ILLEGAL DETENTIONS AND KIDNAPPINGS
The crimes of illegal detention and kidnapping are regulated in articles 163 to 168 of the Penal Code.
Illegal detentions
The typical conduct of the crime of illegal detentions is contained in art. 163.1 of the Penal Code, which punishes the individual who locks up or detains another, depriving him of his freedom, imposing a prison sentence of 4 to 6 years. To appreciate this crime, it is sufficient that the detention involves a significant limitation of the victim’s ability to move.
The Penal Code provides for two attenuated modalities, which entail the imposition of a lesser penalty:
- If the perpetrator releases the prisoner or detainee within the first 3 days of his detention, without having achieved the proposed objective, the lower penalty in degree is imposed (art. 163.2 of the Penal Code).
- If the conduct consists of detaining a person for the purpose of immediately presenting him/her to the authorities, outside the legally permitted cases, the penalty to be imposed is a fine of 3 to 6 months (art. 164.4 of the Penal Code).
On the other hand, the Penal Code regulates a series of aggravated modalities for the following cases:
- If the confinement lasts more than 15 days, the prison sentence is 5 to 8 years (art. 163.3 of the Penal Code).
- If the defendant does not report the whereabouts of the detainee, the prison sentence is 10 to 15 years (art. 166.1 of the Penal Code). In this case, if the victim is also a minor or a person with disabilities or the perpetrator has made the arrest with the intention of violating the freedom or sexual indemnity of the victim, or has subsequently acted with that purpose, the penalty is imprisonment for 15 to 20 years (art. 166.2 of the Penal Code).
Abduction
Article 164 of the Criminal Code regulates the crime of kidnapping, as an aggravated form of the crime of illegal detentions, which punishes the illegal detention of a person (like the crime described in the previous paragraph), but with the particularity that the perpetrator demands a condition to release the victim. In this case, the penalty is imprisonment from 6 to 10 years.
The condition imposed to free the victim does not have to be economic, it can be of any kind and can be directed both to the victim and to third parties. For example, we are dealing with kidnapping when the perpetrator deprives the victim of his freedom and asks his relatives to pay a certain amount of money to set him free.
The crime of kidnapping has several aggravated modalities:
- If the kidnapping lasts longer than 15 days, the higher penalty in degree must be imposed.
- If the perpetrator of the kidnapping does not report the whereabouts of the detained person, the prison sentence is 15 to 20 years. If in this case, the victim is a minor or disabled person or the perpetrator has carried out the detention with the intent to attempt against the freedom or sexual indemnity of the victim, or has subsequently acted with that purpose, the penalty is imprisonment for 20 to 25 years.
On the contrary, if the perpetrator of the kidnapping releases the victim within the first 3 days, the attenuated modality is applicable, punished with the lower penalty in degree.
Aggravated modalities common to the crimes of illegal detention and kidnapping
Apart from the attenuating and aggravating circumstances previously mentioned, the Criminal Code provides for a series of aggravated modalities that are applicable to both crimes, when any of the following circumstances concur:
- If in the illegal detention or kidnapping the perpetrator pretends to be an authority or public official, or the victim is a minor, a person with disabilities or a public official in the exercise of his duties, the judge imposes the penalty in its upper half (art. 165 of the Penal Code).
- If the perpetrator of the illegal detention or kidnapping is an authority or public official who carries out the acts outside the legally permitted cases and without cause for a crime, the penalties are imposed in the upper half of the sentence, and can reach up to the highest degree (art. 167.1 of the Penal Code).
The same penalty is imposed when the public official or authority agrees, practices or prolongs the deprivation of liberty, does not recognize such deprivation of liberty, or conceals the situation or whereabouts of the victim, depriving him of his constitutional or legal rights, regardless of whether or not there is a criminal case. This aggravated form also applies to the individual who carries out the acts provided for in this section with the authorization or support of the State or its authorities.