Under Title III of Book II of the Colombian Penal Code are those that the legislature called "crimes against individual freedom and other security", where they include crimes against freedom themselves against the autonomy and against other forms of liberty that violate certain conditions of as privacy, privacy, freedom of work, worship, etc.
Perhaps like no other, individual freedom is regarded as well worthy of protection by the criminal law.
The legal right to be protected in this chapter is then freedom of human beings.
Human freedom is an attribute of his will and is also a right. As for attribute of the human will, freedom is power to self-determination and also act attitude without obeying any force or decisive ground. It is an act by itself or with words of Kant, a causality whose first moment is just cause and no effect otherwise. It is therefore conscious of wanting freedom. As a right, freedom is power to do or not do what is not prohibited by the law. Others say it is right to do or omit acts which are not ordered or prohibited. But freedom is also a category in the world of legally regulated conduct. As such, is entitled to exercise or not the individual rights and to comply or not to comply with the duties. When a man chooses between exercising and not exercising a right, between complying or not complying with a duty to work freely.
Freedom in the generic sense, then, the power of man to choose his own line of behavior, no internal or external attachments. The etymological concept presents her as a human situation that is not subject to slavery.
Broadly, the concept of freedom generates the liability, this is a consequence of free action, and thus be accountable only man to have acted freely, for only in this case their actions may be proclaimed as his work.
In a legal sense, we mean by freedom the right guaranteed by ordering every man to act according to their own self-determination, provided such action does not affect the rights of others or social life.
normativist In effect, the concept of freedom is to be understood as the possibility that man has to perform all activities not prohibited by law, and not run the events that are not imperatively ordered them. Is a regulated right and normatively determined.
These few words from Professor Alfonso Ortiz Rodriguez in the Special Criminal Law Handbook (p. 414) and Parra Pabon Pedro Alfonso (p. 661) serve to introduce the Title III of the Special Part of Code Penal enshrined there, including Articles 165 and 204, the so-called crimes against individual freedom. Individual freedom is nothing but the personal law (understood as the power and possibility) of all human beings to develop their vital activities, social and economic structures that have objective manifestations of relationship in your life; such activities are specifically protected the right of this title.
is that once we say, individual freedom is a fundamental human right guaranteed by the Constitution, which only supports explicit regulatory constraints, and therefore, is that we can say at the outset that individual freedom brings added multiple personal rights and social freedoms, among which include freedom of movement, freedom of expression, the right and freedom to work, freedom of association, freedom of religion and conscience, freedom of education and teaching, freedom industry and commerce, the right to inviolability of the home, the right to inviolability of correspondence, the right to privacy ...
We conclude this overview by saying that as derivatives of the right to individual freedom include the right to be subjected to us slavery or servitude in any way, nor be required to perform forced or compulsory labor. The right not to be arbitrarily deprived of his liberty by any person or any authority. The right to be free from arbitrary interference with his privacy, family, home or correspondence.
criminal law as science is dogmatic, protects human rights, as they are protected and guaranteed at the institutional level, criminal legislation becomes explicit development of such guarantees, because its foundation and source of criminal legislation.
Title III of the Criminal Code organized into nine chapters, the different behavioral assumptions that may affect or impair individual freedom and other constitutional guarantees, from an objective viewpoint. Systematically, the criminal protection of this object is moved from Title X, where he located the code 1980 to relate it as a third object of protection, predating the protection of life and personal integrity persons and property protected by international humanitarian law. This, as the development of the methodology imposed by the anthropocentric nature of the 1991 Constitution, in which, first, sets forth the protection of Individual Rights, following the guidance of the so-called Public Goods and finally, the interests of those residing at the head of state.
enforced disappearance.
No one shall be subjected to enforced disappearance, prescribed by Article 12 of the Constitution. The Inter-American Convention against enforced disappearance in article second, defines the crime: "For purposes of this Convention, forced disappearance is considered the deprivation of liberty to one or more persons, whatever way, perpetrated by state agents or by persons or groups of people acting with the authorization, support or acquiescence of the state, followed by lack of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of the person, thereby impeding the exercise of remedies legal and procedural guarantees. "
The perpetrator must be a public servant to take advantage of his position, ie not enough to have this quality, but requires that you have been by reason of his office. Otherwise, the applicable standard would be another (eg Article 161), yes, it is not required to have the power to the deprivation of liberty, they hold enough using his position.
Before we forget, the teacher Faciolince Victoria Eugenia Díaz, in his text "The pain of mourning," states the following with regard to enforced disappearance:
"Enforced disappearance is a practice that seeks the destruction of an opponent, an enemy or similar. One of the serious consequences societies where it occurs is the difficulty of the subjects to elaborate mourning the lost beings. Some authors have suggested that this is a duel impossible to perform due to the lack of a body to provide material evidence of death and states that this lack of "external reality test" subjects the individual to crave the missing returns alive.
analyzes the logic behind the disappearance and examines its peculiarities in Colombia. Covers the fundamentals of the theory of mourning to build a proposed work on the development of loss. A common response to the disappearance is a pain to remain suspended; This book proposes a novel thesis according to which the duel after the disappearance, depends essentially on the psychic movement of the subject and not the reunion with the beloved, even the discovery of her body. This raises a subject and a community can remove barriers that enforced disappearance places the duel, and thus mobilize processes to reach a conclusion. "
On the other hand, Professor José Vicente Rodríguez Cuenca , in his "Introduction to Forensic Anthropology," adds
"The severe socio-economic measures introduced in Latin America in the 60's under the auspices of the transnational, generated a massive wave of rejection by legally organized opposition forces and armed groups. The pressure of the latter led many countries to institutionalize the practice of enforced disappearance against opposition groups. In Guatemala from 1966 took a massive, extending later to Argentina, Chile, Colombia and other Central American countries. The seriousness of the situation led to the General Assembly of the United Nations issued in 1978 the resolution 33/173 by which it requested the Human Rights Commission to investigate these facts, produced in 1980 the formation of the Working Group on Enforced or Involuntary Disappearances (Cohen, 1992).
In 1975 the figure of enforced disappearance began to be used regularly in Argentina during the government of Maria Estela Martinez de Peron against Montoneros groups and other democratic organizations, but acquired a semblance of drama from 1976 when widespread during the military regimes, reaching an increase of 1 000% (Cohen, 1992:26). In 1977 he established the organization Mothers of Plaza de Mayo, whose white scarves covering their heads of the mothers of the missing became a national symbol protest against military repression. Later in 1983 establishing the National Commission on Disappeared Persons (CONADEP), a body charged with investigating the situation of thousands of Argentineans disappeared. In this context the American experience was extended to Argentina thanks to the enthusiastic and committed collaboration of Clyde Collins Snow, sponsored by the American Association for the Advancement of Science Human Rights Program (AAAs). In 1986 his initiative was materialized with the formation of the Argentine Forensic Anthropology Team (EAAF), composed of young anthropologists, archaeologists and doctors. Forensic investigations of this group had two main objectives: "Deliver the remains to the families of the disappeared person and provide evidence for court cases then pending against military personnel accused of violating human rights" (Cohen, 1992:152). This research played a huge role in denouncing the forced disappearance that occurred more than 10,000 casualties during military regimes. The Mothers and Grandmothers of Plaza de Mayo "having scientific support in the search for their missing relatives. Later the experience of the forensic team nonprofit spread to neighboring countries such as Bolivia, Brazil, Venezuela, Guatemala, El Salvador. In Colombia, in turn, led to formation of a forensic university, composed of professors from the National University (Humanities, Sciences, Dentistry, Medicine and Art) and in Chile the integration of the Group of Forensic Anthropology (GAF).
In 1992, the American Association for the Advancement of Sciences (AAAs) Human Rights Program in Guatemala City called several members of the United States, Argentina (EAAF), Chile (EGAF), Colombia and Guatemala to to establish in the latter country a forensic team, do some exhumations and integrating Latin American colleagues. Later exhumations were carried out in El Salvador where they received training judicial officials in that country. "
consecration of a penal law to criminalize enforced disappearance of persons was an essential need and an international imperative for the State, having regard to the existence of the Inter-American Convention on it, signed in Belém do Para, Brazil on June 9, 1994, internalized by our law under Act 707 of 2001.
The offense set out in Article 165 is a result type of injury, permanent and pluriofensiva behavior.
The subject asset is indefinite and singular, and that behavior can be performed by server public, including belonging to an armed group outside the law or individual acting under the determination or acquiescence of a public servant.
The second article of the American Convention on Forced Disappearance of 1994 adopted in the structural understanding of the behavior described an active subject: state agents or persons or groups of persons acting with their authorization, but the determination agent depend on the direct or indirect relationship with state agencies.
The socio-political conflict, armed conflict, political in nature and the rise of organized crime, have led to the disappearance of people from presuming to effective and appropriate tool to remove or neutralize enemies. In strict acceptance of our reality, this may be attributable to any person or group of persons involved in the various manifestations of violence afflicting the nation.
reported cases in recent years have been attributed either to the paramilitary groups, groups of social cleansing, organized crime and direct or indirect actions of the police.
Fortunately, the legislature received and adopted the comprehensive approach to understanding the active subject of this crime authoring scenarios covering both the public servant to the individual acting alone or in the determination or acquiescence of that, dogmatically acceptable formula that adequately reflected specific criminological needs of our country.
Also, with respect to the active subject, we find that the standard requires, on the particular suited for performing the behavior, a second qualification of positive order, belonging to an armed group outside the law, this hypothesis which was declared unconstitutional by the Court in Case C-317, August 13, 2002 and that our feeling that this requirement was intended to cover the different phenomena of violence embedded in our environment, which can become sources of commission.
conduct establishes a complex verb (subject to imprisonment) to a generic particular action, governed by the verb "submit" to imprisonment, a term that encompasses all the possible misuse or theft of check a human being by another, demanding, in view of criminality, concealment of the taxpayer, ignorance, denial or no information of his whereabouts and, therefore, removal of the victim the legal protection of their rights, property and interests by the state.
Consequently, concealment of the victim causes a radical departure from their social, work and family, preventing him from bringing any legal action or media rights protection and social and institutional.
Here some structural differences in this behavior.
The disappearance rate is identified internationally as autonomous behavior, distinct from other attacks the legal right to individual liberty in its concretions of freedom of movement and self-determination, such as kidnapping in its various forms, arbitrary detention or abduction in competition with the murder, as later we will have a chance to explain.
is that to talk of enforced disappearance in accordance with Article 165, we have to say that retention is only intended the disappearance of the person who does not have news about his situation, using an expression very much our "erase from the face of the earth", and this aspect is that it helps to identify the forced disappearance and also differentiate with the abduction for ransom, which implicates a hold, a removal or concealment of a person, but, in order to seek profit or utility, or done or omitted anything, or advertising or political purposes.
addition, the definition of enforced disappearance is not the condition that its source is an unlawful deprivation of liberty, on the assumption of commission by a public servant; the norm, no distinction, let acts can be fully adapted to certain cases in which when the agent lawfully deprived of liberty, later hidden away, denying the state of deprivation or no information on the whereabouts of the victim.
committed action incriminated in particular, according to the original text, if it belongs to an armed group outside the law. The introduction of this blanket regulatory element groups as diverse as death squads, bands of assassins, vigilante gangs, paramilitary groups, paramilitary groups or defenses peasant guerrillas.
Article 166 establishes new circumstance that increases the penalty for the disappearance, in our opinion, because it presents a greater intent and hence the greater degree of criticism.
executive action of forcing someone to "imprisonment" regardless whatever form, followed by concealing and failing to give information to the appropriate authority from the subjective point of view, that is, from the standpoint of fraud understood as knowledge coupled with the desire to wipe out the victim, is more reprehensible when, by way of example, the conduct is committed against a person with a disability that prevents you to fend for themselves, or against a pregnant woman, or against more than 60 years.
"In the case of forced disappearance the fraud is complex, because the knowledge and the will of the event should include two aspects: the deprivation of liberty of person and will disappear, and that deprivation is of freedom is a means to hide or disappear to the victim. Of course, the fraud also involves knowledge of the media, refusing to report the whereabouts of the victim and other elements of the disappearance. The subjective intent as punishable precedes action, governed and over-determines the external action, and does so in the exercise and display of psychic functions, knowledge, will, the cognitive or intellectual knowledge of fraud or representation is material circumstances that are typical action, ie that the author works knowing in advance the commission's action disappearance. Volitional or conative part of the fraud is will, for the purpose of executing the action plan is prohibited, in a word, is known to want the forbidden, it is said to act intentionally, who knows what he does "(Crimes against Humanity, p.. 279).
The above quotation we can say that they can be allocated to one of those circumstances that increases the penalty, that fact must be known or at least inferred. So, if retained in a pregnant woman and this situation is unknown, and also for the short time of pregnancy is not inferred such a situation, you can not apply the aggravating factor.
The first aggravating factor is about the exercise of authority and jurisdiction. The term authority refers specifically to the exercise of administrative functions and powers of decision makers and management, in a generic sense, is an exercise of power, empire, with corresponding period of subordination, however, that the understanding of this word must be made sense broad or generic, powers and specific powers of the agent should take strict legal source, namely, that this aggravating situations are not understood or simulation usurpation of authority because it has to be legitimate and real.
jurisdiction, also in a generic sense, refers territorial space in which public servants are active, powers and statutory powers. More specifically and in order to reach the aggravating circumstance, we must understand the expression and exercise capacity of the judicial function.
The second and third paragraphs devoted disability, minority, old age and pregnancy status of the taxpayer since the severe involvement of the skills or adequacy of physical or psychological disabling the taxpayer for the normal development of social, labor or sexual aggravate the punishment, as expressed their helplessness or inferiority.
The phrases used in the above paragraphs are a bit restrictive, therefore, note that no state expressly included severe illness, which imposes a broad interpretation of any inconvenience. Think of a taxable person of 30 years, normal, but suffers from a serious illness such as leukemia, it is not possible, at our discretion, increase the behavior, and expressions are restrictive.
The fourth paragraph of the rule that we study includes other qualifications of the taxpayer and in particular grounds of discrimination or intolerance. The statement is so wide that we have to conclude it will be very reduced number of disappearances that do not bear any of the taxpayers listed there.
The fifth paragraph expands the list of taxable persons to the relatives of these.
In the sixth paragraph the term used is broad and general: when committed using state assets. Know how to use instruments for the perpetration of the infringement of any property (tangible or intangible) that is part of the heritage of the state or whose administration or custody is entrusted to government agencies. It may be money, effects, weapons, metal, movable or immovable, consumable or non-expendable or consumable supplies.
believe that the term should be understood as goods for the provision of any public service by the State, including security.
The seventh paragraph establishes an aggravation that comes from physical pain or suffering caused to the taxpayer, which are of greater importance, intensity and damage to the simple realization of the behavior, the implementation of the action simple or basic certainly carries with it a load of degradation, cruelty and inhumanity, natural to a deprivation of liberty within the circumstances described by the type, therefore, we must conclude that the aggravation is not concerned then the fulfillment of its purposes or as effectively in the commission of crime, but to become more burdensome and there is a more determined criminal.
worsens punishable if by reason of enforced disappearance occurs personal injury or death of the victim.
In the ninth paragraph practice is exacerbated by extreme actions of concealment and damage. If the means to ensure the absolute disappearance of the person, ie have no news of his whereabouts, is the disfigurement of the body and this fact is made to cause harm to individuals interested in its location and identification should be intensified the punitive rule, with clear justification for having special produced harmful effects.
Article 167 is devoted three circumstances mitigating punishment. These attenuations are intended to stimulate and promote the rapid release of the taxpayer and the timely provision of information on their whereabouts observe how, in this case is not required to act aggravated, that has not reached the goals proposed , as happens with the kidnapping, as such difficult conditions structuring the mitigation to which we refer. The release must be voluntary on the part of the agent, or if it occurs within 15 days following the development of the crime of disappearance, but determined by circumstances beyond the control of the actor, of course there will be no punitive attenuation.
order to apply the diminuente, is necessary for the structuring and refinement of the offense of disappearance is exhausted, ie, deprivation of liberty for the purposes outlined by the guy with all its elements must be dogmatic effective.
As an additional requirement, we have that at the time of deliberate release, the taxpayer must be in physical and mental conditions similar to which had at the time of deprivation of liberty, at this point we must understand that there is the mitigating damage from natural without traumas that are inherent in the order effectual to the completion of crime.
The information provided should be effective in the immediate recovery of the taxpayer, and therefore, release must occur to effectively diminuente appropriate referral, that is not enough to be suitable but should also be effective .
KIDNAPPING.
I invite you to do the following test: in any search engine on the Internet, type the word abduction and I assure you will find more than 300,000 publications that contain only in Colombia. Is that the issue we're going to start today, is one of the most (if not the highest) importance in crime in our country in recent decades.
Kidnapping is kidnapping action and effect. The latter word, in its third sense, means "to apprehend the thieves to a person demanding money for his ransom." The crime of kidnapping and particularly the kidnapping for profit or gain is one of the crimes that cause greater social unrest in our country, this immense gravity of the warrants, fully, not only that the penalties to impose are of the highest, but which were undergoing continuous changes in the law, note that after the promulgation of Act 599 of 2000 and was issued on January 29, 2002 Act 733, which amended one or another way this offense coming out the way to the progress of crime in this area.
The crime of kidnapping is therefore one of the most aberrant and consists of depriving a person of personal liberty, action denoted by the verbs take, remove, retain or hide as expressly provided by Article 169.
Making an analysis of Chapter 2 of Title III, we must conclude that the methods of kidnapping are: kidnapping, extortion, kidnapping and aggravated kidnapping.
The simple kidnapping is a type of result, and that the infringement is deemed perfected, it requires the effective denial of freedom of the taxpayer, while this does not happen, the only enforcement action may incriminate tentative title.
is a type of injury because that offense requires or brings about a necessary consequence the effective violation of legally protected interest, the violation of individual freedom of the taxpayer in all areas.
type of behavior is a permanent, as necessary, of course, that deprivation of freedom of the taxpayer is extended in time without regard for the fact that the rate is enhanced with some of the alternative behaviors described but is not limited to them but which endures in time for the duration of the realization of the action.
pluriofensivo is a type for the realization of this fact, multiple interests may be violated or endangered, such as personal integrity, moral integrity, life, etc.
The subject asset is an individual who runs the typical behavior, to which no special skill is required. This subject is denoted by "which" and does not require any special condition no express or implied, is meant to be any individual of the human species. The rate can be improved with the action of a single subject, however, the rise of the kidnapping industry in contemporary society, makes this hideous crime ordinarily you run a large number of subjects, whose criminal situation be resolved with participation rules of Article 30. It's just not the same criminal who has the idea, who is on the fact seize, remove, retain or conceal, who takes care of the hostage, who runs the rescue ...
behavior can be performed using four scenarios of commission as well:
Snatches maker violent and irresistible force, involves the unlawful element, it is arbitrary action indeed.
Subtract who takes or separates the taxpayer of its space field in which he develops throughout his life activity, may involve moral violence (deception, trickery, artifice), but for the fact criminality does not necessarily require the use of violence for its implementation.
Retains who maintains against their will, the taxpayer in a given special area involves direct obstruction of the rights of movement and self-determination. Strictly, this means keep, keep to himself.
who hides the taxpayer in such a way as to ignore their whereabouts and status, who conceals hidden from view.
In this regard we can mention the controversy surrounding a general of the Republic, when he said that no kidnapping when the AUC Congress "invited" to a meeting yet and bottle of whiskey. If we understand that "prima facie" the victim of the kidnapping is the owner of the property violated with legal action, that is, individual freedom, it is of the essence of this offense that the taxpayer was prejudiced criminal action, in other words, if the kidnapped enjoys his kidnapping, if one or otherwise it is for political purposes, this does not mean that we are not in the presence of the crime of kidnapping, as he snatched anyway, subtracted, retained or withheld from a person.
kidnapping for ransom.
"who wins, removes, withholds or conceals a person in order to demand their freedom towards a profit or utility, or is made or omit something or for advertising or political, be liable to imprisonment of eighteen (18) to twenty (28) years and a fine of 2,000 to 4,000 monthly legal minimum wage. "(Article 169 of Law 599 of 2000)
"who wins, removes, withholds or conceals a person for the purpose of demanding for their freedom a benefit or utility, or to be made or omits something, or for advertising or political, shall be punishable with twenty (20) to twenty (28) years and a fine of 2,000 to 4,000 monthly legal minimum wage. "(Article 2 of Law 733 of 2002)
comment in the provision establishes the kidnapping for extortion as a result type of injury, permanent and pluriofensivo behavior, we recall here what we said at the time of simple kidnapping.
The active subject is still, as for the kidnapping, an unspecified active subject singular. A natural person who runs the typical behavior, it is not required any special identification, criminal participation is contingent, the rate can be improved with the action of a single subject, or with the participation of several: the rise of the kidnapping industry in contemporary society, which in practice makes this crime is implemented by a large number of subjects, whose criminal situation must be resolved by the rules of criminal participation enshrined in Article 30 of the CP.
The taxpayer is the holder of the legal right infringed by the action, as we did look for simple kidnapping. Although at that time omitted a precision of the concept from the doctrine, which passed to remedy. One sector of the doctrine has wanted to see relatives and friends of kidnapped as passive objects of the offense, arguing, among other things, the state of constraint and threat to suffer during the period of captivity, we think that these individuals only may take as victims or harmed because of the strictly personal and individual right violated in the conduct.
material object in kidnapping for ransom is the person stolen, caught, hidden or taken away, over which runs directly any of those alternative actions, which, we must conclude that in this offense coincide qualities taxable and subject material.
However, family members or relatives of victims of kidnapping may, in turn, being passive subjects of a different conduct, for instance, the extortion (Article 244).
On the possibility of competition between kidnapping for ransom and extortion has outlined the following assumptions:
First, a sector of the doctrine holds that if the objective pursued by the offender is actually reached, there will be competition between abduction material ransom and extortion, and that the kidnapping and subsequent demand constraint set requiring that crime.
Secondly, another theory believes that the effective delivery of the intended purpose fully exhausted in the crime of kidnapping, which is not possible to proclaim the contest.
Third, is a thesis that says that if the taxpayer is asked direct economic demands, can not contest, because there "the deprivation of liberty is the form of constraint on it and dominates the legal property of the estate," but who hold this view, admit the possibility of competition whenever possible to establish differentiation between taxpayers and, of course, the legal rights violated them with the realization of behavior. Thus, for the kidnapped is not subject to direct economic requirements, the property is violated his personal freedom does not doubt, and so will be configured kidnapping for terceros (parientes y allegados) a quienes se hace la respectiva exigencia, el secuestro es medio intimidativo para la vulneración patrimonial.
Con relación a los complementos subjetivos del tipo, los cuales analizamos muy someramente en el tipo penal de secuestro simple porque dijimos en aquella oportunidad que “se ampliaba en forma ilimitada la comprensión de la conducta para abarcar todas las privaciones antijurídicas de la libertad, cualquiera que sea el fin perseguido por el agente”, ahora, en el análisis que le estamos haciendo al secuestro extorsivo, tenemos que detenernos en ese análisis, ya que el fin propuesto para el secuestro extorsivo, así lo requiere.
One thing is clear, in kidnapping for ransom the agent must set one of the following specific purposes for the emergence of criminality of the act, while the simple kidnapping proposed to be different from these statements:
demand for the release of taxable gain or profit: the agent to pursue its action as a benefit to be determined in the typical adjustment process, this advantage may be economic, political, advertising, legal, etc. ., obviously, for the criminality of fact not required to obtain the intended purpose effectively.
actually obtaining the intended purpose, is a statement we do in response to unambiguous executive acts can be done gradually, therefore, admits kidnapping attempt. While the offense is consummated when snatches, removes, withholds or conceals a person with any of the purposes intended, it is also true that, as a permanent type of behavior, are unmistakable executive acts which will determine consummation.
That
do or omit something, subjective complement, eagerly expected amplifier legislature comprises all possible goals that can guide anti-juridical action.
advertising purposes of a political nature: it specifies the generic complement already included in the previous two expressions, but it is clear that the purpose may be to make propaganda or dissemination of a particular party, group or political ideology.
CP 1980, enshrined in Article 268 paragraph 2 º a subjective complement the action was typical fall on a person of recognized reputation and political influence. This is intended to cover all possible goals proposed, however, the term was misleading, as required a subjective assessment sociological concepts to be alien to the typical descriptions.
Article 349 of the CP of 1936 enshrined the rapture. He said the provision: "He who through physical or moral violence or fraudulent acts of any kind, snatch, removes or detains a woman for the purpose of satisfying any sexual or erotic desire to marry her ...." What has led some to argue that the rapture is not a crime, we conclude that it is not the rapture has been removed from the actual coding, but it was subsumed in the simple kidnapping.
Let's clear, then, this statement: In the crime of abduction, as we watched the 1936 Code, criminal liability could be seen reduced substantially if the agent intended purpose of the action getting married or get erotic sexual indulgence. In this scenario, the rapture, in addition to violating self-determination, violates the sexual freedom, understood as the power and right to choose, reject and self-determine their own sexual behavior. We think the legislature making by eliminating the figure is more consistent with the principle of proportionality of punishment. Yes, the rapture to devote so ridiculous imprisonment (2 to 6 years), devoted a privileged offense, as we believe that the violation of individual freedom is not reduced for the purpose of the agent, or capricious can accept a hierarchy of legal interests, as that seems to be more important asset to attack the attack on the sexual freedom of the individual and very personal right; what we propose is that kidnapping for sexual or erotic marriage is fully subsumed in the crime of kidnapping.
Aggravating Circumstances for abduction.
When we started the comments of Title III, crimes against individual freedom, we said that is the title that demands more attention from our legislature, which varies as much as any legislation which prescribe behaviors that violate this legal right. Well, for just one example, after issuance of the Law 599 of 2000, two laws (Act 733 and Act 747 of 2002) and Decree (the 2667, 2001) have modified the primitive title of crimes against individual freedom .
Act 599 of 2000 enshrined in article 169 eleven (11) Aggravating circumstances for the crime of kidnapping or extortion. Act 733 of 2002 in its Article 2 amended three of the eleven aforementioned circumstances and added five more, devoting a total of sixteen (16) aggravating circumstances punitive damages only for the kidnapping for ransom.
The first paragraph establishes inferiority circumstances of the taxpayer. Disability, serious illness, pregnancy status, the minority and the elderly are circumstances which show helplessness and inferiority of the taxpayer, its use reflects more cowardice in action and great strength in the criminal decision, these circumstances generated by themselves greater risk for psychological or physical integrity of the victim.
The second clause, introduced by Law 733 of 2002, eliminates the possibility of simultaneous competition and heterogeneous the crime of torture, by requiring that "if the victim is subjected to physical or mental torture or sexual violence during the time you are kidnapped," the legislator recognizes, within a very unfortunate, an aggravating factor, that ends up producing the opposite effect be more favorable to the offender.
The third paragraph establishes a worsening response to extreme extension of deprivation of liberty. Since the abduction continuing offense, the extension in time for its implementation (more than 15 days) exacerbates their effects on physical or moral, to the taxpayer and reveals more criminal force on the agent.
The paragraph four aggravated kidnapping in the case of agent's family ties to the victim. Kinship relations set forth in the provision, generate duties of solidarity that are patently not respected in the execution of behavior, which reveals more moral callousness of the offender. The affinity or kinship is derived from any form of marriage or cohabitation.
The fifth paragraph establishes a quality of the active subject. If the agent is a public servant, is or has been a member of the security agencies of the State, the penalty is increased without considering that the criminal act has been perpetrated on the occasion, or in exercise of its functions or taking advantage of these qualities, in the opinion of conditioning that had enshrined the doctrine, based as punitive and fully the increase indicates the difference with the performance of ordinary people.
The sixth paragraph aggravated kidnapping in case of threats and pressure for delivery. Direct threats of death or injury on the victim or from acts that involve danger, are erected in a special form of mental torture and establishing specific causal aggravation this situation intensifies cohesion regime suffers victim more vulnerable by his will or that of others, in violation even more violently the legally protected. The threat aims to further subjugation of the victim and for the agent is most likely to achieve the intended purpose.
The seventh paragraph aggravated homicide for terrorist purposes. Much has been discussed already in our course for terrorist purposes. In this regard I refer to the comments we made to Article 104 paragraph 8, where we held that, strictly speaking, the purpose terrorism is attempting to create or maintain social atmosphere of anxiety with the commission of the conduct of kidnapping, in this case. Plagiarism is the means by which it is achieving the purpose terrorism. The aggravating factor is set when the agent is proposed for the purpose described without interest that the atmosphere of social anxiety or fear actually occur.
This rule only criminalizes terrorist purpose, not including the effective consolidation of the crime of terrorism, only specifies the means used, and therefore in full force leaves the possibility of competition with the crime of terrorism set out in Article 343 of the CP
The eighth paragraph incriminated as an aggravating the effective violation of the legal rights that the agent is proposed as a goal. Effective achievement of the intended purpose and the involvement of the victim of serious economic generate heavier penalty, without excluding the possibility of competition to which we had already referred when speaking of kidnapping for ransom.
The ninth paragraph of one form or another, stressed on the effective involvement of the assets of the victim, in his professional or economic activity.
The tenth paragraph raises the same issues raised by the second paragraph about the possibility of competition between kidnapping for extortion and murder, or between kidnapping for extortion and personal injury. "If, during the ensuing kidnapping the victim's death or injury, the penalty shall be increased, it is understood that the aggravating operate when the cause of death or injury is not the activity of the abductor, but the very circumstance of kidnapping, otherwise they would be devoting a privileged type homicide ", these exceptional requirements make it impracticable to dogmatic figure, the equipment in the correct interpretation, always lead to simultaneous competition and heterogeneous with the crimes of personal injury or wrongful, as appropriate, in addition to the dangerous doctrine and case discussions in which they can raise the insolvency exclusion and subsequent implementation aggravated in developing the principles of lenity and the non bis in idem , approaches these that reaffirm, in one way or another, the failings of this standard that was introduced by Law 733 of 2002.
In the eleventh paragraph devote some qualities of the taxpayer. If the victim is or has been a journalist, community leader, union, political, ethnic or religious group, not only violates their personal freedom, but also commits an offense against different legal rights such as freedom of expression and information, the rights and freedoms policies, freedom of religion and conscience and, finally, the constitutional protection and pluricultura plurietnia.
This aggravation is justified also by the frequency with which such persons have been kidnapping. She takes place only if the plagiarism is running because of the actions taken by the taxpayer.
Act includes 733 candidates for elective office and public servants in the list of special taxpayers crime, aggravation, is repeated, it takes if the abduction was committed by reason or Because of the functions or activities.
In the twelfth paragraph codifies specific aggravating the use for the consummation of the kidnapping, "or arrest warrant to have it faked or simulated." We believe that this provision makes the competition irrelevant material deriving from the crimes of kidnapping and forgery of document material or ideological groups (Article 286 et seq.), and even between kidnapping and false impersonation (Art. 296). This controversial provision was also introduced by Law 733 of 2002, which can lead us from now to conclude that the addition of this law, rather than aggravate the kidnapping, what it does is promote, in one way or another, the abductor, as addenda to what it does is prevent the hijacker penalty is applied in competition with torture, murder, bodily injury or forgery.
Numeral thirteenth and fourteenth, also added by Act 733, one or other favors to convicted of kidnapping. Into force of Law 599 of 2000, ie, when there were these two paragraphs, the prisoner was applied, in addition, Article 58 Section 13 which states: "when the criminal offense was directed or committed wholly or partially from the inside a place of imprisonment for whoever is deprived of his liberty, or fully or partially outside the national territory. " Now, you can not give effect to this paragraph because, remember that Article 58 establishes a greater criminality special circumstances "if they have not been provided otherwise," and if you are already enshrined as circumstances of aggravation punitive damages for kidnapping, not be re-applied. Is to compare, Article 58 paragraph 13 and by the numbers cited above: "when conduct is committed in whole or in part from a place of deprivation of liberty" and "if the conduct is committed partly abroad, respectively.
The fifteenth paragraph, in our view, aggravated kidnapping to end an abhorrent practice that in the view of sociologists and criminologists, only occur in our country: the hijacked traffic. Is that the traffic of the kidnapped person during the execution of this ongoing crime is a growing practice criminal of the various organized crime groups, without any qualms, trade, commerce and "buy-sell" kidnapped.
The sixteenth paragraph establishes international protection of the taxpayer. It extends the derivation aggravated people with international or diplomatic protection, different or not they are protected by international humanitarian law. Developing and implementing the Convention to prevent and punish terrorist acts in New York (12 February 1971), which was adopted by Act 195 of 1995.
worth appellants raise two questions and are particularly important to the effective date of Act 599 of 2000. We refer to the adequacy of the "abduction" and the problem of favorability in response to crime as a permanent behavior expected of the kidnapping.
The kidnapping or abduction for marriage or sex erotic (enshrined in law 40 of 1993 and in art. 269 of Act 100 of 1980) had a special mental element. Today, it seems not clear whether this is a kidnapping, to pursue a purpose other than those set out in art.169, or is it a extorsive as would fit the description of that item, understanding that the purpose erotic -sexual is set to "do or omit something." We think this is a form of kidnapping, as we believe that the legislature's intention was not to distinguish it from simple, considering that was being considered as an attenuated form of this, not to include it as the extorsive that pursues different purposes. Moreover, because for us it is clear that anyone who "kidnapped" just looking for sex, for which deprives them of freedom but freedom does not influence the conduct of a sexual act by the victim or another, since in this event yes it would be before a kidnapping for ransom. The foregoing is without prejudice to the kidnapping competes with another offense against freedom, integrity and sex education.
under Title III and still referring to individual liberty, the Penal Code includes the known generically as illegal detentions, which are characterized by the qualification of an active subject, as it requires that the perpetrator is an official and which, moreover, in principle, has the power to detain an individual or keeping a person of liberty, only in the behavior becomes illegal when performed by a server abusing their functions, prolonging the detention unlawful initially set to the law, llenote without the legal requirements or denying, delaying or omitting the procedure of habeas corpus. In fact, the simple fact that the rates relate to detention as an agent excludes the particular crime, whereas if any of the planned or some similar behavior is performed directly by an individual who does not have the quality required by type, will be immersed another criminal offense, but not in an illegal detention, without prejudice to enable individuals to act as participants, an event in which no specific grade is required.
Later in Chapter 5 of this title, governing matters relating to those crimes that affect personal autonomy, so we can say that, but also affect the freedom, they do so indirectly, therefore do not harm the freedom of movement but the condition. Among them are torture (art. 178), the constraints (art. 182 and 184), forced displacement (art. 180), the hospital or clinic fraudulent asylum (art. 186), insemination without consent (s. . 187), trafficking of migrants (art. 188) and trafficking (Article 188A).
As far as the offense of torture, we must remember that the issue regarding the type always based on two fundamental points:
The indeterminacy of the active subject.
The uniqueness of the definition. It has been strongly criticized the fact that the crime of art.279 of the Code of 1980, which defined torture porn was unconstitutional rule the principle of authenticity, and in this way that of legality, while the term " torture "was not unique. Is that the crime of torture is an ingredient that distinguishes tacit subjective personal injuries of torture, consisting of the purpose of seeking to psychological injury, or something other than herself. Therefore, the rule provides that the pain or suffering should appear motivated by a consistent order to obtain information or confession from the victim, punish, intimidate or coerce.
Es bueno recordar, por último, que el legislador ha considerado que este delito, a pesar de ser pluriofensivo, debe lesionar o poner en peligro la libertad por vía de la autonomía personal, lo que supone que para concretar la antijuridicidad material debe aparecer prueba de la lesión o puesta en peligro de la autonomía.
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