The crime of coercion in the Peruvian penal code
I. Preliminary notions
One of the crimes that are most frequently reported at the police and prosecutorial level is that related to unjust coercion, where the agent, using violence or threat, forces another to do what the law does not mandate, or prevents her from doing what she does not prohibit. From this premise, it can be glimpsed that the crime under study protects that part of the freedom of people, directly related to the freedom to behave and function according to their real knowledge and opinion, of the freedom to conduct themselves in accordance with the current legal system; and also not to see their sphere of development and social coexistence curtailed, by conducts or acts of third parties, which seek an unlawful purpose, which translates into forcing them to do something that the person really does not want, or also to do something,that far from being loved or not, said constriction –understand obligation-, seeks that the taxpayer or victim do something that the law does not mandate or prevents him from doing something that said norm does not prohibit or limit.
Keep in mind that the behaviors are directed and ordered, from the subject's cerebral sphere, therefore, their impulse and realization, are informed by a certain purpose and, this freedom to act, can be broken, when the individual is forced to perform a action that you do not want or refrain from carrying out a behavior that you want to materialize.
Followed point, and bringing up what was indicated by the Spanish teacher Francisco Muñoz Conde, it should be indicated that the Freedom referred to in the corresponding heading of the Penal Code, and that follows from the respective criminal types that are typified in it, they are directly related to freedom of action in a broad sense, as an attribute of a person's ability to decide what he wants or does not want to do and to move from one place to another or to locate himself in space, without that your decision is constrained or mediated by other people. Freedom thus understood is an attribute of the will, but its existence also depends on coexistence itself and on a series of conditions that it imposes on the performance of the human being.
From the previous lines, we can warn that personal freedom in its broadest sense is affected by the crime of coercion, that is, that freedom understood as the ability to self-determine, to be able to freely choose between two or more options, being that in the same sense, Saint Thomas expressed that freedom or free will is a faculty of will and reason whose proper object is the end - God, in a theological sense - and good. But the fact that human freedom is neither absolutely nor completely demonstrable, is no reason to consider that it is not a legal asset to which the legal system must give criminal protection, since its factual relativity and its non-demonstrability does not deprive it of its primary importance. for the development of human life. Of not accepting freedom,even if it is as a relativized budget, none of the relationships of social life (and even less those legally regulated) could be considered no longer legitimate, but not even rational: the ideas of getting married, voting, buying, going to court in search of justice, etc., would not be possible to understand if it were not in the light of a freedom, albeit relative, of the human species.
II. The right to freedom in our 1993 political constitution
Our National Political Charter of 1993, recommends in its article 2 subsection 24 literal “a”, ad litteram the following:
Article 2.- Everyone has the right:
24.- To liberty and personal security. In consecuense
a) No one is obliged to do what the law does not mandate, nor prevented from doing what it does not prohibit. From said article it is noted that freedom runs between what the law mandates, therefore, it forces to do- and what it prohibits - and therefore forces not to do. In principle, the only limitation for the exercise of this right is not to violate or violate the rights of other people, a parameter assumed by law based on the principle of reservation of the law and the principle of legality, which leads us to establish that the law is the only one that specifies what the person is obliged to do or in any case not to do.
The Constitutional Court in File No. 2235-2004-AA, dated February 18, 2005, has stated that on the basis of the general principle of freedom, that the human being, in principle, is free to do anything that is not prohibited by law, or required to do what the law does not mandate. In this sense, although the limitations to fundamental rights can only be established respecting the principle of legality, the interpretation of a legally imposed limitation must also be carried out in necessarily restrictive terms, the analogical interpretation, in malam partem, of the rules that restrict rights. From this understanding, the outstanding importance of the right to personal liberty must also be mentioned, and in the words of the Court itself, the full validity of the fundamental right to personal liberty is a vital element for the functioning of the Social State and Democratic Law, as it is not only a concrete manifestation of the value of freedom implicitly recognized in the Constitution,it is a necessary budget for the exercise of other fundamental rights.
Dr. Marcial Rubio Correa, you have to: in the Constitution of 1828 in its article 150º, it was regulated that: No Peruvian is obliged to do what is not required by law or prevented from doing what she does not prohibit.
This wording is repeated in article 144 of the Constitution of 1834 and in 176 of the Constitution of 1839. Varying slightly in the Constitution of 1860, where in its article 14 it expressed to us that "nobody is obliged to do what he does not command neither the law nor prevented from doing what she does not prohibit ”. This text is repeated in Article 13 of the 1867 Constitution and in Article 19 of the 1920 Constitution.
In the 1933 Constitution –article 24º- the version is the one we have now: No one is obliged to do what the law does not mandate nor prevented from doing what it does not prohibit ”. The concordant article of the 1979 Constitution is as follows:
"Article 2: Everyone has the right: 20.- To personal liberty and security.
Consequently: a) No one is obliged to do what the law does not mandate or prevented from doing what it does not prohibit (…) ”
As can be seen from said historical-normative discourse, the constitutional precept addressed has been understood in the different Constitutions that our Republic has had, however, the one that maintains the same harmony in its drafting with our current Political Charter, is 1979, as already seen.
A separate point, but connected with our subject, is related to the pronouncements given by the Supreme Interpreter of the Constitution, regarding Personal Liberty, pointing out that this is not only a recognized fundamental right, but a superior value of the legal system, and that its exercise is not absolute and unlimited; because it is regulated and can be restricted by law. Therefore, the limits to the rights can be imposed by the same norm that recognizes the right; for the exercise of one or more constitutional rights, or for the exercise of one or more constitutional legal rights.
III. What is meant by the term coercion?
First of all, we must specify what the Dictionary of the Royal Academy of the Spanish Language defines as coercion, pointing out that it is the force or violence that is done to someone to force them to say or execute something. This notion is confirmed by the monumental work of Dr. Guillermo Cabanellas De Las Cuevas, who expresses that coercion is the force or violence that is done to a person to force him to say or do something, this being the scope of a punishable coercion, because it overwhelms the freedom of others. Coercion is then understood, in its daily meaning and that of its meaning as a Spanish term, as that action carried out by a person with the aim of forcing another to do or stop doing something. Although this definition refers to the behavior of coercion,seeks the limitation or performance of a certain act or event by a person, which leads to that in its legal sense, most Penal Codes, define coercion as that limitation on the personal freedom of individuals, using to such unlawful act of violence (vis absolute), or threat (vis compulsive), in order for the taxpayer to do or stop doing something, obviously, that the direction of the behavior of the taxpayer is in the hands of the subject agent, who, by the described commissioning means, influences and arranges what the passive or wronged person does or does not do. A definition, although clear, but incomplete for this type of criminal offense, is that provided by the Spanish Penal Code, which refers us to this illegal one,which is that action carried out by a person who, without being legitimized, violently prevents another from doing what the Law does not prohibit, or compels them to do what they do not want, whether fair or unfair. In this Hispanic regulation, the crime of coercion does not present in its typification the commissioning means of threat, because in such a punitive body, threats are independently regulated, however, Spanish jurisprudence is unanimous in considering - adopting a thesis extensive-, that personal intimidation and even the use of force in things, configure the crime of coercion, which makes such inclusion via jurisprudence, creates impossibilities in distinguishing whether one is facing coercion or a threat; subject that not being the object of our study, we postpone its analysis for another opportunity.
IV. The protected legal asset
Regarding the legal asset protected in the crime of coercion, the doctrine has presented non-peaceful agreements at the time of establishing what would be the legal asset that the rule intends to safeguard, however, three doctrinal criteria have been established that seek to serve as paths at the time of establish the field of protection of the punitive norm, being:
- Freedom and security: in this sense, the crime would affect, first of all, the security of the individual, and on the other hand, as such concern and anxiety, force the individual to a series of precautions, thereby constraining their freedom. Freedom: insofar as what is directly intended is to disturb the mood through fear, regardless of the more or less remote objectives to which this purpose leads, such fear restricts freedom and even, to Sometimes, it cancels it, regardless of whether or not the pursued purpose is achieved. Freedom of resolution and / or action: because this crime is placed on the taxpayer or threatened before the choice to make a certain resolution of will and carry it out, or to suffer an evil, this presupposes in the victim the capacity of free formation of his will and,consequently, freedom of action.
From this illustrative scheme, it is noted that the legal asset protected by the criminal type of coercion is configured by the freedom of resolution and / or action, given that with this crime the threatened subject is placed before the choice of taking a certain resolution of will and carry it out, or suffer an evil, which presupposes in the victim the ability to freely form their will, and consequently freedom of action.
Abundant in this regard, and following Professor Polaino Navarrete, what is sought to protect through the crime of coercion, is the right to self-determination that every citizen has, their personal freedom "referred to the formation of human will without the alien constraints coming of the announcement of the accusation of a wrong constituting a crime or not. "
And that in the case of a plural protection of property, it should be added –affirms the aforementioned author-, to that of personal freedom from the formation of the will, that of personal security as a right to the legal expectation that the legal parameter provokes as knowledge what to expect from people.
From the foregoing, it is noted that the legal asset protected in the crime of coercion is directly related to personal freedom, understood as that enjoyed by all people to carry out their actions that they consider pertinent, without further limitations, than those advocated by the legal system, proscribing any interference with the protected sphere of the freedom of each individual. Specifying that what is covered by the law in this illicit, is "the autonomy of volitions and actions", extending protection from freedom to determine to do or not to do, to the freedom to act according to that determination, also being that through threats freedom is attacked by creating a state that influences the determinations of the subject,annulling that determination or the concrete manifestations of it, being that in coercion, illegality consists in the illegitimate prevalence of the will of others over one's own, which can be eliminated both in its stage of formation and in its execution.
Sergio Politoff, Jean Pierre Mattus and María Cecilia Ramírez, express that the protected legal asset is the freedom to act, to act and the security of exercising said freedom in the opportunity and direction that is freely decided.The limit in the decision about the direction or opportunity of the exercise of the freedom of a person is in not harming his fellow man, thus the limit to this freedom is in the right of the other19. Therefore, what is protected in coercion is limited to the freedom of formation of the will, that is, the freedom to choose and value the stimuli, conditioning, motives and counter-motives that arise in the process in which the will is formed for the taking of a decision, affirming then that in the unjust of coercion, the freedom of determination of the individual is annulled, since it only remains to act as it is imposed by the active subject, being then what is protected, the freedom of determination of the individual.
V. Objective typicality
to. Active subject: Active subject can be any person, including the public official, with the exception of cases in which the performance of the type by the official implies excess or abuse of its powers, in which case art. 376 of the CP Outside this assumption, person, official or not, who develops the behavior foreseen in the type of art. 151 of the CP becomes an active subject thereof.
For his part, the Argentine professor Carlos Creus, tells us that the active subject for this unjust, can be anyone; but in some cases, the quality of the active subject, together with the nature of the requirement, may change the title of the imputation, admitting all degrees of participation.
The Peruvian magistrate Ramiro Salinas Siccha, in a different position in part, points out that when starting the criminal type with the phrase “he who (…)”, serves to affirm that the active subject of the crime can be any person, not requiring any special condition in the person of the agent, it can even be a public official; and that –the author adds-, a typical case is the conduct developed by a member of the Peruvian National Police, when arresting a citizen for no apparent reason, an illegal detention that is declared a consequence of the exercise of the habeas guarantee action Corpus. And that it has been tried to find confusion between the criminal assumptions foreseen in the criminal types of articles 151º and 376º of the Penal Code; however, from the reading of both assumptions it is concluded that they differ abysmally,so much so that it is impossible to think that they can be confused. From our position, we can sustain in any case, that the active subject for this crime can be any person, without distinction of qualifying circumstances, however, if these illegal actions are carried out holding office and within a determined function (regulated by the Law) and with attribution and understanding to the person of the aggrieved, the possibility of facing this crime is banished, said conduct being claimed, by another criminal type different from the one studied25.If these illicit actions are carried out holding a position and within a certain function (regulated by law) and with attribution and understanding to the person of the victim, the possibility of facing this crime is banished, and said conduct is claimed by another different criminal type from the one studied25.If these illicit actions are carried out holding a position and within a certain function (regulated by law) and with attribution and understanding to the person of the victim, the possibility of facing this crime is banished, and said conduct is claimed by another different criminal type from the one studied25.
b. Passive subject:
It can be anyone with a psychophysical capacity to act, excluding those indictable for disabling mental illness (psychosis) or for being newborns, for not having a double will due to coercion, including also children (minors) with the capacity to act, as subject passive of the type under reason.
Sergio Politoff and Others, teaches that regarding the taxable person even if he is unimpeachable, except in cases of factual limits, verbiage, children of a few days or a catatonic mental patient, a situation in which the freedom to act cannot be affected (although it can so is personal security, as happens in the crimes of kidnapping and child abduction).
The teacher Carlos Creus, referring to the taxable person in the crime of threat, but applicable for our analysis, points out that any person who has sufficient capacity for understanding to understand that the threat is threatened can also be a taxable person. Therefore, those who lack the capacity to grasp the sense of threat of the advertisement due to psychological or physical insufficiencies cannot be taxable, therefore (a putative crime could appear), provided that in the case the recruitment is totally impossible: it is still taxable person who can replace his disability by other means that allow him to capture the threat (the blind man who can make himself read the threatening letter). Logically, it must be a specific or determinable taxable person (eg,the threat directed at the members of a club); the undetermined threat (to the general public or to racial or religious groups) may constitute a crime belonging to other titles, but not the one in question; In addition, the author adds, he must be a subject capable of determination, that is, he must possess, at least, the capacity to love, even if it is not complete.
The Peruvian Peña Cabrera Freyre, within a happy reach, points out that the taxable person must be a person who is enjoying his personal freedom and who has the capacity to enjoy and / or exercise.
For us, the taxpayer of the crime of coercion, is made up of every person with the capacity to exercise and enjoy their rights recognized by law, excluding those in which said capacity is diminished by any circumstance, which in some way makes it impossible the receipt of the threatening message or the violence used, which tends to the cancellation of their will regarding the performance or not of the acts determined by said person, that is, those allowed or not prohibited by law.
c. Typical mode
Before entering into the analysis of the typical modality, let us transcribe ad pedem litterae what is established in article 151 of the Peruvian Penal Code, which states:
Article 151.- He who, by threat or violence, compels another to do what the law does not mandate or prevents him from doing what she does not prohibit shall be punished with a custodial sentence of not more than two years.
As noted in this criminal type, it is first necessary to refer to the constituent elements of the crime sub examine, using for this the illustration given by Professor César Haro Lázaro, these elements being the following:
to. That a person be forced to do what the law does not mandate or be prevented from doing what she does not prohibit.
b. That the agent acts with full will to compel the victim to do or say something against his will, or prevent him from doing what the law does not prohibit (which results in intent).
c. That, the agent to achieve that the victim agrees to his requirements, uses as a means the announcement of the threat, or any action, weapon or object that may intimidate her.
d. That the victim access the agent's interests out of fear or intimidation.
and. That, necessarily, there is the use of the threat or moral or physical violence on the victim by the agent.
As inferred, the materialization of the crime of coercion is represented by the action that violates the freedom of the victim, taking into account that the doctrine considers as coercion "threats to suffer serious and imminent harm", proper moral violence (compulsive vis or intimidation). Our criminal law regulates as coercion the "threat or violence used against someone to force him to do or say something against his will, or to prevent him from doing something that is not prohibited by law."
For the purposes of shaping the crime, violence (vis absolute - vis phisica or vis corporalis) must be understood as that physical force or energy that the active subject or agent discharges onto the victim's body in order to compel him to do what the law does not prohibit. Said violence is translated as that physical force exerted on a person, sufficient to overcome their resistance, forcing them to do what the law does not mandate or prevent them from doing what they do not prohibit. Therefore, violence is the: “forced execution of something, regardless of its legality or illegality”, within this meaning it is possible to understand both violence exerted on people and that practiced on things.
Before proceeding, it must be explained that forcing another to do what the law does not mandate, therefore means compelling or constraining another person to carry out certain actions, completely canceling his will; and that preventing another from doing what the law does not prohibit, results in not letting another do what he has proposed at the time he is going to do it or is in a position to do it; In this sense, it does not constitute a crime of coercion if it is prevented from doing what the law prohibits. Returning to discourse, violence involves the exercise of sufficient physical force, which affects the body of the passive subject, nullifying their decision-making capacity for self-determination. For the teacher Bustos Ramírez, violence can affect the victim's physiological plane or, also, on things,as long as it generates the result that the norm contains as a consummative condition; This recognition of the typical relevance of force in things presupposes that this hypothesis of the application of violence effectively affects the freedom of will of human behavior, in relation to any active or omissionable behavior.
One opinion, which we do not share, is that given by the Peruvian magistrate Javier Villa Stein, who states that it is general to admit in the doctrine that the threat refers to the announcement to the victim and by whatever means (verbal, gesturing, electronic, etc.) that you expect a certain wrong not to act or act in a certain way not required or prohibited by law, such statement would not be entirely reasonable, because although the threat that uses gestures or gestures as a means by the agent, said event would not be sufficient or suitable to bend and submit the will of the victim, especially when it would be very difficult to prove such event with evidence; also if the threat uses electronic means, eg, electronic mail,it could hardly be proven that it was really the agent who sent a threatening email to the person of the victim, and this as we well know, given that any unscrupulous and unethical person, with the use of a small, not so robust program, could hack a person's password, therefore accessing their email and sending virtual epistles with threatening content.
Ergo, the result must be to prevent another from something that the law does not prohibit (that is, compel him to omit something that is not prohibited), or compel him to do something, just or unfair. An adequate causal relationship must be mediated between the act of coercion and the result. For this, the circumstances of the event, the situation of the subjects and all those data that allow offering an ex ante objective judgment on the intensity of the violence and its adequacy to achieve the desired result must be taken into account. It is not the same to coerce a child than a professional boxer; in each case the intensity of the violence to be used is different.
Summing up we will say then, that the criminal type under study requires as an objective element that the threat has an end, that is, it seeks to bend the action of the taxable person in such a way that it directs him to do something that he is not obliged to do and that through the means of perpetration seeks to impose, therefore what has been said, may well be framed as "doing what the law does not mandate or preventing doing what it does not prohibit"; and it is that if there is a single threat, it cannot be reasoned that there was coercion, since the type demands that this “means” have an “end”, and therefore the consequences of the threat must be proven, that is, the aggrieved party has acted under the threats, carrying out actions that would go against the legal system; reason why it is had and reinforcing the ideas previously used,that for the configuration of the crime against Personal Liberty in its coercion modality, all the legal presuppositions must concur, this is to force (the guiding verb), through violence or threat (commission means) that the victim does what the The law does not mandate or prevent it from doing what it does not prohibit (finalistic element).
SAW. Subjective typicity and consummation
The fraud is required in the agent, that is, the knowledge of the unjust nature of the threat and / or violence, and the will to use it to coerce the victim according to the typical purposes described in the norm.
Therefore, the agent must know that he is forcing another to do what the law does not mandate or, preventing another, to do what the law does not prohibit.
The Spanish Supreme Court, by means of Judgment No. 138/2001, dated July 11, has indicated that the subjective type in the crime of coercion includes not only the conscience and will of the activity that is carried out, but also a tendency to restrict the freedom to act outside, with this it is intended to denote that said criminal conduct must be provided with fraud, that is, knowledge of the elements of the criminal type and the will to carry out the behavior of coercing another person.
Regarding consummation, it must be specified that it materializes at the moment the victim suffers the threat, or is treated with violence by the agent, to compel her to do something against her will, or when it prevents her from taking any action (doing something), which is allowed by law. It must be clear, then, that for the consummation, the conduct of the author is enough to prevent another from acting as the law does not prohibit him or compel him to do what he does not want, without the fact that he cannot effectively act or is forced to do so. in a certain way as a consequence of the imposition of the perpetrator of the crime. The result, therefore, is none other than the injury produced in the right to liberty of the taxable person as a consequence of the conduct of the author, although for this, in reality,such conduct is sufficient if you meet the necessary requirements. In this regard, it must also be considered that the crime of coercion is a crime of result, in which the constraint of the will of the taxable person is required as an element of the type, whose effective reality is what determines the moment of consummation, being regardless of whether the culprit achieves or not the purpose that served as the motive for the crime, which belongs to the exhaustion phase of the criminal offense.being indifferent for it the fact that the culprit achieves or not the purpose that served as motive to the crime, which belongs to the exhaustion phase of the criminal offense.being indifferent for it the fact that the culprit achieves or not the purpose that served as motive to the crime, which belongs to the exhaustion phase of the criminal offense.
In this sense, since it is a result-injury crime, the attempt is admissible, which includes the beginning of the acts of execution described in the criminal type, that is, the externalization of the actions tending to impose the will of the active subject, who otherwise must want the acts that he objectively displays, also intending to continue with the materialization of the acts for the consummation of the crime, configuring the attempt when the agent exercises physical force or threat without the victim submits to their demands, if resistance has been offered.
VII. Penalty
According to the typical description of article 151 of the Penal Code, the sentence for this crime is not more than two years. However, since the minimum penalty according to our national punitive body is two days, such a quantum of penalty would have to be taken as the lower limit or minimum limit, so that from there, the Judge, and attending to the form and circumstances in which the events denounced and investigated occurred, can determine it.
VIII. Procedural reality against the crime of coercion
After glimpsing some dogmatic aspects of the crime of coercion, it is worth making a space to refer to how this type of crime is being investigated, through the body that pursues the crime par excellence. As we know, any fiscal investigation is initiated after the knowledge or receipt of the notitia criminis, thereby impelling the state prosecuting machinery, so that these facts are prosecuted and those responsible are prosecuted. From this, it has been that in the judicial district of Lambayeque, verbal complaints have been received (through the Criminal Prosecutor's Office on duty) or written (presented by a single party table of the Public Ministry or through the National Police of the Peru), on facts related to the crime of coercion, and that after receiving said denunciation,The complaints are forwarded to the Coordinating Provincial Criminal Prosecutor, who in turn assigns it to the Prosecutor who he considers should investigate. Once the tax file has been generated and received by the Prosecutor who must investigate (Provincial Prosecutor or Deputy Provincial Criminal Prosecutor), he will qualify the complaint, in such a way that it allows evaluating whether the initiation of an investigation or, where appropriate, the plan file, is warranted. of the complaint.
If the disquisition begins, the Prosecutor will summon the complainant and the accused in order to make their statement, and also contribute by providing the appropriate evidence that allows them to reaffirm their position, that is, that they contribute to the investigation with all those means of evidence that they prove the real commission of the facts - on the part of the complainant, given that on the side of the accused, the burden of proof lies with the Prosecutor. With all this, and with the statements of the parties already rendered, most of the time, the prosecutor does not have sufficient elements of conviction to assess that he is facing the crime of coercion, a situation that leads to the filing of the perquisition. In other cases, the Prosecutor orders that psychological tests be carried out on the parties involved,in order to have in sight a technical opinion regarding the affectation of the psyche of the aggrieved party, and the profile of the accused, to know his personality and proclivity to the commission of said crimes.
In this sense, in order to avoid the intolerable thickening of the fiscal workload, the complaints that are made must be thoroughly evaluated, in order to discriminate and redirect –whether it corresponds- to a private action, or failing that the archive of it. Obviously, if the objective and subjective elements of the criminal type of coercion are verified, the preparatory investigation must be formalized, and then the fiscal accusation against the accused must be upheld.
As it is known, many times the person who makes a complaint does not have the means of evidence to prove his real commission, however, this factual reality is upheld by the complainant, demanding that the Public Ministry proceed against the person who occupies the position of indicted, obviously creating a crossroads between sustaining a weak incrimination (prone to a dismissal - acquittal) or being that said complaint and investigation do not correspond to the Principle of Feasibility of the Investigative Function of the Public Ministry, which would inevitably lead to a filing of the cause.
IX. The crime of coercion through national jurisprudence
Our national jurisprudence has approached the crime of coercion in a very explanatory way, happily defining the scope of its commissioning means, as well as the development of its typical description.
In this section we have collected and extracted the most significant Peruvian jurisprudence that allows us to know how the Judges understand and apply the content of article 151 of the Penal Code.
Below and contained in figures are detailed:
1. “In this sense, violence must be understood as the physical force on another person, sufficient to overcome their resistance, and may also fall on property, whether movable or immovable, provided that they have some connection with the taxpayer of the crime. and in the case of the threat it becomes an announcement of the purpose of causing harm to another person through words, gestures, acts with the same purpose ”
SUPERIOR EXECUTION OF THE CRIMINAL APPEALS ROOM FOR SUMMARY PROCESSES WITH FREE INMATES OF THE SUPERIOR COURT OF JUSTICE OF LIMA OF JUNE 08, 1998. FILE 1379-1998.
2. “The threat is that action that must produce in the taxable person a fear or compulsion, for which he is forced to obey the agent, carrying out a behavior that he indicates; such fear must be the consequence of a sufficiently suitable threat about an imminent evil. Physical violence, on the other hand, must be sufficiently marked to generate the annulment of the will of the victim, who is forced to carry out unwanted conduct ”.
SUPERIOR EXECUTING OF THE CRIMINAL ROOM OF APPEALS FOR SUMMARY PROCESSES WITH FREE INMATES OF THE SUPERIOR COURT OF JUSTICE OF LIMA OF JUNE 19, 1998. FILE 1310-1998.
3. "The crime and the criminal responsibility of the accused are credited, as he has threatened the victim with a firearm to desist from continuing with the work he was doing to install the light."
SUPERIOR EXECUTION OF THE CRIMINAL APPEALS ROOM FOR SUMMARY PROCESSES WITH FREE INMATES OF THE SUPERIOR COURT OF JUSTICE OF LIMA OF NOVEMBER 19, 1998. FILE 3857-98.
4. "Insults do not constitute the crime of coercion, unless it is proven that through them, the actors, exerted violence or threatens the victim, forcing her to do what the law does not mandate or prevents her from doing what she does not prohibit"
RNNº 3719-2001. CUSCO.
5. “In the crime of coercion, criminal perfection will consist of violently imposing on another a certain positive behavior (to do) or omission (to prevent); while in domestic violence, for its configuration it is required that the agent without any right enter a dwelling or other business house or, that despite the requirement of the inhabitant to withdraw, remain in that place "
SUPERIOR EXECUTION OF THE CRIMINAL APPEALS ROOM FOR SUMMARY PROCESSES WITH FREE INMATES OF THE SUPERIOR COURT OF JUSTICE OF LIMA DEL. FILE 1278-98. LIME.
6. "The commission of the investigated fact and the responsibility of the sentenced are duly accredited when they unjustifiably try to bring the victim against their will and use force to a medical center for the mentally ill"
SUPERIOR EXECUTION OF THE CRIMINAL APPEALS ROOM FOR SUMMARY PROCESSES WITH FREE INMATES OF THE SUPERIOR COURT OF JUSTICE OF LIMA OF OCTOBER 23, 1998. FILE 2443-98.
7. “Both in the preliminary stage of investigation and in the investigation, it has been proved conclusively and indisputably that the sentenced person has observed typical and unlawful conduct with respect to the aggrieved, by resorting to violent acts to coerce his self-determination to travel through the places where it moved; Violence exerted by the accused to try to kiss her against her will and touch the small areas of her body without her free consent and without mediating between them a loving relationship that makes them excusable from such acts, thus violating both the ambulatory freedom that all person as the free disposition of his body; therefore there is guilt in his behavior that makes him deserving of reproach for his unjust ”.
SUPERIOR EXECUTORY - SUPERIOR COURT OF JUSTICE OF FREEDOM OF APRIL 24, 2000. FILE 98-817.
8. “In the crime of coercion, the freedom to act or act of a person must be endangered according to his will, so that the acquittal of the accused is arranged by law if the latter, despite having persecuted a his partner has not forced the victim to perform an act contrary to their desire. "
SUPERIOR EXECUTION OF THE CRIMINAL APPEALS ROOM FOR SUMMARY PROCESSES WITH FREE INMATES OF THE SUPERIOR COURT OF JUSTICE OF LIMA OF SEPTEMBER 21, 1998. FILE 3058-98.
9. “The fact that the defendant (who had received a sharp knife weapon) intercepted the victim, inflicting cuts on different parts of the body, does not constitute the crime of coercion, since the intentional action was not carried out to compel the victim to do what the law does not mandate nor to prevent you from doing what it does not prohibit ”
SUPREME EXECUTION OF APRIL 14, 1998. FILE 36146-1997. CUSCO.
10. "The request made by the peasant ronderos to the aggrieved in the sense that they accompany them to the home of one of the latter, for the purpose of being questioned, as it is daily in the area before the commission of the crime of cattle rustling, must be analyzed in the context and powers of defense and cooperation that article 149 of the Political Constitution of the State and Law Nº 24561 grant to peasant rounds ”
X. Conclusions
From the dogmatic bases reached, and also taking into account our factual-legal reality, we can conclude the following:
- That coercion is an offense that affects the individual freedom of people, involving an attack on their freedom and also their self-determination, adopting for this - by the agent - an action annulling the will of the victim, whose freedom is subject to that of the aggressor; being that said criminal resolution must have been with the use of violence or threat as a method of intimidation. That, both violence and / or the threat used for coercive purposes, must be suitable and able to bend the will of the agent, with the In order to force him to do what the law does not mandate or to prevent him from doing what it does not prohibit, that is to say that the violence exerted must have been carried out with the aim of coercing the taxpayer, and not with the animus laedendi or intention to injure, since in this case, the crime must be redirected to that of Injuries. On the other hand, the threat must be of such magnitude that it causes a morbid fear to the victim,in such a way that it completely annuls the will of the same and with it carries out the actions that the agent agent orders him, obviously within the scope of article 151 of the Penal Code, because in another case we would be in front of the mediated authorship. isolated insults, insidious and / or lustful glances, unfeasible threats, compliments for purposes other than courting, unjustified cuts in electricity and water service (lessor> tenant), the change of the lock or its uselessness, the deflating the tires of a car, injuries accompanied by threats and insults - without the encouragement of coercion; they are conducts that in good account would not configure the crime of coercion,Because these threats or violence must have been sufficient and capable of defeating the will of the victim, and with it, compel her to do something not prohibited by law or prevent her from doing what she does not outlaw, also taking into account that in some cases, although the behaviors may prevent a person from acting voluntarily, but in some ways they cannot be equated with the violence exerted directly on the person, unless the agent knows that by exercising violence on him, he will be able to condition the actions of the victim., and this one ostensibly experiences this double. In large part of the complaints filed before the Public Ministry by those who consider themselves aggrieved of this criminal offense,They are related to circumstances that far from being typified as a punishable act against personal liberty -coercion-, they are framed to a legal asset different from it, such that the common denominator of the facts subject to denunciation are those that deal with simple threats, injuries that do not entail the intention or will to coerce, injuries, etc. Rather, its field of protection leads to crimes against life, body and health, and those that protect the honor of persons; In this sense, the generality is that said complaints, after the tax investigation carried out, inevitably lead to a file of the same. Which although it is appealed to the Superior in degree, this one in his great part has confirmed these dispositions of non-formalization of the preparatory investigation,being its foundations related to the fact that they do not exist in the investigation deployed, much less in the collected elements of conviction, and contributed by the parties, circumstances that make the presence of the objective and subjective elements of the criminal type appear; given that although there could be threats -in their case- these according to the objective description that appears in article 151 of the Penal Code, and given its two-sided construction that maintains in its corpus an antecedent and consequent, the threat and the violence would be reduced to the antecedent, ergo, if the criminal type is completed and operates when the two essential parties merge, in the present case,it would only materialize when the agent subject using said violence or threat forces another to do what the law does not mandate or prevents him from doing what she does not prohibit, being only at that stage when the structure of the rule would be completed or integrated, and with it its legal operation. On the contrary, if the legal consequence or consequence is missing, which is related to the fact that the threat or violence used has been able to subdue or bend the will of the victim in order to do what the law does not mandate or not to do what she does not prohibit, it would only be possible to notice the existence of said threats, and even injuries, but that both have not been sufficient and suitable to control and subordinate the will of the victim in the direction indicated by the criminal type under study,and with it its addressing to the field of atypicality.
Kidnapping crime
I. Liminal notions
The typical description of the crime of kidnapping is so broad that it seems to comprise a series of assumptions whose subsumption in the crime mentioned is more than questionable. Even more so when there are related figures that also seem applicable (extortion and coercion crimes). It is not our intention to carry out an in-depth analysis of the crime of kidnapping, but only to approach the subject and the points that we consider most controversial.
II. Legally protected asset
The doctrine that admits that the good protected with the criminal type of kidnapping is ambulatory freedom is intensive, that is, the freedom of locomotion understood as the power to freely determine, on the part of the person, their spatial situation.
We do not share Peña Cabrera's thesis in the sense of being understood as a legal good of the type, external freedom, that is, freedom of movement in space, since that situation can occur in the form of coercion (physical violence) but not in the kidnapping.
III. Objective typicality
A. Active subject, any person, including the public official outside his functions.
B. Taxable person in general and for the base rate can be anyone, including the person indictable for disabling mental illness, even if they are not aware of the grievance of which they are being victimized.
Taxpayer in particular and aggravating can be also, the minor and the elderly even if they do not realize the grievance (babies, or senile eg); the official or diplomatic representative public servant, the relative in third degree of consanguinity or second of affinity and the private entrepreneur.
We do not share, of course, the thesis of Professor Bramont Arias Torres to condition the eventual condition of the taxpayer of the unimputable, minors or mentally ill, to have sufficient capacity to make decisions about their movements, not only because, in the aggravated form, subsection 5 of the article under reason does not suggest it and we must not distinguish it nec non distinguish we should, but because the certain ambulatory freedom of the unimpeachable is exercised by representation by the parents, guardians or curators. Suffice it to add that, if it corresponds to the temporal-territorial scope of Peruvian law, it is paradigmatic for all times and places, the case of the kidnapping of the son (baby) of the American aviator Charles Lindbergh.
The behavior required by the simple type is to deprive a person of his or her outpatient freedom, without reason or justifiable authority, regardless of the motive or circumstance.
The forms of deprivation can be many, the foreseeable ones being the confinement of the victim for as long as it is, even the very brief one, or its deceptive or violent transfer to a place that distinguishes it from the one that corresponds or wants to be.
As the type demands that the kidnapping action be carried out "without right" we must understand that the case of the right of correction that parents, educators, guardians, curators have, or the right of treatment and cure that doctors and nurses have is not understood.
Likewise, the type requires the lack of reason or justified power, which results in an excessively open forecast since it does not specify art. 152, modified by Legislative Decree 896, what reason or power is inadmissible. However, it is understood that the reason or the power must be associated with a cause of justification, what happens when there is a court order, etc.
IV. Typical behavior
The behavior demanded by the aggravated type have the following peculiarities.
4.1. For the agent's conduct
4.1.1. The agent abuses, corrupts, cruelly treats or endangers the life or health of the victim:
The guardian legislator has wanted, in addition to the ambulatory freedom of the victim, his psychological, moral and bodily compensation, aggravating the guilt and punishment of the active subject if he exceeds sexual abuse or otherwise.
The concept of corrupting cannot be other than that commonly assigned by the average citizen to the immoral acts or suggestions that awaken and incite him or the minor, deviant appetites and practices.
The concept of cruelty refers to the fact of inflicting unnecessary suffering of any kind on the victim. Cruelty is defined only from the needlessness of torment for the primary purpose that the type claims.
4.1.2. The agent pretends non-existent mental illness in the victim:
Here the seriousness of the fact results from the medium-falsehood in the data-used by the agent. Attributing to the victim a mental illness that he does not have, is treacherous.
Add that usually the competition of third parties (doctors, psychologists, etc.) will be required. Due to greed or professional ineptitude, they admit the confinement of the victim in mental health centers.
Add that the grimness of the matter arises from the fact that the victim under unexpected and forced confinement, as well as under the effect of calming drugs, certainly has the appearance of being mentally ill without being so.
4.2. For the quality of the victim
4.2.1. When the victim is an official, public servant or diplomatic representative.
Here, with the exception of the diplomatic representative, to whom the state owes permanent security and because his is a full-time activity, we do not understand why the quality of public servant or official can give special gravity to the matter. When Peña Cabrera and Bramont Arias Torres affirm that this is because they serve the country, they forget that all citizens in general and those in private activity in particular also serve the country. Anachronistic figure.
4.2.2. The victim is kidnapped for his activities in the private sector.
The legislator has wanted to protect the autonomy and freedom of businessmen in the private sector, frequently threatened by the crime of kidnapping in view of the feasibility of obtaining financial resources.
The forecast is, however, very open since any activity that is not that of the public sector belongs exclusively to the private sector. The Judge must, however, interpret the point restrictively in terms of providing as aggravated conduct that which violates the freedom of private businessmen or professionals whose economic success is evident.
4.2.3. The aggrieved is a relative within the third and degree of consanguinity or second of affinity with the persons referred to in the preceding paragraph.
The legislator therefore insists on the unfounded emotional anachronism of which we have realized.
4.2.4. If the victim is a minor or elderly: It would be treated according to the type of protection to a greater extent than the adult, to the minor of eighteen years of age. Peña Cabrera affirms that the minor of 16 years of age will be because it is this minor who the Peruvian Civil Code in its article 43, inc. He considers them absolutely incapable.
We do not share this respectable criterion. For Criminal Law, which is what we write about; the minor under the age of eighteen is a minor.
The type also, by provision of Legislative Decree 896, successfully protects the elderly, understanding ta1 to the over 65, by extensive application of article 22 of the Penal Code.
4.3. For the purpose pursued by the actor with the kidnapping:
4.3.1. When it is committed to compel an official or public servant to release a detainee or an authority to grant illegal demands: Again it moves in the legislator a greater rejection of the fact that the agent instrumentalizes the victim, in addition to exhibiting extortionate purpose.
4.3.2. When it is committed to compel the aggrieved to join a criminal organization, or to compel the aggrieved or a third person to provide the agent of the crime with financial aid or their assistance under any modality.
It is about aggravating the extortive behavior of the agent in addition to the fact that he instrumentalizes the victim without any human objection.
This is the case of the kidnapping of surgeons to attend to the terrorists wounded in their criminal actions.
4.3.3. He who, in order to contribute to the commission of the crime of kidnapping, provides information that he has learned by reason or on the occasion of his duties or office, or deliberately provides the means for the perpetration of the crime.
The legislator has wanted to seriously punish the provision of information and data available to the agent due to his working proximity to the victim, facilitators of the kidnapping.
4.4. For the result:
4.4.1. Particularly aggravated is the case that the victim results in serious damage to the body or physical or mental health, or dies during the kidnapping, or as a consequence of said act.
It was not necessary to include this point in the code for two reasons:
a) Because it can be solved with the competition of crimes. Serious injuries eg
b) The fortuitous result, concomitant to the kidnapping, not wanted nor foreseen, cannot be punished without colliding with the prohibition contained in art. VII of the Preliminary Title that establishes the author's criminal liability requirement and the proscription of strict liability.
V. Subjective typicity
Kidnapping is a fraudulent type, that is, understanding and the will to deprive another person of ambulatory freedom.
Add for the aggravated assumption that the author must know in the assumption of cruelty endangered in life or health that in fact his conduct is unnecessarily cruel or dangerous for the life and health of the victim.
For the second assumption, the actor must know that the victim is mentally healthy.
For the third, fourth, fifth and sixth aggravation assumption, it is obvious that the actor must know the qualities of the victim. For the aggravated alleged ninth, the actor must know that the information provided in the specific case facilitates the kidnapping is proposed by the recipient.
SAW. Imperfect type of realization
The crime is consummated the moment the victim's outpatient freedom is deprived. Admittedly attempt. The case of who intercepts the car in which the victim is going (beginning of the executive acts) is already an attempt. Once the victim has been taken up in the car of the agent or agents, the crime of kidnapping has already been consummated.
The crime is permanent until the taxable person is released, so the limitation period has been counted since then.
VII. The sorrow
For the simple figure, the corresponding penalty is custodial of not less than twenty nor more than thirty years. For the aggravated form, the custodial sentence will be not less than thirty years.
The penalty will be life imprisonment for the case of the result of serious damage to the body in physical health or mint, or death during the kidnapping or as a consequence of said act.
For a better understanding, we will analyze the crime of kidnapping based on four hypothetical cases.
Case 1
A group of protesters takes José - a member of the National Police - as hostages for several hours, until he is released thanks to the intervention of his fellow soldiers.
a) Typical adaptation.- The core of the crime of kidnapping revolves around the deprivation or restriction of personal freedom, which supposes an unjustified limitation of the ability to move or the ability to move from one place to another freely and voluntary. The criminal type requires that conduct be carried out without right, reason or justified power. And is that in some cases such behaviors may not be unlawful. For example, in the reasonable exercise of the right of correction over children (temporary prohibition to leave home); the hospitalization of the mentally ill, etc.
We understand that the proposed case conforms to the typical description of the crime of kidnapping, since there has been an unjustified deprivation of José's personal freedom. Indeed, he has been deprived of the power to move freely from one place to another. According to the legislator, the motive, the modality, the circumstances or the duration of the deprivation of liberty are indistinct for the consummation of the crime, that is, they do not justify or enervate it. If we stick to the wording of the criminal type, any deprivation of personal liberty without a right, motive or "justified" faculty must be sanctioned as a kidnapping crime.
b) Permanent crime.- The crime of kidnapping has a sui generis legal nature, since it is usually considered a crime of instant consummation with effects or permanent execution. In other words, the crime is perfected from the moment in which another person is deprived of liberty, but the typical action continues to be carried out uninterruptedly until the deprivation of liberty ends.
The foregoing is of utmost importance to qualify behaviors after the initial moment of deprivation of liberty. Indeed, whenever the crime of kidnapping involves a permanent and uninterrupted attack on the protected legal asset, as long as the deprivation of liberty does not end, any intervention that takes place during that period can be imputed, as the case may be, as authorship or by way of complicity. As Del Rosal Blasco points out: It is possible, even, the concurrence of forms of authorship or participation in those subjects who join the (permanent) execution of the crime while the situation of deprivation of liberty persists, although it has begun before that they intervene and have knowledge of its existence.
From this, the fact that a defendant did not participate in the initial moment in which the police force was deprived of liberty, does not necessarily exempt him from a conviction for the crime of kidnapping as an author or an accomplice. And so, whoever transports the victim - previously deprived of his liberty - from one place to another or lends the house where he is to be held, will respond criminally.
It would be wrong to consider that these acts are not criminally relevant because they are subsequent to the “consummation” of the crime, as if the crime were consummated only and exclusively at the moment when José is deprived of his liberty. And it is wrong because, as we have been saying, we are facing a permanent crime, with which the typical action is carried out without interruption, without continuity solution. Subsequent conduct, therefore, also implies a deprivation of personal liberty and can be imputed either by way of authorship or complicity.
However, the fact that all those who participated in the initial moment of the kidnapping have not been individualized or, even, that they were minors, does not erode the possibility that those who subsequently intervened may be held responsible as perpetrators or accomplices.. Indeed, kidnapping is a permanent crime and, as such, the responsibility of the “subsequent perpetrators” does not necessarily depend on the responsibility of those who would have acted first, that is, those who initially deprived the victim of liberty. In the case of accomplices, participation is informed by the principle of limited accessibility, that is, the accomplices respond for their contribution in an unlawful act, even when the guilt of the authors is excluded (for example, if the authors are minors).
c) Aggravating circumstance.- Taking into account that the victim of the kidnapping was a member of the National Police, the aggravated type provided in subsection 3 of the second paragraph of article 152 CP is applicable: the penalty will be not less than thirty years when the aggrieved or the agent is an official or public servant.
Indeed, José was a member of the Peruvian National Police and was on duty, trying to restore order. The aggravated subtype occurs, since numeral 5 of article 425 of the Penal Code determines the status of official or public servant of the members of the Armed Forces and National Police. Precisely cases like these are the basis for the higher degree of reproach for the conduct, which merits an increase in sentence by resorting to the application of an aggravated subtype. In this regard, Bramont-Arias and García Cantizano maintain:… this aggravating circumstance is shaped by reason of the quality of the aggrieved, who is a person at the service of public interests. In such a case, in addition to affecting his personal ambulatory freedom, indirectly it is also disrupting the normal functioning of the State.
To specify who is an official or public servant, it is necessary to resort to the provisions of article 425 CP.
However, the magnitude of the sentence provided by the legislator (not less than thirty years old) is shown to be excessive for cases such as the one presented here: taking hostage in acts of social or political agitation. Frankly excessive when compared to the penalties of qualified homicide (not less than fifteen years) and the crime of terrorism (not less than twenty years). Consequently, and pending some reform that will restore a certain rationality to this rule, we will have to resort to the incomplete exemption provided for in article 21 of the Penal Code to reduce the penalty below the legal limit.
d) Time that the victim suffers the deprivation or restriction of their freedom.- The consummation of the criminal type is indistinct as long as the victim has been deprived of his freedom. It is not even taken as an aggravating circumstance, as occurs in "extortive kidnapping" when it lasts more than twenty-four hours. With which, beyond the modulation of the sentence within the limits provided by the legislator for the crime of kidnapping, the deprivation of liberty for a few hours, as well as for several days or weeks, is valued with the same standard.
Case 2
Juan, Pedro and José kidnap Luis. Later, they communicate with Luis's family to ask for a ransom of half a million dollars.
This is perhaps the example we have most in mind when we hear the word kidnapping. And, in truth, we are facing a clear impact on ambulatory freedom. However, it is paradoxical that the kidnapping of a person in order to ask for an economic advantage - read ransom - is sanctioned in our legal system not under the figure of kidnapping, but extortion, that is, a crime systematically located within the Title V, dedicated to Crimes against Heritage.
In effect, article 200 CP punishes the agent with a custodial sentence of not less than twenty nor more than thirty years who, in order to obtain an undue economic advantage or of any other nature, holds a person hostage. When the crime is committed by two or more people, as in the proposed case, the expected penalty is not less than thirty years.
We are therefore before an apparent competition for laws, where the so-called "extortive kidnapping" displaces the crime provided for in article 152 CP. It is curious that a crime against heritage (article 200 CP) prevails over a criminal figure whose legal asset is one of such importance as personal freedom (article 152 CP). But this is what the legislator wanted, when taking deprivation of liberty as an aggravating factor of extortion, when perhaps the most appropriate thing would have been to take as an aggravating circumstance of kidnapping the pursuit of an economic advantage.
The distinction between the crime of kidnapping (article 152) and extortionary kidnapping (article 200) has been clarified by the Supreme Court in a judgment of April 28, 2004: “that it appears from the accusation itself that those who kidnapped and kept Hostage to the aggrieved León Huaco they put in telephone contact with his brother to whom they demanded five hundred thousand American dollars to release him; that, however, the act having been classified as a crime of kidnapping - beyond that, strictly speaking, and considering the - purpose pursued by the active agent, the criminal type would be that of extortive kidnapping, provided for and sanctioned by article two hundred of the Penal Code―, a criminal figure that is limited or limited to a deprivation of personal liberty of the taxpayer ”
The Chamber rejected that the demand for the payment of a ransom for the release of the victim constituted the aggravating circumstance of the former subsection 8 of article 152 CP because, as has just been pointed out, the demand for a ransom is one of the defining elements of the crime extortion or, more precisely, extortive kidnapping.
The crime of extortion, certainly, recognizes other typical modalities, some of which do not seem to have an adequate systematic location within crimes against heritage. Beyond the dogmatic and political-criminal questions that could be asked, a task that is beyond the purpose of this work.
In any case, we allow ourselves a couple of considerations regarding this criminal figure, modified by Legislative Decree No. 982.
a) The modification that has generated the most controversy in public opinion has been the inclusion of a cryptic formula by virtue of which the public official with decision-making power, or who holds a position of trust or direction, is sanctioned in contravention of the provisions of the Article 42 of the Constitution, participates in a strike in order to obtain for himself or for others any undue economic benefit or advantage, or another advantage of any other nature.
Of course, when the legislator speaks of participation in a strike, he does not refer to the dogmatic category of participation, that is, induction and complicity, since instigation and collaboration in a non-criminal act - such as the strike - obviously it is irrelevant from a criminal point of view. When the legislator says to participate, then, he means to intervene, to take part.
However, the exercise of the right to strike, or the simple cessation of work for protest purposes even in cases where it has been declared illegal cannot be assimilated to the crime of extortion, since this crime requires the concurrence of violence or threat. With which, on good account, what the Executive has done has been to smuggle a provision that, as the Ombudsman has well pointed out, does not form part of the delegated matter under Law 29009. The context in that such a rule came to light, as well as the penalty of disqualification that has been foreseen for these behaviors, makes one think - it is only a hypothesis - that the Executive wanted to have a mechanism to remove local or regional authorities especially opposed to Central Government policies.
b) Along the same lines seems to be the incorporation of a new form of extortion that bears similarities to the crime of obstructing the operation of public services under article 283 CP. The taking of premises, the obstruction of communication channels, the normal operation of public services or the execution of legally authorized works and other behavior, when violence or threat is used, are repressed. These conducts must be aimed at obtaining from the authorities any undue economic benefit or advantage, or another advantage “of any other nature”.
This open formula, which is not consistent with the principle of certainty that should inform the legislative work in criminal matters, does not even require that this advantage of any other nature be "undue", with which, one might wonder if this constitutes a form evening to silence or suppress social protests.
Case 3
Juan holds Maria captive for several days in order to practice the sexual act with her. María is rescued by members of the National Police.
There is undoubtedly an unjustified deprivation of liberty.
However, it would be good to stop in two circumstances that have the virtue of excluding, in some cases, the concurrence of the crime of kidnapping. We refer to the time and purpose pursued by the perpetrator of the crime of sexual rape. It should be mentioned that this can also be preached in relation to other criminal figures, such as the crime of theft.
In effect, in relation to this last crime, it has been understood that the momentary deprivation of liberty of the victim does not entail the consummation of the crime of kidnapping, since that brief effect on ambulatory freedom - which occurs while the act of seizure lasts - is already it would be undervalued by the criminal legislator when sanctioning the crime of theft. With which, we find ourselves before an apparent contest. As the Criminal Chamber of the Spanish Supreme Court refers, we are faced with an apparent competition of laws "only in those cases of minimum temporary duration", in which the deprivation of liberty takes place during the act of empowerment, since it is understood that in this assumption deprivation of liberty is absorbed by robbery: all robbery with violence or intimidation affects, even if it is instantaneous,the ambulatory freedom of the victim.
Likewise, the Criminal Chamber of our Supreme Court has had the opportunity to rule on the purpose pursued by the agent by depriving his victim of liberty. It was a case in which the accused had transferred the victim to a booth in order to practice the sexual act against him against him will; taking her back to her home once the fact is accomplished.
The Chamber considered that "the purpose of the criminal conduct was based on the crime of sexual rape and not that of kidnapping, therefore the elements of this type of criminal offense do not concur.
In these cases we see that the deprivation of liberty is a necessary means to consummate either a crime of theft or a crime against sexual freedom. However, when the time in which the victim is deprived of liberty is excessive or far exceeds that necessary for the consummation of the crime of theft or rape, the crime of kidnapping is fully autonomous and, therefore, the accused must be convicted both for the crime of robbery or sexual violation, and for the crime of kidnapping.
Taking into account that Juan kept María in captivity for a week, a serious effect on ambulatory freedom can be seen, the injury to this legal asset being of such intensity that it cannot be understood as absorbed by the crime against sexual freedom. It could have been a real contest between the crimes of kidnapping and sexual rape, but taking into account that the crime of kidnapping includes as an aggravating circumstance the fact of abusing the victim, Juan will be sentenced as the author of the crime of kidnapping in its aggravated form to a penalty of not less than thirty years.
Case 4
Juan, discharged a few days after having undergone a surgical operation, is prevented from leaving the clinic until he complies with paying the full bill for medical services. Juan has just turned 80 years old.
A literal interpretation of the norm could lead to sentencing the director of the clinic to a sentence of not less than twenty nor more than thirty years. And up to life imprisonment, if you want to apply the aggravating circumstance of subsection 1 of the last paragraph of article 152 CP (that the aggrieved be a minor or over seventy years old). And there is a restriction on Juan's personal freedom that does not seem to be justified, at least in our legal system, as the Constitutional Court has already pointed out on multiple occasions. However, it does not seem that the case raised should be redirected to the figure of the kidnapping. Much less when you take a look at the magnitude of the penalties set by the legislator.
Well, in Spanish doctrine and jurisprudence, the crime of coercion is understood as a residual and generic type in relation to, among others, the crime of illegal detention. For this reason, it is no coincidence that in our legislation the crime of coercion is regulated alongside the crime of kidnapping, and under a common heading: “Violation of personal freedom”.
In effect, Article 151 CP punishes with a custodial sentence of no more than two years, who, by threat or violence, compels another to do what the law does not command or prevents him from doing what it does not prohibit.
If in our legal system there is no provision that prohibits a patient from leaving a hospital center as long as he does not comply with paying the bill for the services received - in this case, there is no rule similar to the right of retention provided in article 1123 of the Civil Code - the restriction of freedom of movement, manifested in preventing the patient's departure, has to be completely unlawful. Furthermore, as already indicated, the Constitutional Court has determined the illegality of this type of Practice.
Regarding the requirement of violence, we will have to accept that said element is not reduced to physical violence exerted on the person of the victim, but must be understood under a spiritualist conception where the important thing is that there is a restriction on freedom. to act.
The solution of the case seems to oscillate between the atypicality of the fact and the consummation of a crime of coercion. I understand that if there has been an affectation to individual freedom, with which, taking into account the criteria of merit and need for punishment, and the principle of proportionality, I consider that the fact is subsumed within the crime of coercion.
Due to its importance from a procedural point of view, it is worth quoting Moran Mora when he points out: “special emphasis should be placed on the homogeneous nature of these crimes, which allows them to be convicted ex officio for a crime of coercion despite the fact that the parties allege a more specific crime, such as illegal detention. For the Supreme Court, this does not imply any violation of the accusatory principle that must govern all processes, since the characteristics required for the application of said homogeneity are fulfilled (identity of the protected legal asset and location in the same Title of the Penal Code) ”.
Footnotes
1. PEÑA CABRERA FREYRE, Alonso Raúl. CRIMINAL LAW SPECIAL PART. TOMO I. Idemsa Editores. Edition November 2008. Lima - Peru. Page 447.
2. MUÑOZ CONDE, Francisco. CRIMINAL LAW SPECIAL PART. Tirant lo Blanch. Fifteenth edition 2008. Valencia - Spain. Page 150-151.
3. TOMAS DE AQUINO. THEOLOGICAL SUM. Second part. First section. Cl, aa. 1 and 2.
4. POLITOFF L, Sergio; MATTUS A, Jean Pierre & RAMÏREZ G; Maria Cecilia. LESSONS OF CHILEAN CRIMINAL LAW. SPECIAL PART. Legal Editorial of Chile. Second updated edition 2004. Santiago - Chile. Page 186.
5. CHIRINOS SOTO, Enrique. THE NEW CONSTITUTION AT THE REACH OF EVERYONE. Lime. Editorial Andina. 1980. Page 38.
6. FILE No. 0019-2005-PI, dated July 21, 2005. Constitutional Court of Peru.
7. RUBIO CORREA, Marcial. STUDY OF THE POLITICAL CONSTITUTION OF 1993. VOLUME I. Editorial Fund of the Pontifical Catholic University of Peru. First Edition February 1999. Page 439-440.
8. FILE No. 2496-2005-PHC / TC, published on June 3, 2005. Case: Valencia Gutiérrez.
9. DICTIONARY OF THE ROYAL ACADEMY OF THE SPANISH LANGUAGE. Twenty-Second Edition.
10. CABANELLAS DE LAS CUEVAS, Guillermo. ENCYCLOPEDIC DICTIONARY OF USUAL LAW. Volume II. Heliasta Publishing House. Twenty-Fourth Edition. Argentina 1996.
11. DIAZ MURO, José Antonio. DICTIONARY OF LATIN TERMS. Editorial Mendoza. 2002. Chiclayo - Peru. Page 153.
12. BRAMONT-ARIAS TORRES, Luís Alberto & GARCÍA CANTIZANO, María Del Carmen. MANUAL OF CRIMINAL LAW SPECIAL PART. Editorial San Marcos. Fourth Edition 1998. Lima- Peru. Page 182-183.
13. POLAINO NAVARRETE and OTHERS. SPANISH CRIMINAL LAW COURSE. SPECIAL PART - TOMO I. Dir. Cobo del Rosal. Editorial Marcial Pons. Madrid. 1996. Page 239.
14. Ibid.
15. CREUS, Carlos. CRIMINAL LAW SPECIAL PART TOMO I. Editorial Astrea. Sixth Edition updated 1997. Buenos Aires - Argentina. Page 334.
16. Sentences of the Spanish Supreme Court, cited in CERVELLO DONDERIS, Vicente. THE COOKING CRIME IN THE CRIMINAL CODE OF 1995. Tirant lo Blanch. Valencía 1999. Page 21.
17. POLITOFF L, Sergio; MATTUS A, Jean Pierre & RAMÏREZ G; Maria Cecilia. Op. Cit. Page 188-189.
18. DIAZ-MOROTO Y VILLAREJO, J. THREATS AND COACTIONS. In Compendium of Criminal Law Special Part. Director: Miguel Bajo Fernández. Page 60.
19. ALBERTO DONNA, Edgardo. CRIMINAL LAW SPECIAL PART VOLUME II A. Rubinzal - Culzoni Editores. Buenos Aires, Argentina. Year 2001. Page 254.
20. SALINAS SICCHA, Ramiro. CRIMINAL LAW SPECIAL PART. Legal Editor Grijley. Third Edition 2008. Lima - Peru. Page 437-438.
21. A solution to this problem has been found in Spanish legislation, where its Criminal Code is clearly legislated, which commits the crime of Coercion who, without being legitimized, prevents another person with violence from doing what the Law does not prohibit, or compels her to do what she doesn't want to do, whether it's fair or unfair (…). With this normative assumption, any application disagreement is avoided when wanting to frame an unlawful act carried out by a person who holds a certain position or performs a particular function, because said offense could only be committed by someone who is not legitimized to prevent another person (…), ergo, as a proposal of lege ferenda, article 151 of our Penal Code could well be modified, in the sense of adding the expression:without being legitimately authorized, that is, establishing as an active subject the person who “without being legitimately authorized” commits the acts that constitute the crime, following the Spanish legislative technique of its article 172º - Penal Code -, being that in such a way, our Punitive rule would specify its scope and avoid inconveniences at the time of its application to the specific case.
22. VILLA STEIN, Javier. CRIMINAL LAW SPECIAL PART VOLUME IB. Editorial San Marcos. 1998 Edition. Lima - Peru. Page 109.
23. POLITOFF L, Sergio; MATTUS A, Jean Pierre & RAMÏREZ G; Maria Cecilia. Op. Cit. Page 189.28 CREUS, Carlos. Op. Cit. Page 332.
24. PEÑA CABRERA FREYRE, Alonso Raúl. Op. Cit. 449.
25. HARO LÁZARO, César. TREATY ON CRIMINAL LAW SPECIAL PART. TOMO I. AFA Editores Importadores SA. First Revised Edition 1993. Lima - Peru. Page.
26. RODRIGUEZ ESPINOZA, Carlos A. MANUAL OF CRIMINAL LAW SPECIAL PART. TOMO I. Legal Editions. 2006 Edition. Lima - Peru. Page 196.
27. SALINAS SICCHA, Ramiro. Op. Cit. Page 429.
28. BUSTOS RAMIREZ, Juan. MANUAL OF CRIMINAL LAW SPECIAL PART. Editorial Ariel SA. Barcelona, Spain. Page 116.
29. VILLA STEIN, Javier. Op. Cit. Page 110.
30. MUÑOZ CONDE, Francisco. Op. Cit. Page 154.
31. You must not lose sight of the fact that, as Coercion has well pointed out, it consists in carrying out personal violence to prevent the other from doing something not prohibited or to force the other to do what he or she does not want, whether it is just or unfair, always against the freedom of the obligor and without legitimacy for its realization. The central nucleus of the behavior consists of violently imposing one behavior on another through various modes of action, physical and mental violence and the so-called violence in things.
32. JUDGMENT OF THE SPANISH SUPREME COURT No. 1367/2002, dated July 18.
33. JUDGMENT OF THE SECOND ROOM OF THE SPANISH SUPREME COURT No. 1523/2000, of October 7.
34. It should be specified that there is no pre-established criterion for attributing complaints to the Prosecutors by the Coordinating Provincial Criminal Prosecutor, but rather that it is left to a sort of DECISION that he makes.
35. Article 152.- It shall be punished with a custodial sentence of not less than twenty nor more than thirty years who, without right, reason or justified authority, deprives another of his personal freedom, whatever the motive, the purpose, the modality or circumstance or time that the victim suffers the deprivation or restriction of his freedom. The penalty will be no less than thirty years when:
1. The victim's life or health is abused, corrupted, cruelly treated, or endangered.
2. Non-existent mental illness is alleged as the victim.
3. The aggrieved or the agent is an official or public servant.
4. The victim is a diplomatic representative of another country.
5. The victim is kidnapped for his activities in the private sector.
6. The victim is a relative, within the third degree of consanguinity or second degree of affinity with the persons referred to in paragraphs 3, 4, and 5 above.
7. Its purpose is to compel an official or public servant to release a detainee or to grant illegal demands.
8. It is committed to compel the victim to join a criminal group.
9. It is committed to obtain somatic tissues from the victim.
10. Minor injuries are caused to the victim.
11. It is committed by two or more people or is used for the commission of the crime against minors or another unimpeachable person.
12. The aggrieved suffers from serious illness.
13. The victim is in a state of pregnancy.
The same penalty shall be applied to the person who, in order to contribute to the commission of the crime of kidnapping, provides information that he has learned by reason or on the occasion of his functions, office or trade, or deliberately provides the means for the perpetration of the crime.
The penalty will be life imprisonment when:
1. The victim is a minor or over seventy years old.
2. The aggrieved person suffers disability and the agent takes advantage of this circumstance.
3. If serious injury or death is caused to the victim during the kidnapping or as a consequence of said act.
36. PRATS CANUT, Josep Miquel. Crimes against freedom. In: AA. VV. Quintero Olivares (dir.). Comments to the Special Part of Criminal Law. Navarra, Aranzadi, 2005, 5th ed., Pag. 188-191.
37. DEL ROSAL BLASCO, Bernardo. Crimes against freedom (I). In: Cobo del Rosal (coord.). Spanish Criminal Law. Special Part. Madrid, Dykinson, 2005, 2nd ed., Pag. 184.
38. BRAMONT-ARIAS TORRES, Luis and GARCIA CANTIZANO, María del Carmen. Criminal Law Manual. Special Part. Lima, Editorial San Marcos, 1998, 4th ed., P. 189.
39. Article 200.- Anyone who, by violence or threat, compels a person or a public or private institution to grant the agent or a third party an undue economic advantage or another advantage of any other nature, shall be punished with a custodial sentence of not lesser ten or over fifteen years old.
The same penalty shall be applied to the person who, in order to contribute to the commission of the crime of extortion, provides information that he or she has learned by reason or on the occasion of his / her functions, office or trade, or deliberately provides the means for the perpetration of the crime.
Anyone who, by violence or threat, takes premises, hinders communication channels or prevents the free transit of citizens or disrupts the normal functioning of public services or the execution of legally authorized works, in order to obtain from the authorities any benefit or undue economic advantage or other advantage of any other nature, will be punished with a custodial sentence of not less than five nor more than ten years.
The public official with decision-making power or the one who carries out a position of trust or leadership who, contrary to the provisions of article 42 of the Political Constitution of Peru, participates in a strike in order to obtain for himself or for third parties any benefit or undue economic advantage or other advantage of any other nature, will be sanctioned with disqualification in accordance with paragraphs 1) and 2) of article 36 of the Penal Code.
The penalty shall be not less than fifteen nor greater than twenty-five years if the violence or threat is committed:
a) By armed hand;
b) Two or more people participating; or, c) Using minors.
If the agent, in order to obtain an undue economic advantage or of any other kind, holds a person hostage, the penalty shall be not less than twenty nor more than thirty years.
The penalty shall be deprivation of liberty not less than thirty years, when in the case provided for in the preceding paragraph:
a) It lasts more than twenty-four hours.
b) Cruelty is used against the hostage.
c) The victim has a public or private function or is a diplomatic representative.
d) The hostage suffers from serious illness.
e) It is committed by two or more people
f) Minor injuries are caused to the victim.
The penalty will be life imprisonment when:
a) The hostage is a minor or over seventy years of age.
b) The hostage is a person with a disability and the agent takes advantage of this circumstance.
c) If the victim is seriously injured or dies during or as a consequence of said act.
40. For a complete reading of the sentence, vid. SAN MARTIN CASTRO, Cesar. Jurisprudence and Binding Criminal Precedent. Lima, Palestra, 2006, pag. 406-409.
41. This circumstance consisted of forcing a third person to provide financial assistance to the agent of the crime; aggravating circumstance that was eliminated by Legislative Decree No. 982.
42. Sentences reviewed by Del Rosal, vid. DEL ROSAL BLASCO, Bernardo. Offenses against… ob. cit., p. 184.
43. Appeal for Nullity No. 2567-98. Lambayeque. In: ROJAS VARGAS, Fidel. Criminal jurisprudence. Volume I. Lima, Legal Gazette, 1999, p. 347.
44. We are, in this sense, before an apparent competition of laws where the crime of kidnapping prevails in the aggravated form provided for in the first paragraph of the second paragraph of article 152 CP: the penalty will be not less than thirty years when:, corrupts, treats with cruelty or endangers the life or health of the victim ”. On the scope, in this context, of the term abuse, vid. VILLA STEIN, Javier. Criminal law. Special Part. IB. Crimes against honor, family and freedom. Lima, San Marcos, 1998, p. 115; SALINAS SICCHA, Ramiro. Criminal law. Special Part. Lima, Grijley, 2008, 3rd ed., P. 445.
45. In effect, our Constitutional Court has determined the illegality of these practices, considering that due to the lack of payment of hospitalization expenses, the patients discharged cannot make use of their freedom to leave the hospital or healthcare centers, much less condition it to any administrative procedure, except for the patient's voluntary act (vid. inter alias, files n ° 836-96-HC / TC and 1411-2001-HC / TC).
46. Vid. MORAN MORA, Carolina. Of constraints. In: AA.VV. Comments to the Special Part of Criminal Law. Quintero Olivares (Dir.) And Morales Prats (coord.). Navarra, Aranzadi, 2005, 5th ed., P. 249-250.
47. MORAN MORA, Carolina. Of constraints… ob. cit. P. 25.
