La orientación a la víctima en el delito de asesinato

Abstract

The central focus of this PhD thesis is to analyse the performance of the victim-orientation criterion in the crime of murder from its double perspective: on one hand, as a basis for a reinforced protection of the victim through the criminal rules (in this case, the elements of murder and its specific circumstances) and, on the other hand, from the point of view of the Homicide precipitation. To arrive at this analysis, which is carried out in the last chapter, the research is developed in two parts. The first part analyses the crimes of homicide and murder from the perspectives of their historical evolution (Chapter I), their criminological consideration (Chapter II) and the most relevant criminal policy issues (Chapter III). In terms of historical evolution, the research concludes that the first manifestations of aggravated homicides that still survive are treacherous murder and those committed by mandate. Both would have in common a greater danger for the victim, in the first case because of the manner of commission and in the second case, because the attack comes from a person with whom there is no conflict. During the codification period, the crime of murder underwent a process of simplification of circumstances, from the large amount in the 1822 PC reduced to the three collected in the 1995 PC. The trend was reversed with the 2015 reform, due to the introduction of a criminal policy influenced by punitive populism, clearly manifested in the reintroduction of the penalty of life imprisonment, which had been disappeared from our system since the 1928 Penal Code. The criminological study of the phenomenon of homicide shows a great influence of the context in which the death occurs, which is why in current classifications criminology displaces the perpetrator's motive in favour of the following criteria: the interpersonal dimension, the relationship with other criminal activities and the socio-political framework. In Spain, homicide with an interpersonal dimension is the most frequently committed homicide (75% of cases), followed by homicide committed in criminal contexts. Women are overrepresented as victims of interpersonal homicides and in the context of sexual crimes. The phenomenon of femicide shows the influence of informal systems of social control. There is currently a trend towards greater punitiveness of intimate femicide, more pronounced in the jury courts than by judge. The second part of the paper focuses, firstly, on the most problematic aspects of the implementation of the new multilevel gradation system and the new elements and circumstances of murder introduced by LO 1/2015, of 30 March (Chapter IV). Given the difficulty of finding a clear criterion for differentiating between treacherous and special vulnerability, it is proposed, on the one hand, the incorporation of special vulnerability as an element of murder and, on the other, the elimination of life imprisonment as an unique penalty in art. 140 PC. It then proceeds to critically analyse the grounds for aggravation in the light of the traditional criteria of dangerousness and blameworthiness, concluding that, in addition to not being sufficiently defined, they entail a moralising risk (Chapter V). Finally, we come to the central question of the research, where it is proposed to base the elements and circumstances with a victimological orientation, from two points of view: firstly, as a criterion for basing the elements of murder and its specific aggravating factors, because the special danger in which the legally protected object is found shows the need for reinforced protection of the victim, either due to their personal characteristics, to certain conduct of the perpetrator or to the context in which the act of killing takes place. Secondly, as a criterion for interpreting the elements of murder in terms of the victim's own contribution to the crime. The research concludes with a detailed analysis of the performance of this double perspective in intime homicide cases perpetrated by battered woman. It is concluded that the reinforced protection of the victim is not sustained when it is the victim himself who has generated the conflict that triggers the homicidal action, by placing the subsequent perpetrator, due to previous and/or continued aggressions, in a situation of danger for his most important legal assets.