measures because it is: effective, cost effective, easy to implement, and government revenue positive (WHO 2004b, 57).

The research confirms that an increase in taxation leads to an increase in the price and reduced alcohol consumption. This leads to a reduction in the adverse consequences of heavy drinking (Chaloupka et al 2002, 32; WHO 2004b, 57). In terms of cost effectiveness, taxation has the greatest impact with the fewest government resources to implement

(Chisholm et al 2004, 791; 2006, 563). However, taxation can have negative impacts. In developing countries where unrecorded consumption is over 50%, Chisholm et al argued that tax increases may have a regressive impact and lead to an increase in unrecorded

consumption (Chisholm et al 2004, 784). The WHO argued for a level which is high enough to reduce consumption and harm while not being so high that it increases illegal production (WHO 2004b, 57).

Availability controls

Availability controls refer to regulations on obtaining alcoholic beverages including when, where and to whom they can be sold and served (WHO 2004b, 15). These controls range from prohibition through to less severe restrictions that increase the opportunity cost of purchasing alcoholic beverages. They include: prohibition, rationing, minimum age

restrictions, government monopolies, licensing systems, regulations pertaining to on-premise or off-premise drinking environments, restrictions on areas and times where people consume alcohol, restrictions on the seller and server of alcohol, restrictions on hours and days of sale, restrictions on the location of outlets, and restrictions on the number of outlets. Total

prohibition is not politically acceptable in most modern developed countries (Babor et al 2003, 119). Similarly, prohibition policies are difficult to sustain as illicit markets quickly establish themselves (Room et al 2002, 198). The only examples of country wide prohibition in the modern era are in Islamic countries (Babor et al 2003, 118). Most prohibitions are localised in isolated areas where entry to the dry area can be controlled (Babor et al 2003, 118; Room et al 2002, 196). While total prohibition is rare, partial prohibition is very

common in relation to children and adolescents. This makes it illegal for young people below a certain age to be sold alcohol. The minimum legal drinking age (MLDA) ranges from 15 to 21 throughout the world, with the age of 17 or 18 the most common (WHO 2004b, 30-1). There is sometimes variability in the MLDA for each beverage type and for on premise and off premise sales (Room et al 2002, 202). An MLDA of 16 or less is a European

phenomenon in wine producing countries (WHO 2004b, 35). Another availability control is for the government to exercise monopoly control, something that has been used in states and provinces of North America and the countries of Scandinavia. A government monopoly controls pricing, outlets and marketing, thereby controlling some or all of the alcohol supply chain (Edwards et al 1994, 132; Babor et al 2003, 105). Government monopolies are most often in respect of off-premise sales, with on-premise the subject of a licensing system. These controls reduce the number of outlets, limit hours of sale and remove the private profit motive (Room et al 2002, 193).

A common availability control is a licensing system that requires anyone involved in the supply chain to be licensed by the government. If the licensing system can suspend or revoke licences in the case of infractions, then it can be effective for reducing alcohol related

beverages, as there is a strong concern about keeping criminal elements out of the trade (Babor et al 2003, 128). Outlets where alcohol is consumed on the premise, such as pubs, bars, and restaurants have a long history of regulation due to the capacity for governments to regulate both the purchase and consumption (Babor et al 2003, 120-1). The regulation of off- premise outlets is increasingly an area of interest due to the increasing proportion of alcohol consumed in this way (Babor et al 2003, 124). It is also common to restrict alcohol

consumption in certain environments such as workplaces, parks and events. Drinking environment restrictions date back to the temperance movement and provide alternatives to drinking in work and leisure pursuits (Babor et al 2003, 130). Restricting drinking in these environments is designed to send a message that alcohol is a special commodity that does not mix with certain activities (WHO 2004b, 70-1).

Another availability control is to restrict the hours and days of sale, the locations and types of alcohol outlets, or the density of outlets. The most common restrictions relate to the place of sale (around 60% of countries), hours of sale (45%) and days of sale (26%), with outlet density restrictions the least common (around 20%). In jurisdictions that apply it, density is controlled by allowing a certain number of outlets for a certain number of inhabitants within a specified area (WHO 2004b, 24). The WHO concluded that controlling the density and location of outlets has a significant impact on sales by increasing the opportunity cost, but Babor et al argued that controlling density has not been demonstrated to affect rates of alcohol problems (WHO 2004b, 30; Babor et al 2003, 122-4).

Availability controls are part of alcohol policy in nearly every country. Their long history and common use mean that they are not always regarded as tools of prevention (Bruun et al 1975, 66). Availability controls are considered an effective method of reducing alcohol related harm but require popular support and enforcement (Babor et al 2003, 133; WHO 2004b, 30). Edwards et al argued that their effectiveness has been confirmed across many countries and is therefore generalisable and not culturally unique (Edwards et al 1994, 143-5 & 207). Studies have concluded that changes in hours and days of sale can affect drinking patterns and alcohol related problems across time and location (Chisholm et al 2004, 284; Chikritzhs and Stockwell 2006, 1255; Room et al 2002, 205). Increased drinking is

associated with increased hours of sale and decreased drinking is associated with decreased hours of sale (Edwards et al 1994, 137). The effectiveness of other interventions, including the MLDA, varies by setting. A higher MLDA has an impact on consumption and traffic

accidents; in the United States it reduced traffic fatalities by about 7% (Cook and Moore 2002, 126; Room et al 2005, 526). Prohibition delivered record low consumption and alcohol related problems in the countries where it was implemented in the twentieth century.

Effectiveness in reducing alcohol related problems was especially strong in the early years in each jurisdiction, reducing over time as alternative sources were found (Edwards et al 1994, 131).

Drink-driving countermeasures

Accidents involving drivers that have been drinking are a major problem in nearly every country where alcohol is widely consumed and motor vehicles are commonly used (Babor et al 2003, 157). A key drink-driving countermeasure has been legislation to set the blood alcohol concentration (BAC) level above which people cannot drive a vehicle. This aims to reduce the number of accidents, injuries and fatalities that occur as a result of driving when intoxicated (WHO 2004b, 35). The BAC limit varies between countries (generally between 0.02% and 0.08%) and is usually based on what is politically and socially acceptable (Stewart and Sweedler in Plant, Single and Stockwell 1997, 128). Random breath testing (RBT) of motorists accompanies BAC legislation in many countries and involves sampling motorists, generally at times of higher risk such as nights and weekends (Babor et al 2003, 158). More than one third of countries do not have a regime of RBT to support their BAC legislation (WHO 2004b, 39). The random nature of the testing, combined with high visibility, makes drivers uncertain about when or where they may be tested (Babor et al 2003, 160-1; WHO 2004b, 36). Drink-driving countermeasures also require swift, severe and certain

punishments for transgressors. The punishment that has been found to be most effective is licence suspension (Babor et al 2003, 163; Edwards et al 1994, 157).

Drink-driving countermeasures have led to a reduction in drink driving and alcohol related crashes, and are considered one of the public health success stories of the late 20th century (Babor et al 2003, 159; Room et al 2005, 526). Babor et al and the WHO argued that the elements of an effective drink-driving strategy include: a low BAC, frequent and visible enforcement, suspension of driving privileges, and certainty of punishment (Babor et al 2003, 163; WHO 2004b, 40; Loxley et al 2005, 562). Drink-driving laws have been estimated to reduce fatal crashes by 7% and enforcement through RBT can reduce them by a further 6- 10% (Chisholm et al 2004, 784; Babor in Muller and Klingemann 2004, 38).

Advertising controls

Advertising of alcoholic beverages is designed to attract and influence customers. The research in this area is contested and the impact of advertising has not been clearly proven as it has with drink-driving. Edwards et al argued that advertising has a small but contributory impact on drinking behaviour (Edwards et al 1994, 172; Babor et al 2003, 183). In many countries alcohol advertising has some level of regulation, ranging from complete and partial bans to voluntary agreements. The WHO found that advertising on television and radio was more restricted than print, and spirits are more restricted than beer (WHO 2004b, 58). Advertising restrictions in France and Norway were the most comprehensive, where both alcohol advertising and sports sponsorship were banned (Babor et al 2003, 181). Advertising restrictions have not achieved a major reduction in drinking or harm, although countries with greater advertising restrictions also have lower consumption and alcohol related problems (Babor in Muller and Klingemann 2004, 38). However, the WHO argued that advertising restrictions should form part of a comprehensive alcohol policy, especially when targeted at young people (WHO 2004b, 63).

Education and information

Most countries use education and information strategies. This is partly because they are not widely contested (Plant and Plant in Plant, Single and Stockwell 1997, 194). Education about the dangers of alcohol makes intuitive sense on public health and consumer grounds as it can send clear messages about the consequences of drinking (Casswell in Holder and Edwards 1995, 205). There is now a large industry devoted to producing school programmes, posters, pamphlets, and guidelines aimed at changing drinking behavior (Giesbrecht 2007, 1346). Some of these are high quality and backed by research but much show little professionalism (Plant and Plant in Plant, Single and Stockwell 1997, 195). Counter advertising gives

messages about the dangers of alcohol consumption with public service announcements being a common initiative (Babor et al 2003, 190). Governments also use unit labeling that informs the drinker of the number of standard drinks they are consuming. Unit labeling can be

justified on consumer grounds as a way of providing information to drinkers (Stockwell and Single in Plant, Single and Stockwell 1997, 100).

The research consistently says that education and information strategies have no impact on consumption or alcohol related problems, or at best a low short-term impact (Anderson and Baumberg 2006, 19; Babor et al 2003, 200; Babor in Muller and Klingemann 2004, 40; Plant