Delitos contra la libertad

Delitos contra la libertad

• The Criminal Code dedicates arts. 163 to 172 quater to the protection of freedom.
• The Constitution proclaims in its art. 1 that freedom is one of the superior values of the legal system and dedicates its art. 17 to recognize that "everyone has the right to freedom and security."

La protección penal de la libertad: Introducción

• The Constitutional Court has defined this fundamental right in some resolutions as the "autonomy of the individual to choose between the various life options that are presented to them, according to their own interests and preferences".
• This general recognition of freedom materializes in the legal protection of very diverse specific freedoms that derive from it.
• Some of these 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 criminal protection.
• Such is the case, to cite some cases, of crimes against sexual freedom (arts. 178 ff. 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 criminal infractions that protect freedom in general, which are some of those analyzed in this Theme.

Las detenciones ilegales y los secuestros

• Crimes of illegal detention and kidnapping: Its 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).
• 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.

Modalidad básica

• 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.
• The penal protection of this right starts from a basic figure: the crime of illegal detention provided for in art. 163.1 CP.
• According to this statement, the basic modality of illegal detentions is only applicable when the active subject is an individual, and the aggravated modality of art. 167 CP must be assessed in the event that the author is a public official.
• Regarding the passive subject, jurisprudence considers that this crime can be appreciated even in the case of people who lack autonomy to determine their movements.

Modalidad básica: Conductas típicas

• The typical conducts provided for are two: enclosing and detaining another person.
• As a consequence of these behaviors, an effect of deprivation of liberty of the passive subject must occur.
• In this last sense, it must be signified that the deprivations of freedom that are criminally relevant do not require more specific commissive means than enclosing or detaining, being typical the detentions or confinements caused both by violent or intimidating means and through other behaviors such as deception.

Modalidad básica: Consumación

• It is in any case a crime of permanent consummation, which is perfected when the passive subject loses his freedom but does not end until such deprivation comes to an end.
• In practice, the most complex problem posed by the basic type of illegal detentions is its delimitation with respect to the figure of coercion.
• Such difficulty is explained, to a large extent, by the severe minimum penalty of four years of 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 to the fact that in these cases the courts often postulate restrictive interpretations of art. 163.1 CP.
• This restrictive will is warned in the STS 167/2007, which understands that only coercion concurs in the case of a subject who, after brandishing a knife, tied another with the cable of the charger of a mobile phone, managing the victim to free himself from the ties "when no more than five minutes had elapsed".

Modalidad básica: Criterios

• The criteria that jurisprudence usually employs most often to resolve this question are, on the one hand, the time of detention and, on the other, the purposes of the active subject, also valuing whether the commissive means employed have completely annulled (illegal detentions), or only reduced (coercion), the freedom of movement of the victim.
• 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 ambulatory freedom.
• In these cases, jurisprudence indicates that the deprivation of liberty will be absorbed by the robbery or assault as long as it does not exceed the time strictly necessary to consummate these latter crimes.

Subtipos agraviados

• The Criminal Code foresees diverse assumptions in which the penalty established for the basic modality of detentions is aggravated.
• This is the case when the deprivation of liberty lasts 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, person with disability or public official in the exercise of his functions (art. 165 CP).
• A fourth aggravated modality -and especially controversial- of illegal detentions is foreseen in art. 166 CP, which punishes the perpetrator of illegal detention or kidnapping who does not give reason for the whereabouts of the detained person.
• This precept is intended to repress the so-called enforced disappearance of persons, which can be punished with penalties reaching twenty years of imprisonment in cases of kidnapping.
• The severity of these sanctions has led a part of the doctrine to be very critical with this precept, considering that in it the active subject is punished based on a suspicion of murder that is incompatible with the right to the presumption of innocence (art. 24 CE).

Subtipos agraviados: Secuestro

• The penalties of this fourth criminal modality are aggravated even more, being able to reach up to twenty-five years of imprisonment in the case of kidnapping, when the victim is a minor or person with disability or when the subject acts "with the intention of attacking the liberty or sexual indemnity of the victim, or had subsequently acted with that purpose."
• Among the aggravated modalities of illegal detentions, it is also worth mentioning the figure of kidnapping (art. 164 CP), which is a detention qualified by the fact that the active subject demands some condition to release the victim.
• When the fact publicly ignored consists in the commission of a crime on the part of the victim of the blackmail.

Subtipos agraviados: Autoridad

• Another aggravated modality important in practice is that foreseen in art. 167 CP, which punishes the authority or public official who, outside the cases permitted by law and without cause of crime, commits a detention.
• For this case, the imposition of the penalties foreseen for each crime is foreseen in its upper half, being able to reach the higher penalty in degree, in addition to absolute disqualification from 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 a public 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 of public official to perpetrate the crime.

Amenazas

• According to a widespread definition, threatening another person is to announce the suffering of a damage.
• If the effective causation of such suffering is subject to the realization of a certain action or omission, it is said of conditional threats (for example, the active subject tells the victim that, if he does not deliver one hundred thousand euros (condition), he will kill his entire family (damage).
• In those cases in which the announcement of the damage is not accompanied by any condition, it is said of unconditional threats.
• In relation to the affectation to the legal right proper to this crime, the doctrine usually understands that conditional threats affect the freedom of the subject in its internal phase, that is, to the freedom to choose without obstacles or external pressures what conduct that subject must carry out.
• On the contrary, in the case of unconditional threats, a part of the doctrine considers that the legal right affected is not so much freedom as the security or tranquility of the victim (in the opposite sense, in contrast, DÍEZ RIPOLLÉS, among others).

Amenazas: Conducta típica

• The typical conduct, consisting in the announcement of a damage on the part of the author to the victim, can be carried out in diverse manners and an explicit verbalization of such announcement is not necessary, as long as this can be deduced tacitly from the conduct of the subject.
• The need to contextualize is put of manifest by the Second Chamber in the STS 609/2014, in which it affirmed that "the meaning of the expressions can only be captured contextually. It does not deal with analyzing them isolatedly, as in a linguistic laboratory, but calibrating how that one of interpreting them of the person to which they were directed."
• Given that, such as it will be exposed, the dominant jurisprudence includes the assumptions of intimidation with a damage of immediate causation in the concept "violence" of the crime of coercions, judges and courts interpret that in the threats the that damage whose causation is announced to the victim must have future character.
• Likewise, the jurisprudence usually demands, in order to appreciate this crime, that the damage with that which the victim is conminated is "unjust, determined, possible, dependent of the will of the active subject and susceptible of producing intimidation in the threatened subject".
• With these demands the announcement in the article of those damages whose causation does not depend of such subject.

Amenazas

• According to the Supreme Tribunal, the appreciation of the threats does not depend on that with the conmination of the damage the subject achieves effectively intimidating to the victim.
• Habitually it has been demanded that the threat be credible in order to give place to crime .
• On the contrary it is not considered constitutive of crime the threats with the causation of a damage that supposes a wanted or amparada consequence by the Right.
• The present crime is consummated "with the arrival of the announcement to its destination, even without need of that there be occasioned the intranquility, worry or animic perturbation that the author persecutes, of manner that is sufficient with that the utilized expressions, acts or gestures be apt to intimidate to the víctim.
• Likewise, all of the modalities of relevant threats penally require the existence of deceit.

Delictivas modalidades

• The Criminal Code punishes in its art. 169, such as modality of more gravely sanctioned threats, the consistent conduct in threaten to another "with occasioning to él, to his family or to other persons with which is intimately linked a damage that constitutes crimes of homicide, lesions, abortion, against the liberty, tortures and against the moral integrity, sexual liberty, the intimacy, the honour, the patrimony and the socioeconomic order".
• La Sala Segunda justifies la agravación de las amenazas hechas por escrito afir-mando que en ellas se aprecia «una mayor reflexión en la conminación del mal que se anuncia» (STS 1391/2000, ponente Sánchez Melgar).
• El art. 170 CP prevé un subtipo agravado para los casos en que «las ame-nazas de un mal que constituyere delito fuesen dirigidas a atemorizar a los habitantes de una población, grupo étnico, cultural o religioso, o colectivo so-cial o profesional, o a cualquier otro grupo de personas, y tuvieran la gravedad necesaria para conseguirlo".

Delictivas modalidades: Vigente regulación

• The current legal regulation distinguishes between threats of a damage constitutive of the mentioned crimes and of a non-constitutive damage of some crime- seems to have forgotten the possibility of that the victim be threatened with the causation of a damage that being delictive, is not comprised by the relation of infractions contained in art. 169 CP.
• En el art. 171 CP castiga la conducta consistente en la amenaza de un mal que no constituya delito con pena de prisión de tres meses.
• When the fact publicly ignored consists in the commission of a crime on the part of the victim of the blackmail.
• De acuerdo con la STS 1265/2005 , la gravedad o levedad de la amenaza se valorar en función de las personas intervinientes.

Coacciones: Modalidad básica

• The crime of coercions is found regulated in its basic modality in the first paragraph of art. 172.1 CP, whose literal meaning is the following:
• The article states "That, without being legitimately authorized, imped another with violence to do what the law does not prohibit, or impel him to effect what he does not want, be it just or unjust, will be punished with the penalty from six months to three years or with fine from 12 to 24 months, according the gravity of the coercion or of the employed means.”
• La libertad has been viewed as that the right of any person to ejecute externally the previously taken decisions.

Coacciones: Protección

• El derecho a la libertad se ve lesionado cuando una persona impide a otra poner en práctico a ejecutar una conducta.
• When the person commits a crime, impeding his actions or obligating a person to act against their own best interests.
• El Código Penal exige el uso de la violencia.
• The impediment conduct is tipica when its objetive is to avoid la Conducta de persona Cuando el que recurre a la violencia es el titular.
• En lo que al medio Comisirespecto en el uso de fuerza. Sin embargo, con el pasó interpretó de fanta espiritutizada including in the medio es la causa acción de un medio a impedir.
• En la jurisprudencia han declarado retiradamente se ha declarado que la jurisprudencia del. Coacción puede En tiempos Reciente. Prescindir totalmente del Requitos de la violence

Coacciones: Análisis actual

• La analogía sustrita dudas que la analía beneficia la situación que fue sometida a el. El Tribunal decidió que la persona tenía la culpa de los daños realizados.
• The actions required can be the most obvious and can be shown even on documents.
• The code should be observed due to the risk to subject to any coercion.
• This second paragraph of the Spanish Civil law contains the possibility of the crime of coacciones is observed or the lack of evidence. When the act is shown it means in fact the use of the article.

Subtipos Agravados

• El segundo puede hacer más grave
• Se puede añadir a cuando la ejecución de un derecho fundamental.
• La misma norma indica a cuando el edificio se encuentra cerca a una persona por la. Los puntos se puede tomar con violencia a otra persona. Las personas han perdido una coacción de carácter grave siempre que existe denuncia de la víctima.

Las modalidades coactivas

El Código Penal.

• There are sentences from six months to three years.

Arts. 163 a 172 quater del Código Penal protegen la libertad, valor superior según la Constitución (art. 1). El art. 17 reconoce el derecho a la libertad y seguridad. El Tribunal Constitucional define la libertad como la autonomía individual para elegir opciones de vida.