Article 164 Spanish Criminal Code: Kidnapping

Article 164 of the Spanish Criminal Code punishes with imprisonment of six to ten years the abduction of a person where a condition is demanded for their release. It is the aggravated form of the unlawful detention of article 163, and the demand of a condition is what distinguishes them. The article incorporates the two modifiers of article 163: the penalty rises by one degree where the deprivation of liberty lasted more than fifteen days, and falls by one degree where the person was released within the first three days without the purpose having been achieved.

Wording of Article 164 of the Spanish Criminal Code

Elements of the offence

1. A deprivation of liberty with all the elements of article 163: confinement or detention without consent by a private individual.
2. The demand of a condition for release, which may be a payment, the performance of an act, the withdrawal of a complaint or any other requirement, and which need not be unlawful in itself.
3. That the condition was communicated, since the demand is what converts the detention into a kidnapping.
4. For the modifiers, the duration of the deprivation and, for the reduction, the voluntary release within three days without the purpose having been achieved.

Defence strategy

No condition was demanded. Where the deprivation of liberty was not accompanied by a demand, the offence is that of article 163, with imprisonment of four to six years, and the reduction for early release is more readily available. Detentions arising from disputes over a debt, over the custody of children or in the course of an argument frequently involve no communicated condition, and what the file records as a demand is often an expression of grievance. The precise words used are therefore examined closely.

The reduction for release within three days. The reduction of one degree applies where the release was voluntary and the purpose was not achieved, and it brings the sentence into a range at which suspension becomes possible. Establishing the exact hour of the release, and that it resulted from the accused’s own decision rather than from police intervention or the payment of the demand, is the single most valuable factual exercise in these cases.

Absorption by the principal offence. Where the restraint lasted only as long as the commission of a robbery or another offence required, it is absorbed by that offence and is not punished separately. Prosecutors habitually charge kidnapping in addition where a demand was made in the course of a robbery, and the defence measures the duration and the place of the restraint against what the principal offence required.

Participation and the individual role. These cases ordinarily involve several accused with different functions: the person who detained, the person who guarded, the person who communicated the demand and the person who provided the premises. The distinction between principal, necessary cooperator and accomplice under articles 28 and 29 is worth one degree of penalty, and it is established by identifying precisely what each accused did and when he joined.

• Article 163: unlawful detention
• Article 242: robbery with violence
• Unlawful detention and kidnapping
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.