Código Penal: Protección de la libertad

• The Penal Code dedicates its articles 163 to 172 quater to the protection of liberty.
• The Constitution proclaims in its art. 1 that liberty is one of the superior values ​​of the legal system and allocates its art. 17) to recognize that "everyone has the right to freedom and security."
• The Constitutional Court has defined this fundamental right in some resolutions as the "autonomy of the individual to choose between the various vital options presented to him, according to his own interests and preferences" (STC 113/1994, Judge Cruz Villalón).

Specific Freedoms

• Recognition of general freedom materializes in the legal protection of very diverse specific freedoms that derive from it.
• Some freedoms have been recognized as fundamental rights and expressly proclaimed in the text of the Constitution: such is the case, for example, of ideological freedom (art. 16 CE) or freedom of expression (art. 20 CE).
• Others, without enjoying express constitutional recognition, are inferred from the general idea of ​​freedom itself or from its relationship with other rights.
• Some of these specific expressions of freedom enjoy specific penal protection.
• This is the case, to cite some cases, of crimes against sexual freedom (arts. 178 et seq. CP) or against freedom of conscience (art. 522 CP).
• By virtue of the principle of specialty (art. 8.1.ª CP), these more specific provisions must be applied in preference to those penal infractions that protect freedom in general.

Crimes Against Freedom

• Next, the three criminal figures contemplated in Title VI of Book II, dedicated to crimes against freedom, are exposed, following the order established by the Penal Code.
• First, the crimes of illegal detentions and kidnapping, whose purpose is to protect one of the most important aspects of the right to freedom, such as freedom of movement or movement (arts. 17.1 and 19.1 CE); and, next, the crimes of threats and coercion, which, according to the prevailing opinion, protect freedom in general and act as basic types for the protection of this legal right in all those cases that are not specifically regulated by other precepts.

Illegal Detentions and Kidnappings

• Crimes of illegal detention and kidnapping aim to protect freedom of movement or movement, which, according to common opinion, is one of the most important concretions of the right to freedom
• This importance justifies the serious penalties.
• Penal protection of this right starts from a basic figure: the crime of illegal detention provided for in art. 163.1 CP

Basic Modality

• «The individual who locks up or detains another, depriving him of his liberty, will be punished with a prison sentence of four to six years»
• The basic modality of illegal detentions is only applicable when the active subject is an individual, and the aggravated modality of art. 167 CP should be assessed in the event that the perpetrator is a public official.
• Regarding the passive subject, jurisprudence considers that this crime can be appreciated even in the case of people (young children, disabled people) who lack autonomy to determine their movements.
• Typical conduct is to lock up and detain another person.
• In addition, as a consequence of these behaviors, there must be an effect of deprivation of liberty of the passive subject.
• There are good reasons to consider that this dual regulation is redundant, since any confinement in a certain place entails a detention and, therefore, it would have been enough to foresee this second conduct understood as a limitation of movements or, simply, to establish the punishment of whoever deprives of freedom to another.
• The deprivation must be understood not only as the absolute annulment of a subject's capacity for movement, but as any sensitive restriction of said capacity.
• In this sense, it must be stated that criminally relevant deprivations of liberty do not require more specific criminal means than locking or detaining, with detentions or confinements caused both by violent or intimidating means - the most frequent in practice - as through other behaviors such as deception (for example, a subject convinces another to enter a premises and, once inside, locks it with a key preventing him from leaving).
• In any case, it is a crime of permanent consummation, which is perfected when the passive subject loses his freedom but which does not end until said deprivation comes to an end.

The Problem with Basic Illegal Detentions

• The most complex problem posed by the basic type of illegal detention is its delimitation with respect to the figure of coercion (cfr. infra IV).
• This difficulty is explained, to a large extent, by the severe minimum sentence of four years imprisonment provided for in art. 163.1 CP, a punishment that seems excessive in those cases in which deprivations of liberty of short duration are judged.
• This leads tribunals to postulate restrictive interpretations of art. 163.1 CP.
• The criteria that jurisprudence usually uses most often to resolve this question are, on the one hand, the length of the detention and, on the other, the purposes of the active subject , also assessing whether the criminal means used have completely annulled (illegal detentions), or only reduced (coercion), the freedom of movement of the victim
• However, jurisprudence itself does not usually clarify which of the cited criteria should be decisive in the event of conflict, despite the fact that opting for one or the other in a specific case can lead to different results, which introduces an important degree of arbitrariness in the final decision.

Concurrent Crimes

• Possible concurrences arise when, for the commission of a robbery with intimidation or of a sexual assault, the victim is deprived for a time of his freedom of movement.
• In these cases, jurisprudence indicates that the deprivation of liberty will be absorbed by the robbery or assault provided that it does not exceed the time strictly necessary to consummate these ultimate crimes
• The aforementioned STS 60/2018 distinguishes, in relation to robbery, three situations: «In the first place, when the detention is an essential and indispensable means for seizure and occurs exclusively during the time necessary for the execution of the crime, including escape from the place.
• In the second place, when the detention is prolonged beyond the execution of the robbery.
• And in the third place, when the illegal detention is not instrumentalized for the commission of the robbery.
• In the first case, the crime of robbery absorbs the deprivation of liberty, which is inseparable from the same, since it is understood that the intimidation or violence inherent in the robbery necessarily implies the deprivation of the victim's freedom of movement during execution, and should be resolved as an apparent concurrence of rules with the application of article 8.3 of the Penal Code.
• In the second, it is a real concurrence of a medial nature, when the deprivation of liberty appears as a necessary means for the commission of the robbery, although due to its characteristics it presents its own autonomy, beyond the deprivation of freedom inherent in the same act of seizure.
• In the third case, when appearing unrelated but independent of the act of robbery, the detention maintains its own substance giving rise to a real concurrence of crimes.
• In cases of coercive determination of another person to exercise prostitution, jurisprudence understands that the limitations of movements that do not imply detention or confinement are absorbed by the specific crime of art. 187 CP)

Punishment for Illegal Detention

• In the crime of illegal detention -in all its variants- the Penal Code not only punishes the consummation and the attempt of the crime but also the provocation, the proposal and the conspiracy (art. 168 CP).
• Likewise, both the crime of illegal detention and all the aggravated subtypes that are analyzed in the following section are intentional crimes, the reckless commission of which is not punishable.
• Jurisprudence has rejected the application of the continued crime and considers that in case of plurality of victims there are as many crimes as there are people deprived of liberty.

Aggravated Subtypes

• The Penal Code foresees various cases in which the penalty is aggravated for the basic form of detention.
• This is the case when the deprivation of liberty extends beyond fifteen days (art. 163.3 CP), when the active subject executes the act with simulation of authority or public function, when the victim is a minor, the perpetrator is public official and when the victim is a person with disability.
• Another aggravated type is the one that punishes the one who does not provide information on the whereabouts of the detained person.
• This precept is intended to repress the behaviors called forced disappearance of people that can be punished with penalties that reach twenty years in prison in cases of kidnapping.
• The severity of these sanctions has led part of the doctrine to be very critical of this precept, considering that the active subject is punished based on a suspicion of murder, which is incompatible with the right to the presumption of innocence.
• However, the Supreme Court justified the seriousness of the penalties provided for this crime.
• The penalties for this fourth criminal modality are further aggravated, and may reach up to twenty-five years in prison in the case of kidnapping, when the victim is a minor or a person with a disability or when the subject acts «with the intention of attacking the victim's freedom or sexual indemnity, or had acted later with that purpose».
• Among the aggravated forms of illegal detention, the figure of kidnapping can also be cited (art. 164 CP), which is a detention qualified by the fact that the active subject demands some condition to release the victim.
• Such a condition does not have to be economic, but its nature can be any other (political, for example) and can have as its recipient both the victim himself and third parties.
• To appreciate a kidnapping it is not necessary, however, that the condition is met, but its demand is enough

Extortion

• According to jurisprudence the demand can be made to the same detainee or to a third party [...], although it is generally specified in demanding an external activity unrelated to the passive subject; and that compliance with the condition must operate as a requirement for release, since as is very expressively said in the STS 376/1999, of March 11, “detaining a person to achieve an objective is not exactly identified with demanding the achievement of that objective in exchange for the release of that person”.
• This is the characteristic element of the crime of kidnapping, and the relationship of dependence between the demand and the cessation of the detention.
• According to this jurisprudence, the Second Chamber itself has denied the existence of a kidnapping when the deprivation of liberty has occurred as retaliation for a previous act.

Other Aggravated Modalities

• Another aggravated modality important in practice is that provided for in art. 167 CP, which punishes the authority or public official who, outside the cases permitted by law and without cause for crime, commits a illegal detention or kidnapping.
• For this case, the imposition of the penalties provided for each crime in its upper half is foreseen, being able to reach the higher penalty in grade, in addition to absolute disqualification for eight to twelve years.
• This precept raises problems of delimitation with the basic modality of illegal detentions (art. 163.1 CP), since it is often not easy to decide when an official or authority is acting as such and when he acts as a simple individual.
• An adequate delimitation criterion could be the use (or not) of facilities derived from the status as a civil servant to perpetrate the crime.
• This problem arises, for example, in the case resolved by STS 1120/2000: the accused, a national police officer and a civil guard, acting off duty and dressed in civilian clothes, went to the victim's home, whom they reproached for having sexually abused when he was giving a practical driving lesson to the daughter of one of the accused and girlfriend of the other.
• Then they forced him to get into a vehicle and took him to the police station, where, taking advantage of the facilities conferred on them by their status as agents of authority, they presented him to a police officer.
• In this case, the Supreme Court considered art. 167 CP correctly inapplicable, understanding that the accused officials «had not acted, in absolute, as such, nor in the exercise of their functional competence, since they did not have it in the debated case to detain, for lack of the prior complaint as a requirement of proceed-ability, nor did they act as such agents but as simple individuals to such an extent that if the mistreatment they inflicted on the detainee had been replicated by the detainee, they would never have been able to legitimately invoke their professional status because at those moments, due to their abusive and incorrect procedure, they were it in no way, but mere individuals ».

Interpretation of what the Code protects

• It is pointed out in the STS 1352/2004 that "the type of article 530 is reserved for cases of justified detention but in which the non-compliance of legal deadlines then occurs, as expressly provided for by the criminal type, or the non-observance of other requirements, such as the inability to exceed the detention of the strictly necessary time, or of the guarantees of article 520, except with regard to the information of rights whose non-compliance we have said originates the crime of article 537 and not that of 530 of the Penal Code ".
• It is argued that art. 530 should be applied when "the detention has "ab initio" a legal justification that becomes illegitimate when the guarantees established in favor of the detainee are violated", while 167 CP is applicable "when the detention is born or arises - with a simple pretext of legality - due to reasons unrelated to the service and public interest, for exclusively private motivations ".

Mitigation

• The present aggravation shall also apply to the public official or authority who, whether or not there is just cause for crime, agrees, practices or prolongs the deprivation of liberty of anyone and who does not recognize said deprivation of Liberty or, in any other way, hide the situation or whereabouts of that person, depriving them of their constitutional and legal rights ". and also to "the individual who had carried out the acts with the authorization, support or acquiescence of the State or its authorities."
• The jurisprudence has applied the figure of mediate authorship in the case of police officers who, by means of drafting false reports, managed to have a judge agree to the pre trial detention of an investigated:

Subtypes of Reduction

• The penalty for the crime of illegal detention is reduced in two cases.
• In the first place, when the active subject returns freedom to the detained person within the first three days of detention, provided that he has not reached the objective he had proposed (art. 163.2 CP).
• The application of this mitigation requires that it be the active subject who gives freedom to the victim, not being therefore applicable in those cases in which it is the passive subject who manages to recover freedom by his own means.
• The Supreme Court argues that, "when the situation of deprivation of liberty is interrupted as a consequence of actions by third parties unrelated to the author's own decision, whether by the action of police officers, whether by the detainee himself or other individuals, the privileged subtype of article 163.2 is not applicable, since for this the will of the author of the crime in that sense is necessary, and such will cannot be presumed in any case ".
• However, some sentences admit the application of the mitigation when, despite the victim having been released with the help of third parties, there are doubts about the fact that the author's will had been to prolong the detention beyond the legal term.
• The victim is left in a situation in which, "with a little effort on his part, he is in a position to recover his freedom", but not when the author's left the victims tied up:

Mitigation in Law

• A second attenuated modality -provided for in art. 163.4 CP- is reserved for those situations in which an individual, outside the cases permitted by law, apprehends another person to immediately present him to the authority.
• The concurrence of such a purpose is taken into account by the Code for the benefit of the active subject, who can only be imposed a fine) This slight punishment is surely explained because with this precept it is not intended so much to punish a more or less unlawful deprivation of liberty as to prevent individuals from trying to "take justice into their own hands", without resorting legal means provided for the practice of detentions.
• An individual can legitimately arrest another in various cases provided for in art. 490 LECrim, among which are the cases of the flagrante delicto or the escaped prisoner. However, as general rule, an individual cannot arrest another person when this has already finalized the execution of the crime, but in such case must denounce it to the authorities (art. 264 LECrim).
• When outside of these legal assumptions an individual arrests another with the purpose of delivering him immediately to the authority commits the mitigated illegal detention of art. 163.4 CP (for example, a subject discovers that his neighbor committed damage in the building where he lived the previous week and after apprehending him takes him by force to a police station). The Second Chamber of the Supreme Court (in Agreement of the Plenary of January 27, 2009) has interpreted that this attenuated modality is also applicable in the case provided for in art. 167 CP, that is, when The author of the detention is authority or public official.

The Crime of Threats (Arts. 169-171 Cp)

• Threatening another person is to announce the suffering of an evil.
• If the effective causation of said suffering is subject to the performance of a certain action or omission, it is said of conditional threats
• In those cases in which the announcement of evil is not accompanied by any condition, it is said of non-conditional threats
• In relation to the affectation of the legal right specific to this crime, doctrine usually understands that conditional threats affect the freedom of the subject in its internal phase, that is, the freedom to choose without impediments or external pressures which conduct it is desired to perform.
• On the contrary, in the case of non-conditional threats a part of the doctrine considers that the affected legal right is not so much freedom as the security or tranquility of the victim
• The typical conduct, consisting of the announcement of an evil on the part of the author to the victim, can be carried out in various ways and a explicit verbalization of said announcement is not necessary, provided that this can be tacitly deduced from conduct of the subject
• Contextualizing needs putting of manifest by Second Room in STS 609/2014 in which states that.
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• The jurisprudence includes the assumptions of intimidation with a evil of immediate causation in the concept «violence» of the crime of coercion.
• That the evil whose causation is announced to the victim must have future character.
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Análisis de los artículos 163 a 172 quater del Código Penal dedicados a la protección de la libertad. Se examina la libertad como valor superior del ordenamiento jurídico según la Constitución y su reconocimiento por el Tribunal Constitucional.