CHAPTER II THE EXTORTION
CONCEPT: This is the constraint that the agent makes the victim to perform this behavior, active or omission, which is to procure an unlawful economic advantage to that.
violence is characterized by coercing the victim, intimidating, bowed down with fear. It is then a moral violence which operates psychologically producing a fear that will determine the conduct of the victim provides the physical object pursued by the offender.
LEGAL DESCRIPTION: The Article 244, as amended by Act 733 of 2002, Section 5, which essentially increases the penalty of deprivation of liberty and enter the pecuniary says
"Extortion. The which compels another to do, tolerate or ignore something, for the purpose of obtaining illicit gain or any gain illegal or illicit gain, for himself or a third party shall be liable to twelve (12) to sixteen (16) years and fine of six hundred (600) to 1200 (1,200) monthly legal minimum wage. "
This is the only item description governing extortion. The Code of 1936 was next to the specific figure of "blackmail", which was eliminated by the legislature, who said the distinction was not justified, being sheltered from the conduct described therein (Art. 407) in the single figure of extortion .
blackmail was characterized by the content or subject matter of the threats, which were the complaints against the honor of revealing secrets or personal privacy on establishing a somewhat more severe penalty than for extortion (Article 406 ), not very reasonable when you consider that it could mediate as the most serious threats are made against property and life.
ELEMENTS: Structure type the following:
a) Constraint.
b) Conduct of the victim (to do, tolerate or ignore something).
c) Purpose of obtaining illicit profit.
a) The constraint: the psychological situation is created by the actor on the victim, that determines the conduct of it, for fear of suffering the evils promised.
This situation is created usually by threats, violence is also known and moral violence, however is likely to encounter physical violence in extortionate conduct, but it should be clear that she should not determine the delivery, because then we would be facing an aggravated robbery by violence.
physical violence can be found must be aimed at supporting a threat, it would, with the fear of future evil threat announced that determines the behavior of the victim. It is in these cases, physical violence is essential to extortion, but a means to reinforce the threat, is itself essential to the structure of the typical behavior.
Raising the difference between extortion and theft, when this happens by means of violence against persons, we believe that it is not exactly the time between the threat and the transfer to the forwarding agent, it can occur, for example, a theft in which the gun is kept on victim's head for hours, while someone may threaten another in his life, if not go home immediately and gives you a certain sum of money.
In the first case the victim has no alternative, except to dutifully obey the offender, who thus becomes an instrument of action. Whereas in the other case, the threat to enter your home, if only for a brief time, have the opportunity to take other alternatives, and if not, act out of fear rather than outright compulsion to do so.
b) Conduct of the victim: This behavior assumes that the victim is relevant to the type. Is that she does, tolerate or ignore something that will eventually allow the agent illicit financial gain.
Within the verb do, fit verbs like give, send, place or otherwise make available. But it also can set the default item. No picking up something for the extortionist threat, leaving the thing at his mercy. Tolerance is a way of omission.
In the Colombian violence call, it was learned the form of "extortion" means of blackmail consists in threatening to kill the owners or occupiers of rural properties for leave, which got its name from the ballots that were sent consigning such threats. In this case the person leave his property, a way of doing. But many times they had to tolerate the invasion or disturbance property by threats of a similar nature without even putting this to the authorities such facts.
c) Purpose of obtaining illicit profit: this element common theft. It is a subjective ingredient type. Advantage of economic content, according to studied in the legally protected by this set of crimes.
If the purpose is different, you can not criminalize extortion. For example, A threatens B with bodily injury if you do not pay an old debt. B afraid to pay. There is here a view of illicit profit, since the payment is a lawful cause. Therefore there is no extortion, placing the act in other criminal, specifically, the illegal constraint (Art. 182), crime against personal autonomy.
GROUNDS FOR WORSE: The Article 6 of Act 733 of 2002, radically changed the Penal Code Article 245, adding 9 circumstances, which reflect the wide range of cases that our national offers in this area. Thus:
"circumstances of aggravation: The penalty specified in the preceding article shall be increased by one third (1 / 3) and the fine shall be three thousand (3,000) to six thousand (6,000) minimum wages monthly wage, if applies any of the following circumstances:
1. If you run your behavior towards relative to the fourth degree of consanguinity, marriage or the first quarter of calendar on spouse or partner or life partner, or by drawing reliance by the victim in the author or one or more of the participants. For the purposes provided in this Article, the affinity will be derived from any form of marriage or cohabitation. "
course is aggravating the family status of the taxpayer, or an equivalent of familiarity (similarity of confidence) because it involves a more objectionable, because of the proximity of the author to his victim and because it reflects more insensitivity to the author, for whom family ties even stop it in its disregard for the rights of others.
Introduces other hand, the Penal Code, in the premodern world of conservative free unions, or the postmodern free unions and other less conventional marriage classes, as might be gay and had been making its way in a world which relies on these basic forms of social relationship.
"2. When the conduct is committed by a public servant who is or who is or has been a member of the forces, state security".
extortion by the worsening quality of server public, which goes beyond the more responsibility it has to accept and perform the investiture. According to the Constitution, public servants have a dual responsibility that may result from violating the Constitution and laws, and omissions arising out of or overstepping in the exercise of their functions, while individuals only respond at first.
No need to explicitly include members of the armed forces and state security, as they are included in the concept of a public servant for all purposes of criminal law, as imposed by art. 20 of the Penal Code.
does not require the text of this aggravating circumstance, the endowment is used to commit extortion, this means promptly, as this would involve the criminal offense of extortion, an offense against public administration in that the author must meet the condition of server public and use its function to being misused, profit may correspond with those of extortionate behavior.
"3. If the constraint is run threat include death, injury, or kidnapping, or act which may result from calamity, misfortune, or common danger."
aggravating It supports the most seriousness of the threat of extortion, which damaged part of the legal rights of first order in relation to the individual (death, injury, kidnapping) to end collective damages (calamity, misfortune, or common danger).
No need of course, that threats are met to establish extortion. If fulfilled, will contest heterogeneous crimes, the crime or crimes constituting the threat and the crime of extortion.
"4. When committed for political purposes or constricting to another by threatening to make, supply, tolerate or ignore something.
extortion being an economic crime against property, economic order have to subsist, provided that the policy for advertising purposes or extortion, concurs with that of its own structure. If you miss this economic objective, the adequacy typical constraint might move to the illegal (Article 182 PC) or constraint to commit a crime (Article 184 ibid.).
"5. If the purpose or objective pursued by the agent is to facilitate terrorist acts by constricting to another by threatening to make, supply, tolerate or ignore something."
Spread the account of the aggravating extremely reprehensible purpose of contributing to terrorism. This phenomenon is indeed reprehensible conduct, which spares no victims or their number or their role in relation to the conflict between victim and victimizer.
" 6. When they affect severe property or professional or economic activity of the victim. "
This is aggravated by the far-reaching damaging of extortion, an offense that being economic, but it is necessary to recognize its pluriofensividad, as also suffered personal autonomy, can cause injury to that good, in degree of prostrate or significantly reduce the victim's occupation or economic status.
"7. If you make in person who is or has been a journalist, community leader, union, political, ethical or religious, or candidate for elective office, because of this, or is or has been a public servant by reason of their duties. "
It increases the penalty for the role of the victim, which in our country, in these cases has been selected by the different armed conflict and organized crime groups, such as white-political offensive strategy , terrorism and mafia, "because of the status they hold. However, it also applies to individual authors, to the extent that extortion directed at those people, for the role.
"8 If you make using arrest warrant or forged or pretending to have it or pretending investiture fingiere from public office or belong to the police. "
This is a cause that tends to protect the faith in public authority, so often disappointed in this type of crime. It is common for extortionists to preach to be agents authority, and even carry documents to effect arrests, which eventually become false, to facilitate the exercise of their extortion.
"9. When the conduct is committed in whole or in part from a place of deprivation of liberty. "
mode It has become common for prisoners to continue their criminal activities from prison. His knowledge of the modus operandi, its connections with regular people in the crime, the harmful influence of the prison itself, which reinforces its status as deviant and often develops ties and techniques of crime, has allowed this variant of the crime.
"10. If the conduct is committed partly abroad."
is not clear why this aggravating circumstance. It may have been taken into account border spillovers of our crime, and claims of neighboring states to put our criminals to heel.
"11. In different internationally protected person or not international humanitarian law and diplomatic agents of those identified in international treaties and conventions ratified by Colombia. "
This ground points to the strengthening of the protection of internationally protected persons, because they have also been selected for their status as preferred targets of armed groups in conflict, or by organized crime. They include not only the persons protected by international humanitarian law, diplomatic agents, but also those that are brought in additional treaties and international conventions signed and ratified by Colombia.
RELATION TO OTHER CRIMES: This is an important aspect in this offense for the specificity of these relationships that can lead to confusion (with the aggravated robbery) or ligadamente occur in practice (kidnapping), or demonstrate a high structural similarity (concussion).
With Concussion: Concussion has been said is extortion by a public official or public employee, taking advantage of public authority. Article 404 of the CP is located within the crimes against public administration that brings offense:
"Extortion. The public servant abusing his position or duties, compels or induces someone to give or promise at the same server or a third party, money or any other improper use, or request, be liable to imprisonment of six (6) to ten (10) years, a fine of fifty (50) to hundred (100) legal monthly minimum wages, and disqualification for the exercise of public rights and functions of five (5) years to eight (8) years. "
As can be read using the same verb of extortion, constrain, but adds another, alternatively, induce, which extends coverage to cases not intimidated (applications, innuendo, deceit), it could not happen to the crime of extortion, be restricted to limited constraint.
The active subject in the concussion is qualified, and that's the main difference with extortion. A public servant has been determined by Article 20 of the Penal Code. Includes doctrinal consensus as to both the officials of law as to fact. In the case of a usurper who perform the behavior constraint for economic gain, there would be extortion, but extortion, the usurper can not be considered a public servant in any way, if such a simulation or theft does not intimidation, but the error would then be located in the scam.
In these cases, the problem of extortion contest to crimes of usurpation of public functions (Article 425) or the simulation of investiture or position (Article 426), which we believe must be resolved adversely, by that such behaviors are the means of committing that crime, being unfair his double penalty.
with aggravated robbery, theft is qualified by the violence on the people, precisely because of the exercise of violence in both crimes in many cases makes them confused. And to consider the constraint as a typical structure, we refute the claim that the difference is given by the length of time between the exercise of violence, and empowerment or operative conduct of the victim in the robbery is said to be immediate, while extortion is significant.
The fundamental difference is the scope of the violence. If it closes at the victim, so she has no alternative but to submit to violent action, and is working actively in their dispossession of assets, we have theft. It says it has become a mere tool of the active subject.
If, however, retains alternatives, such as going to the authority, refuse, without incurring the download of imminent violence ", or similar, we face extortion.
Using the classification of violence, we argue that in the theft, physical violence is exercised, which is not always effective, but also includes the implied or "vis compulsion", which coerces an absolute way to victim, so that if you refuse or resist, is exposed to imminent violence effectively, as when he refuses to give up his portfolio by taking on a knife into his abdomen.
In extortion, the victim acts out of fear, but not by the physical constraint of the previous example. Violence is compelled relatively as it lets other options that do not involve physical violence that is imminent. This is therefore a moral violence, which basically intimidate the victim, but not coerced absolutely,
established within the composition of the type, the behavior of the victim as an element, which is not only " deliver ", but" do, tolerate or ignore something, "which in any of the three equity shares involves a provision. This does not exist in the theft as a key note in which the victim may well be a continental distances where the action unfolds.
delivery note can not serve differential for we have seen in the above example how can the victim in cases of theft make available or deliver, and to diligently belongings.
One difference, although from another angle, and in general, including theft and extortion, is that the former only occurs on furniture, while the latter can also occur on property.
With the kidnapping: In actual practice the main threat with which constrains the kidnapping extortion. Hence the title of crimes against individual freedom and other guarantees include an offense called "Kidnapping for Ransom" (Art. 169), in that bind the conduct of kidnapping (seize, remove, retain or conceal a person) with extortion (compel others to provide an illicit gain, keeping the threat of deprivation of his liberty, or life-threatening personal integrity). It also includes the kidnapping for extortion purposes for advertising, political or profit in general.
is a complex type, which therefore excludes the assistance of kidnapping with extortion. This is true as soon as you try to get an economic benefit because of being different, such as advertising or politics, specifically devoted to read "... or for advertising purposes ,...", political or not fit to play the extortion, a crime that protects the economic assets. Nor can ask the competition if the proposed use is different from economics.
Says Section 169 , as amended by Section 2 of Act 733 of 2002:
"Kidnapping for Ransom: who wins, removes, withholds or conceals a person, with the purpose of demanding for their freedom a benefit or utility or to be made or omits something, or for advertising or political, be liable to imprisonment of twenty (20) to twenty (28) years and a fine of two thousand (2,000) four thousand (4,000) wages legal minimum monthly wage. "
A major controversy around the time consumed extortion, which is reflected in statements today divided in our Supreme Court. On failure of the April 8, 1986, the Court stated that". .. just because someone threatened to do, tolerate something does not mean that crime is consumed, if there is no such conduct. "Within the respective arguments most of the Criminal Chamber of the Court, concluded that extortion as written in our legislation is a criminal type of outcome, specifically to do, ignore, or tolerate an act attributable to the victim or someone it connected. Specified that it was not the result of getting the illicit profit, that was just inserted into the subjective ingredient type, whose presence distinguished constraint basically illegal as attack on personal autonomy.
As a corollary, the Court stated that the crime of extortion of Article 355 of the Code of 1980, may be attempted, when failure to achieve the positive act, omission or tolerant of the standard spoken. And this attempt is given, having been deployed when the threat, the taxpayer does not meet active, passive or blind eye to it, not contributing to the extorsive in the dynamic que la víctima presta su concurso, si bien con voluntad sojuzgada, para la consumación del delito.
Para la minoría de la Sala, la extorsión es entendida como delito de resultado en cuanto se exige un constreñimiento pero es de peligro en relación con el bien jurídico, en cuanto no hay necesidad de obtenerse el provecho económico. Con respecto al constreñimiento como resultado lo percibe como "... que el acto violento que da lugar a la acción, penetre en la órbita sensitivo-afectiva del titular del bien". (Ver Anexo No 6).
Al final de cuentas, ambos sectores convergen a la necesidad de un resultado, aunque divergen en su identificación: for some constraint, for others the act of constrained in the direction of constraint. This determines the issue of the attempt that the event is accepted by the majority of the Board because the threat did not conduct follow the will of the subject asset, but went to the authorities. For the minority of the crime was consummated, as the person had been effectively constrained, and what might be done after it was no longer relevant to the structure of the type.
We are attracted the majority position of the Board, to the extent required for the consummation of a more structured extortion in connection with what is known and defined as conduct extortion, not as mere threat that could undermine economic assets. Extortion contains in essence the conduct of the taxpayer.
Without the presence of the act of the taxpayer's conduct can not be structured extorsive: "to do, tolerate or ignore something." This is an essential notion that tore historically violent extortion theft. The conduct of the taxpayer comes into play then the dynamics of extortion. Is inserted into its structure. Only when it happens we will have accomplished the crime. Leave the consummation in the moment of sensory perception and emotional is to criminalize the mere threat.
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