aggravated murder.
Article 104 of the Penal Code establishes the specific circumstances of aggravation for the murder. They usually show greater offensive capability of the author and less sensitivity to a value so essential to society as life, certainly, there are several "modes" in our environment are addressed, from a legal standpoint in connection with the killing, the first of which regulates the killing of that provision. Generally
specific aggravating circumstances of murder collected manner, motivational or on a taxpayer determined that the law wants to give greater protection or that the law considers worthy of greater respect.
first thing to say in relation to the normative content of Article 104 of the Penal Code currently in effect, is that in previous encoding is called "murder", a term that, in our opinion, requires a huge emotional burden of censure and reproach against the author, but this designation has been removed from the Code of 1980, inter alia, for not conforming to the purpose of further legal technification conservation requires the name of the base rate.
are eleven aggravating circumstances set forth in Article 104 for murder, eleven circumstances repeats, which establish circumstances manners, motivational or on the taxpayer to raise the quantum of sentence, note that Article 103 establishes a penalty for manslaughter from 13 to 25, while that the said Article 104 the penalty is 25 to 40 attending, as we have said, in specific circumstances such manners, motivational or relating to the subject, which gives a greater degree of criticism and committed the murder. Without further ado, let's consider each of these ten specific circumstances that increases the penalty for murder, commenting and discussing the main technical and legal problems that their interpretation and implementation arise.
1. AGGRAVATED MURDER BY THE RELATIONSHIP BETWEEN AUTHOR AND VICTIM.
kinship guardianship
The criminal law must be proven with tests allowed by law, either through civil registration for permanent coexistence of the couple.
This aggravating concerns the indeterminacy of passive and active subjects of the crime of manslaughter. L For the purposes of the aggravated murder offense is passive and active specific subject.
Set when falls on parents) parents grandparents etc. Rule 43 cc), descendants (child, grandchild, etc.), Brother or relative within the fourth degree of consanguinity (uncles and cousins \u200b\u200bArt. 37 and 46 ibid), is legitimate or illegitimate bonding) Article 35.38 and 39 ibid). The aggravating factor is described in material terms, then then the same is set to a decision has been made in the subject asset or liability that would have allowed it separated from its adoptive family.
also when it falls on the spouse. The quality of spouse has since the time of marriage as an act of expression of consent in the light of Article 115 cc, until such time that a competent judicial authority statement emergence of a new status, that is, when occurs divorce (Article 152 ibid) or recognize a void (Art. 140 cc ibid.) as "the or permanent companion, "we must take into account the ruling C-029 of January 28, 2009 which declared conditionally enforceable this expression being understood as including the members of the same sex.
respect of the adopter and the adoptee, it preached Quine adoption took place and who is the subject of adoption only, as the civil relationship does not extend beyond compliance with Article 50 CC
Finally, preaching degree murder when committed against relatives to the second degree of affinity, that is, against the children of his or her spouse or against the son or daughter-in-law and brother in law (Art. 47 CC). As you can see, it only preaches self-affinity, however, when the bond between husband and wife is based on paragraph 1 of article 42 of the Constitution also protects those same relatives as such relationship is constitutionally authorized .
has traditionally been called "parricide" murderous action committed in ascendant, descendant, spouse, brother or sister, adoptive parent or adoptive parent or relative within a certain degree of affinity or consanguinity. It is a natural correlative qualification and legal subjects.
The first paragraph of Article 104 of the Constitution establishes a penalty of 25 to 40 years in prison if the act described in Article 103 ibid is committed "in the person of the ancestor or descendant, spouse, sibling, adoptive or foster parent or relative within the second degree of affinity."
The basis of this aggravating circumstance, that is, the reason for this acriminación particular circumstances, such as specific causal heavier penalty for murder, can not be other than that, in this way, not only is life threatening against human existence, but also, and particularly, in the fact that this pathway are unknown, infringing, striking the ties of kinship, against which special regard must keep all person. Obviously, this road is also reaching an attack on the family institution, the primary focus of society as such.
PÉREZ Professor reminds us that through this circumstance that increases the tort agent not only destroys the life (respect for which is the common need for conservation) but also violates the duty to respect the existence of relatives.
action violates the family ties of affection, solidarity, support and respect that bind the agent with the taxpayer. These circumstances show greater determination delict and disregard for the value inherent in the family bond.
The standard includes the relationship of inbreeding, extending to ascending and descending to any degree (sections 35 and 43 of CC) and the brothers, whether legitimate or not. The relationship by marriage is limited to the second degree, in accordance with the provisions of Articles 47 and 48 of the CC, comprising brothers, fathers and grandparents of the spouse. The marital relationship or by adoption is limited to the adoptive-adoptive relationship, irrespective of whether it is simple and full adoption (see Articles 277 and 278 of the Civil Code).
Let's analyze some hypotheses regarding the causal basis of knowledge or not they have such a link. In relation to knowledge of the link, we say that the principle of guilt, which rules out any form of liability, we must conclude that this is purely objective criteria for consideration of kinship at the level of this aggravating circumstance, since if you kill a stranger who was really a relative within enshrined in section, is liable for manslaughter, and not only for the configuration of this aggravating circumstance requires that the link exists, but it is known and what is more, that it is in effect as we will explain later. A
otherwise be presented when someone kills a family member who is believed, but actually is not. While there they are attacking the core of the family, the fact is that the ground is not set, because there is no requirement for this purpose, that is, the real existence of the link.
The truth is that the doctrine has developed two criteria that allow them to be presented in the following terms: first, has set the objective criterion, which states, simply allow the link to the homicide become a parricide, secondly, a subjective criterion according to which, to elevate a homicide to the level of parricide, is needed, not only the real existence of the bond, that is, that the link exists and really effective, but also that the link is known by the agent and be in force, that is, you live, you feel, in short, that the bonding between family members are real and not merely formal.
If you save a real link, current assets of affection, as in the case of one who knows that his father lives, and you know, but whom I did not link any bond, given that from the time of the birth father abandoned or left in an orphanage, not having to worry about his upbringing and education, in a scenario like the one we propose, we ask it not be excessive punishment as a parricide who kills father so distorted? We believe it is, and to legally justify our position not only invoke the principle of guilt embodied in article 12, but the illegality principle enshrined in Article 11 do not propose that such behavior should go unpunished, but merely to punish manslaughter title because in our opinion, such conduct will not be representative of harmfulness of parricide not actually injure or put at risk the good that is legally protected double life and the legal status of the family, as already explained. Let's talk
communicability of circumstances to members, and parts of a question of how it operates, in the case of aggravated murder by the first paragraph of Article 104, the communicability of circumstances provided under Article 30 of the CP, when the murder is committed by several people, one of which holds the parental relationship and the other party or not? Such is the case of one who for the purpose of inheritance, decides to kill his father and uses this to a friend. Based
in question here of personal circumstances, should be distinguished in the particular case under examination, if the personal circumstances represents an aggravating or mitigating:
If that family relationship is taken in conjunction with paragraph one of Article 104 of the CP, we conclude that it involves a circumstance of aggravation, in such a way that communicates to all participants that they had known, as is the case that if the friend knows patentizaría personal relationship that exists between who has proposed the murder and the victim, and things in this scenario, we must conclude that either one or the other, that is, the relative and the friend have to answer for parricide. It is clear that if the family relationship is not known by the companion may not be of the latter net of aggravating, and then the first answer for parricide, in this scenario, while the second will be held accountable for manslaughter.
To make clear on the concepts, solve the same problem but on the assumption of section 106, that is, with reference to offense of "mercy killings". A person wants to kill his father, to end suffering from severe injury or serious and incurable disease, and as you do not have enough courage to kill himself to his father, invite a third party to the right. For the third answer for compassionate homicide, will require him to attend in the same sense of piety that overwhelms the child, otherwise, if the child responds by killing pious, with a penalty of 1 to 3 years in prison, third answer at least for manslaughter, a sentence of 13 to 25, or aggravated murder (whether this hypothesis lends a price or reward) with a sentence of 25 to 40.
Let us now who can be active and tort liabilities of this figure.
For ascending or descending we understand those referred to in Article 43 of the CC: When the account straight line down the trunk to the other members called offspring, for example: parent, child, grandchild, great-grandson, grandson, etc. ., and when there is rising from one member to the trunk, is called the ascendant, for example, child, parent, grandparent, great-grandfather, grandfather, etc.
tort
This figure has no limitations, since it works for legitimate or illegitimate relationship and would have only the natural limitations imposed by the life cycle of humans.
spouse's death, which forms what has been called parricide improper or conyugicidio "is nothing but to kill the spouse, as understood by the person who is validly linked to another through a civil marriage or church, or Pérez says "spouse is the person attached to another valid marriage, ie, made to the full requirements or formalities of civil and canonical, so that can not be found groundless, and that is not affected nor for any causal and void, or for any relative nullity not resolved, with the reservation that the laws say. "
When it comes to the father's death said they welcomed the subjective test that requires not only the existence of the real basis of the bond, but the relationship is in effect, well, we are of the view that in the case of separated spouses, or even in the case of putative marriage, that is, made in good faith, had by this for a while and the invalidity of which is discovered after its conclusion, we must satisfy the principle of guilt, which requires knowledge of link and the principle of harm that requires the validity and timeliness of such a link, so we should not be inferred that the aggravating factor.
a topic of particular interest, arousing controversy within the national law is that which arises in the case of death of partner. Looking at the wording of the rule, which gives substance to the principle of criminality, we must conclude at the outset that life partner is not a concubine, the difference is that in case there is a spouse's concubine, which does not allow it move to degree status or permanent companion, because remember that the literal A of article two of Law 54 of 1990 calls for coexistence marital union between a man and a woman "without impediment legal marriage, "n the case of the concubine, such an impairment. Or permanent companion is one or the one with whom you have lived together without being married, with permanent life community, unique for a period not less than two years and the seat of criminality, must be met each and every one of these requirements to speak of aggravated murder and not manslaughter.
In terms of Articles 41, 44 and 46 of C, we say "brother" is the person who keeps to the other, a collateral relation, transverse or oblique, second degree, meaning, "which includes people who even do not originate from each other, yes descended from one common trunk because as argued Arenas "is the person they have in relation to another the same parents, or the same father or same mother, or what is, the blood in the collateral line in second grade."
Important in this part of the exhibition examine whether the standard blanket so-called "brothers" if the children understand siblings of the spouses conceived with a different person or current spouse, with respect to the other children (conceived in same circumstances), we conclude that there are blood relation between them, there is no reason to consider active or passive subject of aggravated murder, for So we think there is no reason for the deduction of the aggravating circumstance.
2. ASSOCIATED HOMICIDE.
In the second paragraph of the article we are commenting, it embodies a kind of murder that is connected with another crime. Such a connection is objective in nature, because it is the objective pursued by the agent that links a crime with another, is means-end relationship. Murder is the crime environment, while being prepared, provided or will be consummated, hide or secure the offense end.
The subjective element that generates the specific aggravating the agent proposes specific purpose of murderous action, preparing, facilitate or another offense, hide and secure their product or their impunity. Thus, more severely repressed ideological connection means to an end, or consequential, of murder with another offense.
connectedness is defined as "the psychological link, occasionally a geographic or circumstantial links to various offenses and may be: legal, which is what always exists in the formal contest of crime, for the various offenses that make up the competition are inextricably unit under a legal fiction, ideological, teleological or means-end, in which an offense is the case of the other, it is executed to achieve by this means the completion of the offense finally proposed. This occurs when an individual, to rob a bank paying him killed and then fulfill his plan, consequential, when once committed the offense is running another to suppress or eliminate forms of evidence, or ensuring the product of the first (such as destroying a document to suppress the evidence of fraud), and finally, casual, which is what happens when a crime is committed on the occasion of another, or when multiple crimes unit run on time, place and circumstances determinants, so closely related that, as with mutual injuries caused in fight ". ESTRADA VELEZ.
From the above definition, we can say that in the paragraph two of Article 104 of the CP provides for two forms of "related murder" as follows: in the first part establishes the ideological or teleologically related homicide, in the second, consequentially related homicide. Not enshrine the occasional murder related, since in such a case, you will be facing a typical case of such material and effective criminal types is regulated on the basis of Article 31 of the Statute Criminal repressor.
The first hypothesis (prepare, facilitate or) gives the murder constitutes a crime environment, making it irrelevant that the proposed offense intended to reach or not improved effectively; preexisting just this purpose to give rise to the cause of aggravation.
If the crime occurs so effectively, at least attempted, there will be competition for offenses as an aggravating circumstance does not understand or obtaining incriminating further result, only suppresses the purpose of the homicide.
The preparation of another offense technically stands as a case of criminalization of preparatory acts, given the extent of the medium.
common cases that illustrate this cause in the criminal practice, are in our death brought to rob the victim, because if it is killing a person to not be a witness in a process, which is a practice used with some frequency by criminal organizations, is a murder case no longer ideological but consequentially related homicide. Ideologically ASSOCIATED
HOMICIDE.
As noted, the ideologically related homicide is also called teleologically connected, and is one that shows a relationship means to an end, put another way, it comes to murder, is killed because it is considered and estimated by the agent the offense is that precisely the ideal means or mechanism to reach the realization and / or completion of another crime. Let us now
this offense in response to its elements descriptive, subjective and normative elements.
descriptive elements:
subjective elements:
regulatory elements:
3. MURDER BY THE CRIME OF COMMON DANGER.
this ground refers to crimes of common danger or could cause serious harm to the community and other offenses that are related to public safety, as well as crimes against public health. The reason for the aggravation, is obvious: to unleash a disaster, causing a collective danger of affecting others in action, implies of course a considerable more severe crime of murder.
As shown, there is here legislation an express reference to other provisions within the CP, allowing us to state that we are in the presence of a specific item type, legal-criminal in nature, as the third paragraph of Article 104 expressly refers to Articles 350 et seq .
Here we understand, the hypothesis that a person to kill another, causing a fire, flood, landslide, contaminated food or water, etc., And thereby, is not only attacking the life of that person who intends to kill, but, in so doing, it is endangering the whole community, in general terms. In other words, to kill means are used to enclose or behave commisive common danger.
hypothesis Although not come easily for aggravated homicide can theoretically arise, and taking into account that the reality is often overwhelm the imagination, the occurrence of these cases may surprise even more.
On the possibility of competition between the study and aggravated murder in the crime of common danger to public health or related, there are two doctrinal positions opposite each other that we will explain briefly:
For a sector, there is competition between material half the conduct and behavior so as the description of the basic rate of homicide does not include the means to use, so half the offense is not subsumed in the offense so much less in their circumstance of aggravation, which are nothing more than subordinate types, is that the aggravation arises not from the medium, but the nature of the legal attacked simultaneously, as claimed by Luis Carlos Pérez, Mesa Velasquez Barrientos, Rendón, among others.
Another area of \u200b\u200bdoctrine considers, Luis Fernando López Gómez Tocora and the head, there is no competition between aggravated murder and aggravated offense because half the killing by the means employed, it is punishing both the injury to life as the attack on public safety, which protects the title above. Precisely this is the reason of the aggravating circumstance, using half that endangers the safety of associates.
4. MURDER BY PRICE, PROMISE REMUNERATORA, NON-PROFIT, REASON Cur or futile.
The causal enshrined in Article 104 paragraph four of the consolidation of anti-technical somewhat more specific circumstances from which the legislature considers to be worse, both subjectively and objectively, homicidal behavior.
The reason for this circumstance, prevailing opinion is the greatest culpability for illegal conduct, as not representing the result is the main reason homicidal behavior drives, but the criticism material, which is opposed to selfish monetary concerns regarding the rights of the victim, whom he offends no reason to hate or resentment.
started saying that this provision is a lack of legislative technique, well, we attempt to overcome this problem we will divide our discussion into two parts: at first. We will review it for killing "for payment or promise of remuneration," and in a second time, the murder "for profit, abject or futile plea."
A. Murder by price or promise of remuneration.
Murder for payment or promise of remuneration, as we advance above, corresponds to what the old law called "murder" as you will recall, the murder was defined as the murder that was presented through another person, for had indeed been paid by someone who was interested in the fact materialize. The Romans called this crime "sicariorum crime" or "covenant or inter Preti. sicaruis. "
Essential to that set up the fourth cause of aggravation is the causal link between any of the grounds or mobile outlined in the rule and murder, as it must have been accomplished or at least run en grado de tentativa. Aquí se sanciona la vileza del móvil, la infamia y la bajeza de una agresión de irracionalidad extrema.
Estamos en presencia de un “homicidio por mandato”. El mandante es quien determina a otro a cometer el homicidio por precio y el mandatario quien ejecuta el delito por el interés de la paga. El primero suele conocerse con el nombre de autor intelectual o moral, el segundo con el de autor material o físico o sicario.
No vamos a abordar el conocido dilema de quién peca más “si el que peca por la paga o el que paga por pecar”. Bástenos decir con el profesor Luis Fernando Tocora que este dilema es fácil de explicar en los delitos contra la libertad sexual, for example, because people who abuse the condition of necessity that "sins for pay" is more guilty (more sinful if you will) because they put their pleasure or lust to buy the urgency of need. We believe that in the case of homicide, there is something of this perspective. The mastermind takes advantage of the urgency of the perpetrator and also must add, which adds to the fact his cowardice. So we think it is more culpable the mastermind, the principal, the agent or perpetrator, and that this must necessarily be taken into account by the judge at the time to individualize the sentence, in accordance with Article 61 of the CP.
Principal and agent are guilty, that is clear, but they are two very different guilt, who can not receive the same treatment as punitive. This management contract but has purpose and unlawful because it is no less true that the criminal background arise principal-agent relationships, relationships that are relevant to criminal law, let's see more detail:
If the perpetrator makes the fact agreed, this is murder, in agreed circumstances, we conclude that both account for aggravated murder, one as the mastermind and one as a principal.
If the perpetrator initiated action to kill, but did not reach the result by a factor outside his control, both attempt to respond in accordance with Article 27.
If mastermind "desist" from the proposal to the perpetrator and the withdrawal is appropriate and effective, that is, that the assassin has informed well in advance of the implementation of material fact, not even for answer attempted aggravated murder.
If, despite the abandonment expressed by the principal to the perpetrator, he decides to go ahead with the criminal enterprise, the causal link is broken and will only answer the perpetrator, but not aggravated murder but manslaughter, for it has not acted "for payment or promise of remuneration."
If the perpetrator can not perform the behavior for total absence of material object (the victim has died or left the country), reputaría atypical behavior for both the perpetrator as the mastermind.
If the perpetrator does not consummate inidoneidad made by the conduct, eg, using a harmless substance to the belief that it is poisonous, it the punitive treatment here is different: the perpetrator is not responsible for anything because that his conduct creates an unusual, but not for the mastermind, who will answer for attempted aggravated murder, as the incident was not due to a circumstance beyond his control, as provided in Article 27.
If the agent exceeds the limits of the mandate, for example because it kills with cruelty, the guilt of the principal does not change, because what aggravates the killing is not the way of performance but have done by wreck or promise of remuneration. One hypothesis apparently identical to the previous, but has some differences is if when the president goes beyond the limits of the mandate because it makes punishable conduct different, eg, when sexually violated the victim or possession of personal property owned before killing him. In this case, principal and agent liable for the killings, but the latter respond in competition with intercourse (art.205) and / or theft (art. 239).
If the president will be substantially exceeds killed when he was injured only agreed, here the gunman is responsible for the principal degree murder and felony murder. If the agent works without excess, but the injury is death, both liable for felony murder.
B. The homicide-profit motive or abject futility.
The profit motive is a desire to get some satisfaction that derives economic nature of the commission of murder. Let's make a clarification, from the moment that the second paragraph of Article 104 in its first part, establishes the "ideologically related homicide, we have to conclude that "profit" than it is here, can not be of a tort, because if so, is punishable conduct within the framework of the second clause and not within the first part of paragraph four the same article. Put it another way, if the profit under which the agent works tort, a crime is constituted independently, conduct punishable as a homicide related ideologically (as concrete, specific and clear of a "robbery"),
short, if some form of application is intended to give the "profit" contained in the first segment of the second part of paragraph four ` Article 104 of the CP, will say that it can not have a content or delict. So, let's see what the scope of application of this figure is very close and we could cite as examples of those who kill to inherit, who, not being a relative, has designated as a legatee, not to have to wait natural death of his benefactor, he is killed, or who kills another person with the belief that this is providing a service for someone else with whom nothing has been agreed in this regard, believing that it will be rewarded or paid.
believe that this provision was unnecessary. Abundance, not only by the narrow application of this paragraph, as I explain in extreme cases, but also because immediately afterwards the legislature considered the "abject and futile plea" as a specific circumstance that increases the penalty for murder, allowing us to conclude that those hypotheses in which are killed "for profit" which do not fall within the ideologically related homicide, may well be covered under the "abject and futile plea," that's why, again, can not see the need for the legislature, so independently, had foreseen the "profit" as a specific circumstances of aggravation for homicide. Reason
abject, as stated in the Dictionary of the Royal Academy, a subject "low, vile, miserable, humiliated", is a cause low or mean, as one who kills another for revenge. This is why the normally reprehensible abject baseness or vileness: pride, cowardice, greed or self-righteousness, merit increases the penalty when they form efficient cause of the murder. Reason
futile is why unimportant, trivial. Futility, according to the Dictionary of the English Royal Academy, is that "low esteem or importance." Which are trivial matters to the legally protected, they have little or no importance, such If he kills because it contradicts the physical presence of the taxpayer, his walk or laugh.
Put another way: if we challenge the motivation was to kill the verification of homicidal behavior, there will be cases when it is observed that there is proportionality and correspondence between the subject and homicide cases that are precisely in which the legislature considered legitimate harmful action, as in the "necessity" or "self-defense." However, there will be cases where there is a gap between the motive and the murderer result, when the imbalance appears to be something qualitatively consequentially seen as something so vile, low, mean, being in the presence of the "heinous reason," and when the disproportion is given in quantitative terms, as something insignificant, trivial, unimportant, we will be in the presence of "futile plea."
Example of a heinous murder on the grounds, there is one who comes in what the doctrine called "cross-retaliation", which is the killing that occurs when there is death to the loved ones of the enemy, on the understanding such a way that is causing damage to your enemy. Example of a murder for trivial matters, would be to give a person killed by a tamper, or for having released a compliment to the bride, for not paying a debt for having looked bad, because you scratched your vehicle in a traffic accident ...
5. Using HOMICIDE insanity.
The paragraph five of Article 104 confronts us with a criminal offense "multi-person" but "monosubjetivo." Indeed, two people operating here, two men (if you mastermind and perpetrator) but, unlike the murder by price or promise thereof, this will only half of the first, as will the second is diminished or annulled, the latter consideration which not only allows us to preach that it is of a criminal offense "monosubjetivo" but, from another point of view allows us to differentiate this particular circumstance of aggravation 'punitive murder, as provided for in the first part of paragraph four, where we talked about the "vicarage".
Aggravating this fact is the legal basis of higher degree of criticism that he deserves cause more intense damage from the point of view. For he to eat homicide uses a "tool" that has no knowledge or full will not only reveals its best offensive against society, but that puts the victim in less chance of defense, since before an attack of this nature is unprepared.
The term "drawing on the work of unimpeachable" does not require this to be immediate and direct perpetrator of the murder, suffice to some activity that favors or serve as a means of consummating the crime, is more, the activity may be unimpeachable in itself irrelevant, for example, opening a door.
According to Article 33 of the CP, is unimpeachable who at the time of executing the typical and unlawful conduct does not have the capacity to understand the wrongfulness or determined in accordance with this understanding, and psychological immaturity, mental illness, cultural diversity or states similar. The fact that a person uses a non-imputable to commit a murder, has been considered by the legislature as a specific circumstance that increases the penalty for such a figure delict.
6. HOMICIDE with cruelty.
In connection with the killing, the brutality means picking on the taxpayer, in order to causation of death, cause suffering not only unnecessary, but excessive. Excessive cruelty is cruelty agent to achieve the purpose APRA murderer. Not only in the death, but also to the suffering through unnecessary suffering. There, as he has called the doctrine, a moral cruelty, the author wants to indulge the suffering of his victim, is therefore the intention to murder mode of action, not only intention with respect to result in death, but also the manner in which the cause, which allegedly caused severe and unnecessary suffering to the victim.
Objectively, the ferocious brutality is useless for an immediate end to the murderous actions, but we believe that the cause should not be seen from the subjective point of view, and not interested in the enjoyment and pleasure of performing at the excessive suffering that follows the victim, as indicated by some sector of the doctrine, but this ground has to assess objectively.
immediately obvious reason for aggravated. Mayor deserves censure those who seek to torment the victim through the pain and terror by the means employed, is that there is, from an axiological point of view, killing one person shot, causing pain and mortification own bodily injuries determinants of homicide, causing her to suffer to do previously, intense, unnecessary and cruel suffering.
Clearly, if the brutality, as presented, it means torture for the victim, represented excessive cruelty, a cruelty, as I said, it can take two basic forms, depending on the media: can Use material resources physical suffering to the victim, but you can use psychic means of a psychological nature, such as when suffering from the moral is causing a person's death occurs.
Obviously, in this case, the problem is to determine the causality between the act of infringement agent (moral pain) and the resulting damage (the death of the victim, from and as a result of such an effect moral), is because the problem from the standpoint of evidence, but clearly there is a "moral cruelty."
Regarding the crime of "torture" referred to in Article 178 of the CP, and the possibility of competition with the murder, the doctrine favors the hypothesis of the complex crime. Torture is subsumed in the crime of aggravated murder, because his description has been transferred as an aggravating circumstance of murder for the title. This does not necessarily imply a more benign treatment, it must be taken into account that the maximum penalty for aggravated murder reaches the top edge of the penalty in Colombia, which is 40 years.
is clear therefore that there can be competition for aggravated homicide by Article 104 of brutality and torture sixth paragraph of Article 178 for two main reasons: first, that Article 178 notes ancillary nature of the offense contained in it; and second, because as torture a criminal offense "of mere behavior" is not required nor does it require the accrual of a material result in the phenomenal world, ahead of their own.
Another question that arises in the analysis of this provision is whether a single type may be structured criminal (not a "contest criminal types"), between the "brutality" and "intense anger or pain" enshrined in article 57 as a mitigating circumstance generic punitive. To ARENAS not seem feasible, in a specific case, were satisfied the qualification of aggravated homicide by cruelty to the mitigation of "anger and intense pain," considering this treatise that "passion and murders committed in the circumstances of Article 60 (now 58) are often accompanied by material brutality, cruelty apparent that the qualification does not authorize of aggravated murder, because these actions lack the subjective element that can be described as brutality. In such cases the active subject site blinded by the pain or anger, like a robot that is able to calculate the number and severity of the blows. Such brutality materials which is not ordinarily reveal the intent to cause excessive or unnecessary suffering to the victim, but on the contrary, the to end soon with her, which excludes any hint of cruelty. "
is clear that when the mediation of a "state of anger and intense pain" is, we in the presence of a homicide circumstance combined with the punitive generic attenuation of Article 57. Of course, this issue must be resolved not in the psychological level but in legal terms, since account must be not the way he reacts to ordinary humans, but face the fact or circumstance that causes the "state of rage and intense pain. "
7. EXPOSED TO MURDER VICTIM OR LESS.
This is a classic that aggravating has been based on the cowardice of the aggressor, who is seeking to insure against the reaction of the victim, the offender acts preordained by calculating the mode of its action, so the result can be achieved without risk to himself, and discouraging the victim. To do this, it behaves insidiously, hiding it or hiding their intentions. Criminal codes classic in style tends to casuistry, often referred to ambush, betrayal, treachery, putting a stumbling block as spies or hypothesis of this aggravating factor.
study of impeachment comes with two variants: one in which the author assumes the role of placing the victim in a situation of helplessness or inferiority, and the other, in which the victim is in this situation for reasons beyond the author, but this is used.
helplessness means that there is no possibility of defense by the victim, which may reflect considerations or both subjective and objective reasons.
"for subjective reasons helplessness" refers to the state of neglect, indifference or quiet the victim, ie the relaxation of attention, the decay of the attitude of defense. There helplessness for subjective reasons, for example, a person who, despite being armed, does not think that can even remotely be subject to an attack on his life, why cut your care or defense position, thus giving a greater chance of success in tort agent, as does the realization of his plan criminal.
"The helplessness on objective grounds" refers to the fact that the victim has no means to run his defense would operate even in the case, knowing who may be subject to attack on his life, temporary or structural situations, does not count, does not have at its disposal no means of defense (weapon) to defend his life.
The inferiority in turn, means that the victim does have any chance or means of defense, but in relation to the attack or the means or how it is executed, turns out to be significantly lower. In short, there is frank and open commisive disproportion between the means available to the offender, in relation to the defenses available to the victim, either by the way the attack has materialized (which curtails or limits the possibility of defending the victim), either because the weapon available to the perpetrator turns out to be, objectively, a much greater offensive capability than is available to the victim.
8. TERRORIST MURDER. In this kind of killing any person may be taxable of the criminal action because the ordinal not required any quality or condition. The subject officer is also unknown and may be Culqui natural person, whether or not they rebel groups because the only thing the legislature requires the conduct of an individual agent "for terrorism or carrying out terrorist activities."
The means used by the subject agent may be of any nature, although obviously suited to the objective proposed by the acting subject, single or plural, as the ordinal not require or preclude certain media. In our opinion, the commission form of action or act is positive because it seems difficult imaginasr murder "for terrorism or carrying out terrorist activities "in a negative way of commission or omission.
subjective elements typical of this behavior are the purposes of terrorism or carrying out terrorist activities, which makes the conduct more severe sanction.
Decree 2266 of 1992 in its Article 4 the following definition of terrorism: "He who causes or maintains a state of anxiety or terror in the population or a sector thereof, through acts that endanger life, limb or freedom of people or buildings or means of communication, transportation, processing or transport of fluids or by reasonable means driving forces capable of wreaking havoc .... " In this circumstance of aggravation murder becomes a means to cause panic, terror in the population or a part thereof, or the subject officer committed the murder to cause collective fear, chaos, angst, is the purpose or objective author. Different
is, we think, the hypothesis of murder committed "in carrying out terrorist activities, because first you consume and the effect of terrorist action or effect following the murder.
regard, the Supreme Court in a ruling dated May 28, 2008, File 27,004 MPAugusto J. Ibanez Guzman, said when presenting such motions as follows: The definition enshrined by the legislature for the crime of terrorism in Article 343 of Act 599 of 2000 (former Article 187 of Decree 100 of 1980) is intrinsically related to the effect of anxiety or terror had on the population derived from the threat to life security and public tranquility, and therefore it is clear that the mere likelihood of harm or the use of weapons, does not fit the terrorist behavior, which constitutes the essential requirement to trigger or maintain a "state of anxiety or terror to the population or a part thereof, is inseparable tied to the concrete materiality of acts capable of putting on "the life, physical integrity people or the media, transport, processing or transfer of fluids or driving forces.
Thus, the circumstance of aggravation contained in paragraph 8 of Article 104 of the Criminal Code, namely that the murder has been executed "for terrorist purposes or carrying out terrorist activities" should be adequate taking into account the typical elements of the crime of terrorism under the perception indicated.
regard, the Court has stated:
However, the expression terrorist purposes or development of such activities can not be interpreted from the concept that the average person has of them, or political, that although generally agree with the law, more often than not do not correspond to the meaning of the prohibition of the criminal.
Similarly, because those terms refer to value judgments related to the legal right, these formulas can not be interpreted from the point of view or print reading to consider in abstract terms that fear or anxiety or scared enough to turn a degree murder in a terrorist murder, with all the implications that this entails, including exchange of expertise. Precisely
to concepts such as fear or fear not constitute the sole reason for the ban, the Court stated:
"in the murder (for terrorism), the behavioral mode and the means employed, must threaten other legally protected, public security and peace, through which it seeks to preserve the general objective conditions that serve as inter-communication budget and normal activities of individuals in society. Furthermore, if the property is a terrorist so special subjective element of aggravated murder rate, however be reflected or engage in behaviors and means so externalized, as also in terms of aggravating the criminal law is to act and not of autor.”
Luego, la Sala, mediante una línea jurisprudencial que se mantiene, perfiló la conducta en los siguientes términos:
“(la finalidad terrorista) … no se logra por el solo miedo acentuado que sienta la población o un sector de ella, como consecuencia de las aisladas o frecuentes acciones de individuos, bandas o grupos armados; es necesario que ese resultado se consiga, en razón de conductas y medios para causar estragos (por ejemplo, utilización de bombas, granadas, cohetes, etc.), siempre que dicho uso produzca un peligro común o general para las personas, toda vez que además de la ofensa al bien supremo de la vida, se trata de amenazar otros bienes legally protected, such as security and public tranquility. "
These interpretations correspond to a systematic reading where the legal right not only gives meaning to the conduct, but recovers his purpose, not of course from an ontological view, but as teleological expression linked to the value that legally protects and guides the process of interpretation and subsumption type of behavior. The
so be it explains why the terrorist purpose or carrying out terrorist activities can not be understood as formulas that complement the type of murder in the abstract and semantic, or to modernize the type to locate in the language of a globalized world that can lead to the creation of formulas ethereal to subsume the most varied and dissimilar behavior.
It is understood, to find the true profiles of behavior, such as inter alia stated that the purpose terrorism or activities like that, are explained by the extent to which they are located as a threat to national security public, understood not symbolically, but as a process to create, consolidate and maintain the conditions necessary to ensure life and liberty of individuals.
Consequently, the crime of aggravated murder committed with terrorist objectives or occasion terrorist activities, is being committed by those who run in the context of actions aimed at causing a state of anxiety or fear among the population or part thereof, through acts that endanger the life, physical integrity or liberty of people.
Therefore, the fear or fear itself does not give meaning to such as these are the effects of behavior on the means used to cause havoc, destruction and devastation.
Under this perspective, historical events and collection of evidence that reports the file is possible to determine that the judges committed a substantive defect to infer the fact that increases the penalty for the murder, contained in paragraph 8 of Article 104 ibid.
Indeed, the factual analysis appears evident that the attempted murder committed by the accused against police officers in the circumstances of time, manner and place of occurrence do not have the necessary authority to bring or maintain status anxiety and terror to the people of La Playa or part of it, since the behavior of Bayonne Garay was directed to repel the armed conflict of the soldiers who attempted his capture, he fled the site previously had been extorting money from a citizen.
9. HOMICIDE internationally protected persons. The rules of International Humanitarian Law regarding the protection of persons and goods require the contenders in every time and place for certain behaviors as it relates to the treatment of wounded, sick, methods of warfare, etc..
The protection afforded by this standard begins its effectiveness at the time to talk about sick, wounded, shipwrecked, non-combatant and, within it, of course, the civilian population, which is protected, but carried the war effort, because it ceases to be non-combatants, to be a fighter.
We have said that Title II of this book refers to "protected persons under international humanitarian law", and in particular paragraph Article 135.
10. HOMICIDE AGAINST PUBLIC SERVANT. This rule protects the taxpayer of the action for the quality or legal or social connotations and hence holds is not sufficient attempt on the life of any person referred to therein, it is essential to be done "because it ".
The aim, then, especially and particularly to protect certain individuals, certain inhabitants of the country, under the assumption that the patented murder on one of them would be reporting to some extent, an act to destabilize the social order. Some writers argue that this rule ignores the principle of equality enshrined in Article 13 of l aCosnstitución, according to which all persons are born free and equal and deserve equal protection of the law (well, Carlos Mario Molina Arrubla, Francisco José FErrerira Delgado, Edgar Escobar Loperz, to name a few writers) and also holds, which is a standard class.
think the rule is enshrined as a success of the legislated and not this ignoring the principle of equality but instead "overprotection" of journalists, trade unionists, politicians, justices of the peace is given by the impact caused the homicide.
11. HOMICIDE AGAINST WOMEN BY WOMEN BEING. This aggravating factor was added by art. 26 of Act 1257 of December 4, 2008.
As soon obvious, given their new little or nothing has been said on this aggravating factor. Dare we say it is an aggravating factor that must be objectively regarded by judges and prosecutors, and aggravated the murder "if committed against a woman because they are women" necessarily go to the inside of an active subject, scrutinize his will, as an element of guilt, and more importantly in his intellectual part or in its knowledge
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