“Of the illegal detentions and kidnaps” is how is titled the Chapter I of the Title VI of the Book II of the Spanish Penal Code (CP). For its location within such Title VI, we already know that they are two crimes, the illegal detentions and the kidnaps, that attempt against the legal good of freedom, enshrined as a fundamental right in the article 17.1 of the Spanish Constitution (CE).
The chapter object of commentary, is made up of six articles, nevertheless we will divide the present writing in three points: The crime of illegal detention; The crime of kidnap, and; The special case in which any of the above crimes is committed by authority or public official.
– The crime of illegal detention:
The basic type of the crime of illegal detention is regulated in the article 163.1, though this article 163 is compounded of other three points: In the second, is regulated an attenuated type; In the third, and aggravated type, and; In the fourth, the special case into which a particular detains someone out of the cases expressly envisaged by the law, with the end of making him available to the authority.
The article 163 says: “1. The private person who shuts or detains other, depriving it of his freedom, will be punished with the punishment of imprisonment from four to six years.
- If the culpable releases the shut or detainee within the first three days of detention, will be imposed the punishment inferior in degree.
- Will be imposed the punishment of imprisonment from five to eight years if the shut or detention has lasted more than fifteen days.
- The private person that, out of the cases allowed by the law, apprehends a person for immediately bringing it to the authority, will be punished with the punishment of fine from three to six months.”
Therefore, the crime of illegal detention may consist of two kinds of actions, to shut or detain. On the one hand, to shut consists in putting a person against it will into a enclosed space from which it cannot go out, as for example, the trunk of a car, or in a room, or any other place which can be closed. On the other hand, to detain has a broader meaning, for it simply supposes to impede that a person moves to the place which in this moment it wishes. Although it is also true that, in both cases the passive subject of the crime is being deprived of its right to freedom of movement, which, as we have already seen, reaches the rank of fundamental right in the article 17.1 of the CE.
Then, we can say now without being afraid of being wrong, that the objective type of the crime of illegal detention consist in shutting or detaining a person. On the other hand, the subjective type of the crime will require the concurrence of malice in the active subject of the crime, not being envisaged its commission by negligence. If in general terms, the malice supposes to want and know the elements of the objective type of the crime, or in the own words of the Spanish Supreme Court´s sentence (STS) number 4840/2022: “As it is argued in the STS of 16 June 2004 the malice, according to the more classic definition, means to know and want the objective elements of the pena type.” In the specific case of the illegal detention, the malice suppose to want that determined action or omission provokes the detention or shut of a person, without being necessary that this action or omission has an specific motive, as stealing it or entering into its home. In this instance, we can underpin our words the the Spanish Supreme Court´s resolution (ATS) number 5516/2022: “The penal type of the art. 163 of the Spanish Penal Code does not make any reference to purposes or goals, therefore, are irrelevant the motives (SSTS 1075/2001, of 1 June; 1627/2002 of 8 October).
Thereby, it is not necessary for the commission of this crime a specific kind of malice or a subjective element of the unjust, being enough with the fact that the accused has a clear idea of the illicitness of its behavior (SSTS 1964/2002 of 25 November; 135/2003 of 4 February). This is, the malice of the author consist in having knowledge of the privation of freedom of the passive subject with independence of the motives or intentions of the agent -that in its case may give rise to the corresponding concurrence of offenses (robbery with violence, sexual aggressions, forced entry…)- in the same way that the detention admits various ways of commission, not necessarily requiring force or violence (STS 53/99 of 18 January) since due to the broad terms into which is expressed the article 163.1 CP is allowed any means of commission (STS 1536/2004 of 20 December).”
It seems that, according all we have seen up to now, the crime of illegal detention can be only committed by direct malice, being left aside the possibility of its commission through eventual malice, in other words, in those cases in which the active subject thinks of the typic result of the action or omission as probable, and despite this, it executes it, or again in the own words of the STS 4840/2022: “the STS of 4 June 2001 says that the malice supposes that the agent thinks of a damaging result, of possible and not necessary causation and not directly wanted, in spite of which it is accepted, also consciously, because there is no renounce of the execution of the acts thought. It means that, in any case, it is demandable in the author the consciousness or knowledge of the high risk of production of the result which it action entails.” However, we should not wholly discard this possibility, for always that we talk about malice we talk about its two kinds, the direct malice and the eventual malice, although due to the own nature of the crime of illegal detention, this latter possibility seems to us unlikely, being difficult to find an scenario, even of laboratory, which can serve to us as an example.
We will not deeply talk about them yet, but in the attenuated type of the second point and in the aggravated type of the third point of the article 163, it is made reference to determined temporal duration of the illegal detention which will determine the application of the former or the latter, though without forgetting that the concurrence of other circumstances will be necessary too. This leads us to think on what should be the duration of the illegal detention to be penally relevant. In order to find an answer to such question, we have to look at what have been said by our courts regarding this matter. Summing up, they have regarded the crime of illegal detention of instant consummation, although they have excluded from its scope the cases in which the detention has been brief, without prejudice that the facts can be punished according to another penal type, as the crime of coercion. To underpin the above, we can use as examples two excerpts from resolutions of the Spanish Courts. The ATS 5516/2022 says: “In general it is demanded a minimum duration of the privation of freedom, excluding the brief detentions. But in any case, the crime of illegal detention, the basic, is not subjected to any temporal term and for this it is considered of instant consummation and permanent effects (STS 98/2016, of 18 February). And the Provincial Court of Gran Canaria´s sentence number 2443/2021 says: “It is an instantaneous infringement which is consummated from the moment the shut or detention takes place, although the time is a factor which should be assessed, since for the consummation is necessary a relevant minimum ( STS no 812/2007, 8 of October).”
Though the crime of illegal detention is considered of instantaneous consummation, the time which it lasts will be important, as we have already seen, for distinguishing it from the crime of coercion, for both are crimes which in general terms affect to the same legal good, the freedom. However, the crime of illegal detention affects to a specific privation of freedom, the freedom of movement. For underpinning the above, we can use an excerpt from the ATS 5516/2022: “The illegal detention and the coercion is true that generically preserve the same legal good, the freedom of the person. Hence, when the object is to distinguish between both the jurisprudence has regarded that they are in a relation of gender (coercion) and species (illegal detention), in a way in which the first responds to the principle of subsidiarity and only will be applied when does not concur another type applicable of greater gravity or by reason of its speciality. Besides, in other occasions, has been taken into account the concurrence of violence, envisaged in the article 172 CP, or the duration of the shut or detention. In general it is demanded a minimum duration of the privation of freedom, excluding from the type the brief or instantaneous detentions.”
And if we want to understand the difference between both crimes, being applied to a concrete case the Provincial Court of Valencia´s sentence number 835/2022, can help us: “Obviously, if the accused had had the intention of kidnapping the child, given the difference of age and the heftiness of each of them, he could have perfectly used much more strength and taken she from the place, but the accused only took her arm, while the child continued to grip the knob of the door with her hand (like she has manifested) and after when her sister arrived this gave a kick to the accused to make him to release Adelaida, something which did not achieve this result. However, when he saw that the mother of the children arrived to the place, who was also walking down the stairs of the house, the accused not only released the child, but he ran away the place as well.
The facts only lasted seconds, in which were produced all the incidents that are part of it.” Continuing such sentence: “In the Sentence nº 192/11 of 18 March, resolving the appeal: 2125/2010, we reiterated this criteria saying:
a) From the perspective of the legal good protected. The offense of the freedom of the victim, is more generic in the coercion and more specific in the illegal detention. In this is referred to the freedom of movement in the space, when either the subject is obliged to remain in a place or he is obliged to leave it, moving to other. Sentence of this Supreme Court; 7 of May 2006; 20 of January 2009; 10 of February 2009 and 27 October 2010.
b) With respect to the typified behavior have been underlined different characteristics in the objective:
1ª the typic action of the detention generally implies a material act of shutting, even not in a necessary way, for it can also consist in the impeding to move in an open space, the detention by mere immobilization (Sentence of the TS of 1 October 2009);
2ª for what is not unavoidable the use of force or intimidation which should concur in the coaction (Sentence of the Supreme Court of 2 November 1992 and 22 December 2009). But the unavoidable is that the constraint of the passive subject comes from an action of the active subject, being the behavior of this the cause of that for being objectively and, as later we will see, also subjectively, aimed to that specific end.
3ª What is related with the factor of time that, in the detention is usually translated in a persistence of the privation of freedom, being more characteristic of the coercion its manifestation as actuation of instantaneous effects. Such factor is not unavoidable either in the illegal detention, since it is admitted that it is of instantaneous consummation, being dissolved then, in the practice, the line which divides both crimes (Sentences of the Supreme Court of 27 February 2006 and of 22 December 2009). That is why, it is usually demanded a duration which reaches the undetermined canon of a relevant minimum (Sentence of the Supreme Court of 8 of October 2007).
c) With that is stressed the relevance of the subjective factor which gives sense to the behavior of the active subject. The functionality of the behavior to the strategy of the author insofar as this is precisely aimed to deprive of the specific freedom of movement of the passive subject. This criminal project is the only one demanded and have to be distinguished from any other motives concurring in the author.”
Following this doctrine, this Chamber considers that the facts to which we are referring, rather fit in the crime of coercion and not in the illegal detention in the degree of tentative, for there has not been proved that the accused had the intention of carrying with him the child, but what he attempted was to force the mother (obviously with a clumsy behavior) to give him money, something which obviously he would not achieve in this way.”
The duration of the illegal detention is also relevant when it is carried out along other crimes. In such cases, we can be in three different scenarios: 1) A concurrence of norms (art. 8.3º CP); 2) A medial concurrence of offenses (art. 77 CP), or; 3) A real concurrence of offenses (art. 73 CP). Let us see each of these scenarios. There will exist concurrence of norms, when the illegal detention is the strictly necessary to carry out the principal crime, like in robberies with violence, sexual aggressions, or forced entry. On the other hand, there will exist medial concurrence of offenses, when the detention lasts more than the time strictly necessary for committing the principal crime, but it can be still considered instrumental, its function is that the crime which causes it can be committed. And there will exist real concurrence of crimes, when the illegal detention adquieres its own autonomy for surpassing any kind of connection with the principal crime. The Provincial Court of Barcelona´s sentence number 4017/2022, although with different words tries to explain it to us too: “For offering an enough description of what is this indispensable doctrine, we take as reference the STS 740/2021, for it explains with clarity the dialectical difficulties of the different options which appear to resolve the question and, besides, it offers a panoramic exhaustive casuistry of the diversity of scenarios which can take place, with a lot of resolutions of the own court. It says to us, from the generic perspective: “The doctrine of this Chamber distinguishes two alternatives: i) concurrence of norms or apparent concurrence of offenses, when the privation of freedom does not exceed the ordinary which can be regarded natural to a crime of robbery with intimidation, in which case the crime of robbery absorbs the crime of illegal detention; and ii) concurrence of offenses in the rest of the scenarios.
Within the concurrence of offenses: i) it is regarded as medial if the privation of freedom exceeds this indispensable minimum but it is instrumental: it is exclusively at the service of the predatory acts; and ii) it is regarded as real in the cases where: a) the plurality of detainees imposes that solution for one of the detention will form the medial concurrence, being necessary to punish the others separately; b) the detention is disconnected from the robbery as an instrument: there is simultaneity, occasionality or the same temporal frame, but the privation of freedom becomes an autonomous and different objective disconnected from the lucrative intention; c) the duration of the detention surpasses the necessary”.”
Adding later the same sentence: “The fundamental rule to know if we are before a concurre of crimes or of norms has to be necessarily a judicial assessment by which, if the sanction for one of the crimes was enough to comprehend the whole unlawful meaning of the behavior punishable, we will be before a concurrence of norms; otherwise before a concurrence of crimes.”
We have to talk now of the rest of the points of the article 163. In the second point of the article 163 we have said that we find the attenuated type, since in the case of being fulfilled the requisites which are mentioned in it the punishment will be imposed in its inferior half. Such requisites are three, as the ATS 18581/2022 recall to us: “1) That it is the author who release the detainee or the locked up; 2) That the author has not achieved that which he sought to obtain through the detention, for otherwise the privation of freedom of the victim lacks any interest for it and its behavior is stripped of the giving up or regret that the norm tries to privilege and; 3) That the release of the victim takes place during the first three days ( STS 651/2020, of 2 December).”
Therefore, are excluded all those cases in which the release of the passive subject is for alien circumstances to the active subject, or when the passive subject is released after the active subject has obtained the goal pursued with the detention. For example the Provincial Court of Madrid´s sentence number 3769/2022 says: “This Chamber has established that when the situation of privation of freedom is interrupted as consequence of the actions of third parties alien to the own decision of the author, for either the intervention of the police, the own detainee or others private persons, is not applicable the privileged type of the article 163.2, since for this is necessary the will of the author of the crime in this sense, and cannot be presumed this will in any case.”
The next point of the article 163, the third, imposes a harsher punishment than the envisaged in the basic type of the first point, when the duration of the detention lasts more than 15 days. As we can see, here the duration of the detention acquires again relevance, this time not only to qualify the fact as illegal detention and not as coercion, but for imposing a harsher punishment.
And the last point of the article 163, its fourth, punishes the private person who out of the cases expressly allowed by the laws detain a person to carry it immediately before the authority. The cases into which is authorized a private person to detain another person, are the established in the article 490 of the Spanish Criminal Procedure Act (LECrim): “Any person can detain:
1º Who tries to commit a crime in the moment of committing it.
2º The delinquent in fraganti.
3º Who escapes from the penal establishment where it is complying the conviction.
4º Who escapes from the prison where it is waiting to be moved to the penal establishment or place where he has to fulfill the conviction imposed by firm sentence.
5º Who escapes when it is being driven to the establishment or place mentioned in the above number.
6º Who escapes being detained for pending cause.
7º The absent committed for trial or convicted.”
With what we have seen up to now, we have ended with commenting the said by the article 163. However, for ending the regulation concerning the crime of illegal detention, we have to see three articles more.
The first of them is the article 165, which says: “The punishments of the above articles will be imposed in its superior half, in the respective cases, if the illegal detention or kidnap has been carried out with simulation of public authority or function, or the victim is a minor of age or a handicapped person needed of special protection or public servant exercising its functions.”
Thereby, in the article 165 we find another aggravated type of the crime of illegal detention, with respect the basic type of the article 163.1, since in it are punished with the punishment in its superior half any of the cases envisaged in the article 163, if the illegal detention or kidnap has been executed with simulation of public authority authority or function, or the victim is a minor of age, or a handicapped person needed of special protection, or public servant exercising its functions.
On its part, the article 166 can be also regarded another aggravated type of the basic type envisaged in the article 163.1, but this time the motive of aggravating the punishment, is not in the deceit which could have preceded the illegal detention or the qualities of the victim. But it is based in the silence of the active subject with respect to the location of the passive subject. Besides, the punishment will be even harsher when the victim was a minor of age or a handicapped person needed of special protection, or the author had carried out the illegal detention or kidnap with the intention of attempting against the sexual freedom or indemnity of the victim, or had subsequently acted with such goal.
Concretely the article 166 says: “1. The convicted for illegal detention or kidnap who does not give the location of the person detained will be punished with the punishment of imprisonment from ten to fifteen years, in the case of illegal detention, and from fifteen to twenty in the case of kidnap.
- The fact will be punished with a punishment from fifteen to twenty years of imprisonment, in the case of illegal detention, and from twenty to twenty-five years of imprisonment, in the case of kidnap, when any of the following circumstances concurs:
a) That the victim is a minor of age or handicapped person needed of special protection.
b) That the author has carried out the illegal detention or kidnap with the intention of attempting against the sexual freedom or indemnity of the victim, or has subsequently acted with such goal.”
And lastly the article 168 punishes the cases of provocation, conspiracy and proposal. The three are only punishable when it is expressly envisaged by the legislator (art. 17.3 CP and art. 18.2 CP). And in the three cases what has been done by the legislator is to advance the penal protection, to cases which otherwise would go unpunished. The article 168 states: “The provocation, the conspiracy and the proposal for committing the crimes punished in this Chapter will be punished with the punishment inferior in one or two degrees to the envisaged for the crime committed.”
For ending, it would be interesting to remember what is said by the STS 308/2014 of 24 March, which develops the requisites of the proposal, and which in some degree would be also applicable to the conspiracy and provocation: “The jurisprudential doctrine has been manifested in relation to this crime, for example, in the sentences of this Court of 29 November 2002, of 25 July 2003 and 22 September 2006, which refer to the requisites of the proposal, as the appealed sentence recalls.
In first place, should exist express legal disposition in the case of the crime object of proposal (…).
These are cases in which the legislator advances the barrier of protection to determined legal goods, as in this case the physical integrity, by their special relevance, specifically punishing determined preparing behaviors which otherwise would go unpunished.
In the second place, the behavior has to consist in a proposal or invitation to a third person to commit such crime, always that that person had not decided before, by its own, the execution of the illicit (…).
In the third place, the proposal has to be referred to the execution of something possible, besides being the enough serios and effective to acquire penal relevance (…).
In fourth place, is indifferent that the proposer will or will not take part. The sentence of this Chamber of 29 November 2002 already expressed that the proposer may ask the third parties execute the crime in its company or its substitution.
In the fifth place, it is not relevant for the existence of the proposition that the invitation is accepted by the target or target of it. Unlike the conspiracy, the proposition does not demand the acceptation of the target, always that the proposal is serious and concrete, and the suitable target for the execution of the crime proposed. In reality, the proposal is a frustrated induction.
In the sixth place, the crime cannot initiate its execution, for in these cases it will be punished as attempted or consummated crime, and the proposer as instigator or coauthor, but the acts of proposition will not be punished separately being absorbed in the execution (STS 10 April 2003 )”.
– The crime of kidnap:
The crime of kidnap differs from the crime of illegal detention, in the condition imposed by the active subject upon the passive subject or a third party for releasing the detainee.
The article 164 states: “The kidnap of a person demanding some condition for putting it in liberty, will be punished with the punishment of imprisonment from six to ten years. If during the kidnap has taken place the circumstance of the article 163.3, will be imposed the punishment superior in degree, and the inferior in degree if the conditions of the article 163.2 are met.”
In relation with the above, the Provincial Court of Salamanca´s sentence number 182/2002 says: “The consolidated jurisprudence of the Supreme Court (STS 351/2001 of 9 March or the recent sentence 363/2020 of 2 July 2020) establishes that “the crime of kidnap (common denomination converted into nomen iuris) is an aggravated type of illegal detention in which the end of the privation of freedom is conditioned, by the authors of the crime, to the carrying out of a fact -action or omission- which is demanded. It is necessary, then, for the integration of the type of kidnapping, in first place, the privation of freedom of a person either shutting it or detaining it and, in the second place, that the authors warn to the passive subject or other persons that the recovery of the freedom depends upon the fulfillment of the condition imposed.”
In the case of the crime of kidnapping, it is also applicable what we have seen regarding the malice for the crime of illegal detention but with some nuances. Due to the nature of the crime of kidnapping, the CP has not envisaged its commission by negligence. But besides, in this case, we are sure that this kind of crime can only be committed when there exists direct malice, since the active subject should demand a condition for the release of the passive subject, something which clears any doubts with respect to the intention of its actions. Therefore, in the kidnap we discard any possibility, even of laboratory, which allows us to consider the commission of this crime by eventual malice.
We have to think as well, about the relation of the crime of kidnap with other crimes. The crime of kidnap is so characteristic, due to the clarity with which the subjective type of the crime is manifested for being possible to be qualified as such, that it is impossible to think in a medial concurrence of crimes (art. 77 CP) and much less in a concurrence of norms (art. 8.3 CP). Therefore, always that the crime of kidnapping concurs with other crimes, as the crime of injuries or sexual aggression, we will be before a real concurrence of crime (art. 73 CP), where each of the crimes has to be punished independently.
To the crime of kidnapping will be also applicable the articles 166 and 168.
– The special case in which any of the above two crimes is committed by authority or public official:
The article 167 states: “1. The authority or public official that, out of the cases allowed by the law, and without existing cause for crime, commits any of the crimes described in this Chapter will be punished with the punishments envisaged in these, in its superior half, being possible to reach the superior in degree.
- With the same punishments will be punished:
a) The authority or public official who, existing or not cause for crime, agrees, practices or prolongs the privation of freedom of anyone, not recognizing such privation of freedom or, in any other way, hides the situation or location of this person depriving it of its constitutional or legal rights.
b) The private person who has carried out the facts with the authorization, the support or consent of the State or its authorities. - In all the cases in which the facts to which this article refers had been committed by authority or public official, will be imposed to them, besides, the punishment of absolute disqualification from eight to twelve years.”
In the first point of the article 167 is punished the authority or public official who, out of the cases allowed by the law and without existing cause for crime, commits an illegal detention or kidnap. Besides, imposing a harsher punishment than the ordinary envisaged for any of the crimes envisaged in the chapter.
The cases in which an authority or police officer can detain are the included in the article 492 LECrim: “The Authority or Police officer will have the obligation of detaining:
1º To anyone who is in the cases of the article 490.
2º To who is committed for trial for a crime which has assigned in the Code a harsher punishment than the reformatory imprisonment.
3º To the committed for trial for crime with a less harsh punishment than the above, if its criminal records or the circumstances of the fact hints that it will not appear in court when it is called by the judicial Authority.
It is excepted from the envisaged in the above paragraph the committed for trial who gives in the act enough bail, at the judgment or the authority or police official who tries to detain it, to rationally presuppose that it will appear in court when it is called by the competent Judge or Court.
4º Who is in the case of the above number, although he is not committed for trial yet, if the two following circumstances concur: 1ª That the authority or police officer has enough rational motives to think in the existence of a crime which has the characteristics of a crime. 2ª That it has enough rational motives too, to think that the person who tries to detain participated in it.”
In the second point of the article 492 LECrim, where is mentioned to who has been committed for trial for a crime which has assigned in the Code a harsher punishment than the reformatory imprisonment, taking into account the Transitory Disposition 11ª of the CP, it is understood that the subject has to be committed for trial for a punishment greater than the imprisonment from 6 months to three years.
According to the article 17.2 CE and the art. 520.1 LECrim, a detainee should be put at disposition of a judicial authority within the first 72 hours from its detention. Surpassing the time set by the LECrim supposes a crime against the individual freedom of the article 530 of the Penal Code (CP), except when according to the envisaged by the art. 167.2 CP, besides being prolonged the situation of privation of freedom, this is not recognized or in any other way, it is hidden the location of such person.
Víctor López Camacho.
Twitter: @victorsuperlope.
Más en mi website: www.victorlopezcamacho.com