13 Dec Venezuelan Criminal Law
- Criminal Law Concept
- If you, or a family member or acquaintance is being held for a crime, you can contact us 24/7
- There is a fairly broad classification of different types of crime.
- The difference between a crime and lack.
- Crimes of action and omission.
- Simple, complex and related crimes.
- Instant and permanent crimes
- If you, or a family member or acquaintance is being held for a crime, you can contact us 24/7
- Crimes of public action and private action.
- Intentional or intentional crimes, guilty and pre-intentional.
- Other classifications according to the Venezuelan penal code.
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Criminal Law Concept
Venezuelan criminal law is the branch of law that establishes and regulates the punishment of crimes and crimes. crimes, through the imposition of certain penalties on those who commit them (such as imprisonment in prison, for example) and the restriction on certain rights of the accused; We can also say that it refers to the legal body to punish punishable conduct. The power-duty of the State to prohibit conduct that injures social legal assets, is what is called ius puniendi, is a Latin expression used to refer to the sanctioning power of the State. It literally translates as the right to punish or the right to sanction. The expression is always used in reference to the State vis-à-vis citizens.
Crime is the act or omission that sanctions criminal laws, it is a typically unlawful human act.
There is a fairly broad classification of different types of crime.
There is crime fraudulent for example, he who commits with conscience, that is, the author wanted to do what he did. In this sense, it is opposed to crime guilty, where the fault occurs from not complying or respecting the obligation of care having its elements that characterize them as they are: Action, Typicity, Unlawfulness, Imputability and Guilt, are components and characteristics, not independent, that they constitute the concept of the crime according to the types of subject that executes it (passive or active), action or act, omission or conduct, typicality, unlawfulness, imputability, guilt and punishability.
However, although there is a certain agreement regarding such a definition, not everyone attributes the same content to it. For there to be guilt, the following assumptions or elements of guilt must be presented: Imputability, Misdemeanor or guilt (forms of guilt) and, The enforceability of conduct appropriate to the prohibition or imperativity of the rule.
Every crime is considered a punishable act since it goes against a legal system that regulates it, in Venezuela they are considered in the fact that no one can be punished for a fact that was not expressly provided as punishable by law, nor with penalties that She would not have previously established. The punishable facts are divided into crimes and offenses. They are subject to prosecution in Venezuela and will be punished in accordance with Venezuelan criminal law.
The difference between a crime and lack.
We will take a tour of several criteria before defining it in Venezuelan Criminal Law so we can see how other lawyers classify them. First, between crimes and offenses there is a qualitative, essential, anthological, nature distinction, which is that crimes that violate or offend subjective rights, while the offenses violate the objective right, without specifically offending subjective right any; Another theory says that crimes cause damage or injure legal or legally protected assets, while faults do not cause direct material and effective damage to legally protected assets or interests, but only limit themselves to creating a dangerous situation for those legally protected assets, by establishing that the crimes cause damage or injure legal or legally protected assets, while the offenses do not cause direct material and effective damage to legally protected assets or interests, but only limit themselves to creating a Dangerous situation for those legally protected assets. What is a Danger situation?? is the probability that a certain damage is updated. In this criterion of qualitative type, in the Penal Code we can find, next to the offenses of harm, dangerous crimes, which are those that, without causing damage, create situations of danger for legally protected assets, as with the crime of water poisoning, provided for in article 365 of the Criminal Code: from the moment a person poisons the waters, he has already committed a crime, even if no one ingests the water that has been poisoned. The mere act of poisoning it means that the agent has committed the crime, since with such action he has created a situation of danger consisting in the probability that someone will drink water, be injured or die.
Therefore, it is not true that all crimes cause direct material and effective damage to legally protected assets since these dangerous crimes, which create a situation of danger for legally protected assets or interests, are provided for in the Law.
If we affirm that the legal system is primary, the acts that offend the public order should be provided as crimes and in our Criminal Code the offenses against public order are described in the Third Book, and if the public order were a secondary legal good, all acts contrary to public order, according to the criteria of this author, should be provided as faults; and, nevertheless, we find in the Second Book of the same Code crimes against public order. In our Criminal Code we find crimes and offenses against public order, the same legal good, which cannot be both primary and secondary. According to these expressed criteria, crimes offend primary legal assets; and faults, secondary legal assets. But in our Criminal Substantive Law we find crimes on the one hand and offenses on the other, plus one and the other threaten public order.
Given that the criteria of qualitative distinction between crimes and offenses fail before our Venezuelan classification, many criminal codes, including Spanish, embrace the most modest distinction criterion, which is the criterion of quantitative distinction, which addresses the species and amount of the penalty applicable to those who commit a specific infraction. In reality, this criterion of quantitative distinction between crimes and offenses is modest, simpler, safe to establish. Our Code does not meet this criterion. In order for the criterion of quantitative distinction to prosper, it is necessary that, according to the current Code, all crimes carry more serious penalties than offenses. Only in this way can it be affirmed that the crimes carry serious penalties and the offenses carry minor penalties. But it is enough to find a single fault that carries a more serious penalty than a crime, so that in that Code the quantitative criterion of distinction between crimes and offenses does not prosper, because it can no longer be said that all crimes carry more serious penalties than all faults.
In Venezuela the differences that exist are purely of structural placement, of placement in the Criminal Code: the crimes are foreseen in the Second Book and the offenses in the Third Book. This by virtue of a free decision of the legislator. This criterion of distinction is unscientific, empirical, because the logical, the rational, is to establish the quantitative distinction.
Important legal consequences derive from this structural distinction, which are presented below. Extradition is granted only for crimes and never for faults; The offense is punished, not only when it is committed, but also when it is attempted or frustrated, provided that it admits, by its very nature, the attempt and frustration. Faults are only punished when they are actually consumed. Finally, as regards the procedural order, to prosecute the active subject of the vast majority of crimes, the ordinary procedure must be followed, for which the Criminal Court of First Instance is competent; and, in elevation, the Superior Criminal Judge. On the other hand, to prosecute the author of a fault, it is necessary to follow a special procedure established in articles 413 and following of the Code of Criminal Procedure, in which the Judge of the Parish or Municipality is competent, in the first instance; and, secondly, the District or Department.
Within the classification of Crimes in Venezuela we will cite all those contemplated by the penal code within their current reforms.
Crimes of action and omission.
Action crimes are committed by doing something that is implicitly prohibited by the Criminal Law and the Venezuelan penal code. In action crimes, the unlawful result occurs by virtue of positive behavior, of doing something, such as killing a person. The crime of omission is consummated when the unlawful result occurs as a result of an abstention of the active subject, that is, when the latter fails to do something that is provided for in the criminal law, such as the one established in article 208 of the Venezuelan Criminal Code.
In this case, the public official incurs that crime of omission when, after acquiring, in the exercise of his duties, knowledge that a crime has been committed that must be punished ex officio, fails to report to the competent authority, which in this case is the judicial authority.
Simple, complex and related crimes.
Simple crimes they are those that offend a single legal good, or in other words: they are crimes whose action violates a single right or legal good, such as the crime of homicide, which destroys the legal good of life.
Complex crimes they are the ones that attack several legal assets, that is to say: the crimes in which the respective action offends several legal rights or assets, such as the violation of an honest woman, in which, in the first place, the legal good of the sexual freedom, which is the woman's ability to surrender to whomever she chooses; and secondly, the legal good of modesty is attacked, of honesty. On the other hand, rape of a prostitute is only a simple crime, because it only offends sexual freedom, since it retains the right to decide who to have sex with; although he has renounced, for his condition as a prostitute, the legal good of honesty. These two cases of rape are punished, but greater penalty will be applied to those who violate an honest woman.
Related crimes they are those that are so intimately linked that some are a consequence of the others. For example, the case of a person who steals and then, upon learning that an individual has witnessed the event, kills that accidental witness, to prevent him from discovering it. Undoubtedly, the initial robbery and the homicide perpetrated to cover up the theft are related crimes.
Instant and permanent crimes
Instant crimes are those in which the action ends at the same time the respective crime is consummated. The crime of homicide is instantaneous, since the action of the executor ends with the life of the taxpayer or victim. In permanent crimes, on the other hand, the executive process endures over time, that is, they imply a persistence of the criminal situation at the will of the active subject. Kidnapping, for example, is a permanent crime, because the executive process lasts as long as the kidnapped person remains deprived of liberty by decision of the kidnapper.
The distinction between instant crimes and permanent crimes It is of practical importance with regard to the calculation of the period of prescription of the criminal action, since said action is extinguished, among other causes, by prescription. The statute of limitations for instant crimes begins to run from the moment the criminal act is perpetrated, while, in permanent crimes, said period runs from the time the execution of the crime ceases. In the homicide, from the moment the taxpayer dies; in kidnapping, it does not run until the kidnapped person regains his or her freedom.
Crimes of public action and private action.
The crimes of public action they are those in which the prosecution of the active subject is completely independent of the will of the aggrieved person. The active subject must be prosecuted, even if the aggrieved party does not show a willingness to do so. Homicide, for example, is a crime of public action, in all its classes. When a homicide is committed, the State must prosecute the active subject, with absolute disregard of the will of the aggrieved person; in this case, of the relatives of the victim.
The crimes of private action they are those in which the prosecution of the active subject is subordinated to the instance of the aggrieved party or its legal representatives. They can only be prosecuted for accusation, as happens, for example, with the crime of defamation. The aggrieved party has ownership and availability of the criminal action; although for the forgiveness of the aggrieved party to produce legal effects, the acceptance of the accused is required. Sometimes it happens that the crime of private action, when executed under certain circumstances, becomes a crime of public action, as with the crime of rape when committed in a public place or exposed to public view.
To know if a crime is public action or private action, just consult the Venezuelan Criminal Code. When it is a private action, the Law expressly declares that «the prosecution shall not take place except by accusation of the aggrieved party or whose rights they represent, or in any other way that expresses the need for the aggrieved party to be able to prosecute the active subject.
Intentional or intentional crimes, guilty and pre-intentional.
Intentional (or intentional) crimes are those in which the unlawful result coincides with the criminal intent of the agent, as in the case of intentional homicide: an individual wants to kill another and actually kills him.
Wrongful crimes are those in which the agent does not intend to commit any crime, but rather the criminal act occurs because of recklessness, negligence, inaccuracy in his profession, art or trade, by the agent or because he leaves to observe the regulations, orders or instructions. For example: A, who drives a motor vehicle, prints at a speed faster than that authorized by the Regulations of the Land Traffic Law, and because of this excessive speed coils a person, who dies as a result of the injuries received . A, he did not want to kill that person, but he killed her for not complying with the provisions of the aforementioned regulation: he has then committed a wrongful death.
Pre-intentional crimes also called ultra-intentional are those in which the unlawful result exceeds the criminal intent of the agent. Suppose, for example. that A, wants to injure B and therefore punches him in the chest, which causes B to fall, who fractures his skull, hitting the pavement, and dies. A did not want to cause B's death, but only to injure him, but he killed him for the reason stated. Consequently, he has incurred a crime of pre-intentional homicide.
Other classifications according to the Venezuelan penal code.
Formal Crimes and Materials. Formal crimes are those that are perfected or consummated with a simple action or omission, regardless of whether or not the unlawful outcome pursued by the active subject or agent occurs. An example of this class of crimes is that of defamation, typified in article 444 of the Venezuelan Criminal Code in the following terms: «The one who, communicating with several people, gathered or separated, has imputed to an individual a certain fact capable of exposing him to contempt or public or offensive hatred of his honor or reputation, will be punished with imprisonment for three to eighteen months. So, if A tells two or more, people well at one time, because they are together, or one person at a time - that B is a thief because he stole a hundred thousand bolivars in the bank where he works, it can happen that the persons to whom A gave that information lend credit to the informant and therefore despise B, but it is also possible that they do not take into account his saying and, therefore, the reputation and honor of the defamed are intact in the concept of those. In both cases the crime has been committed, has been perfected; because, as already stated, it is sufficient, for that purpose, that the agent "communicating with several people gathered or separated, has imputed to an individual a certain fact capable of exposing him to contempt or public hatred, or offensive to his honor or reputation, regardless of whether or not the result pursued by the agent occurs.
Material crimes they are those that are only committed when the material unlawful result that is pursued is updated. The crime of homicide, for example, is only consummated when the death of the person against whom the agent's activity has been directed occurs. Before that person dies, one can hardly speak of attempted homicide or frustrated homicide.
Damage Crimes and Danger Crimes. Damage offenses are those that cause a material injury in property or in legally protected interests.
Dangerous offenses are those that, without causing material injuries, create a dangerous situation, a probability not simply the possibility of damage. We must make the distinction between the two previous words, which are not synonyms, by the way. The probability is closer to the update, to the effective realization, than the possibility. Example: "It is possible that Venezuela wins in 2006 the possibility of going to the soccer world cup, but it is not probable." The likelihood is closer to realization: a fact is likely when the number of possibilities of its occurrence is greater than that of the possibilities of its not occurring. Hazard offenses are classified, in turn, in crimes of common danger and crimes of individual danger. The first are those that endanger an undetermined number of people, such as the crime of poisoning the waters of a spring to which many people have access, because in that case all such people are exposed to physical illness, because of the effect of poison, and even death. Individual danger crimes are those that endanger an individualized person, such is the crime of abandonment of children: the person who abandons a child commits a crime of individual danger, such as that he has only endangered life or, At least, the health of the abandoned little one.
Common Crimes and Special Crimes. The common offenses by opposition to the special ones are those that are typified in the Criminal Code, which is the fundamental criminal law, although not the only one.
Special crimes, on the other hand, are those that are enshrined in special criminal laws (in their own or improper sense), such as: the crime of contraband, typified in the Customs Law; the crimes related to the check, which are typified in the Commercial Code (Art. 494); the crime of usury, provided for in Decree-Law No. 247 of 1946.
Flagrant Crimes and Non-Flagrant Crimes. A crime is flagrant when the agent who has just committed it is prosecuted by the authority or by the public outcry; or when he is surprised while he is committing it, or shortly after he has committed it, in the same place of commission or near him. It is said then that the agent has been caught in flagrante delicto, or infraganti. And it is not flagrant when none of the hypotheses stated above are fulfilled. More than a classification, this of flagrant and not flagrant, they are stages of the consummation of the crime. But this distinction is important from the procedural point of view for the following reasons:
As a general rule, in order for a person to be detained, it is necessary that the competent Criminal Judge has issued an arrest warrant against him, after complying with the requirements indicated in the Code of Criminal Procedure. But, nevertheless, when the offender has been caught in flagrante delicto, any authority should and anyone could stop him, even if he has not been given a detention order.
Individual Crimes and Collective Crimes. Individual offenses are those that can be perpetrated by a single individual and attributable. The logical and legal possibility that the crime can be committed by a single natural and attributable person is sufficient. In the case of an individual crime, such as the crime of homicide, rape, theft and most of the crimes provided for in criminal laws, which can be committed by a single person, without it being the contest of several imputable natural persons is necessary. However, the circumstance that in a specific case, one of these individual crimes is committed by several natural and imputable persons, does not detract from it, at all, its character of individual crime. For example, a robbery can be committed by several natural and imputable persons, but such circumstance does not take away their individual label.
Collective crimes they are those that cannot be perpetrated by a single natural and imputable person, but must necessarily be committed by two or more natural and imputable persons. It is a necessary and indispensable condition for the existence of a collective crime the contest of authors or agents involved in its perpetration. For example: a crime of crouching would be collective, in which several people gather to commit crimes. The quarrel is another collective crime, since two or more people have to participate, because nobody can quarrel with themselves.
Crimes of Indifferent Active Subject and Qualified Active Subject. The crimes of an indifferent active subject are those that can be committed interchangeably by any natural and imputable person, without requiring a personal quality. They are crimes of indifferent active subject: homicide, theft, among others.
The crimes of qualified active subject they are those that can only be perpetrated by certain natural and imputable persons, since they assume a certain personal quality in the active subject. That is, the possibility of being an active subject of these crimes is restricted to a group of certain people and, therefore, not everyone can commit them. For example, the crime of peculation, very common in our country, provided for in article 195 of the Criminal Code, can only be committed by the public official who, by virtue of his duties, is responsible for the collection, custody or administration of public funds. It could be said that the peculate is a crime of doubly qualified active subject; since not only the active subject of him must be a public official, but a public official who, by reason of his duties, is responsible for the collection, custody or administration of public funds.
Crimes of Indifferent Passive Subject and Qualified Passive Subject. The indifferent taxpayer offenses are those that can be perpetrated against any person, such as theft, homicide.
The crimes of a qualified taxpayer are those that can only be committed against a certain class of people who have a certain personal quality, which can be physical, family, social, legal. as the crime of seduction itself (seduction with marriage promise), provided for in the first section of article 379 of the Criminal Code, in which the taxpayer must necessarily be a woman older than sixteen and under twenty-one, knowingly honest. It is also the offense of a qualified taxable person, the honoris cause infanticide that can only be perpetrated in the person of a newborn child, not registered in the Civil Registry within the legal term, which is twenty days from the date of birth, according to the provisions of article 464 of the Civil Code.
Main Crimes and Crimes Accessories. The main crimes are crimes whose content is manifested independently of any other criminal form: they exist in and of themselves, that is, for their legal existence they do not need to rely on the prior consummation of another crime. Most of the crimes established in the Venezuelan Criminal Code are major crimes.
Crimes accessoriesOn the other hand, they are the ones that require, as an indispensable condition for their existence, having previously committed another crime. Examples of this type of crime are cover-up, which cannot be committed if the crime to be covered up has not been committed before; and the use of things coming from crimes, in which the agents popularly called “endorsers” are those who buy stolen, stolen, or in any other way wrong, which means that the individuals who sell such supporters objects, have been stolen or stolen before.
Types and Circumstantiated Crimes. Typical crimes are those presented in their pure legal, basic model, which only contains the essential elements of the crime and nothing else. For example: the crime of simple intentional homicide. It is, purely and simply, a person who has intentionally killed another.
The circumstantial crimes they are those in which the perpetration of the criminal act is accompanied by certain circumstances, in addition to having the essential elements thereof; and those circumstances are those that determine the greater or lesser penalty, as indicated by greater or lesser degree of perversity. Such would be, for example, the crime of parricide, which is the homicide perpetrated by the agent in the person of his father or some other ascendant, provided for in subsection A of ordinal 3rd. of Art. 408 of the Criminal Code. (It is not about killing any person, but the father of the active subject, and this is a circumstance that aggravates or increases the penalty.)
Sometimes there are circumstances that cause the reduction of the penalty, given that they show less danger; and, therefore, they come to mean an attenuator in the application of the penalty, as is the case with infanticide honoris cause, in which the circumstance that is perpetrated to save the honor of the victim's mother and in this case a penalty is applied less than that indicated for simple intentional homicide.
Fraud Crimes and Violence Crimes. Fraud offenses are those committed through cunning, deception. Classic example of this type of crime is the scam, (especially the one known in popular slang as "the Chilean package"), in which force is never used, but deception. The taxpayer willingly delivers the money or something else, in the belief that he is doing a good business and is scammed by the active subject. The crime of seduction with marriage promise is another crime of fraud. The agent does not force the woman older than sixteen and under twenty-one to have the carnal act with him, but rather deceives her by promising her marriage.
The crimes of violence they are those who, as their denomination indicates, are perpetrated through violence, force, such as robbery, rape.
According to criminologists, as civilization progresses, crime of violence decreases and fraud increases. This statement is ironic and even sarcastic, because here, today, they are increasing; in greater proportion the violent ones.
It is important not to forget that these classifications are not exclusive, but complementary. Therefore, crimes should be studied in the light of such classifications. If, for example, the crime of theft is perpetrated, it must be analyzed in relation to these classifications to place it in each of the classes, to which corresponding; Thus we see that the aforementioned crime is instantaneous, of public action, malicious, material, of damage, individual, principal, among others.
It must also be taken into account that the offenses may not in any way be of all types mentioned in said classification. If there is one of them that includes individual and collective crimes, and it is wanted to analyze or frame it, for example, the crime of theft, it cannot be said that this crime is individual and collective, because they cannot be framed within of the two cases. For this reason, or the crime analyzed is individual or collective. In the case of theft, it is an individual crime, because it can be perpetrated by a single person, although with relative frequency it is committed by two or even more people.
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Excellent article and summary of the Venezuelan Criminal Code, thanks for sharing this information.