Reflexiones sobre la constitucionalidad del delito de detenciones ilegales o secuestros sin dar razón de la persona detenida

Abstract

The aim of the paper is to analyze the arguments concerning the consideration of the crime of illegal detention or kidnapping without declaring the whereabouts of the person detained as a crime of suspicion. The need to pay attention to this issue shows, firstly, that the doctrinal and jurisprudential interpretations estimating that the mentioned regulation of this crime was constitutional, have not answered the objections to this position with the entry into force of the Criminal Code of 1995. On the other hand, art. 166.1 Criminal Code modified by Organic Law 1/2015, of 30 March, toughens the punishment of the crime of illegal detention without declaring the whereabouts of the victim and equates its penalty to the penalty for the crime of homicide. Consequently, the questions about the constitutionality of this crime are nowadays a current issue due to the reproval implied by the incorporation of a —supposed— suspicion either of homicide or murder, or of the disappearance of the detainee by not declaring his whereabouts.