When the weapon is Inidónea in the crime of illegal possession of firearm

It must from this analysis, noting that the unjust before us, is within the Peruvian Criminal Code system, among the crimes against public security, being an illegal that is set when a person or agent is in possession of a weapon, ie, only the fact that possession of itself, constitute a crime, it is not necessary that there has been a result there is much less injury to a legal right. From this understanding is then to understand what comprises it pertains to the concept of public security and crime of abstract danger, so that from there we can discuss at length the offense. To this effect must be pointed out that criminal laws protect the overall safety and common response to the threat of who has and has at its disposal and command the appropriate means to enforce a harmful event to the security, while the State, which holds monopoly right to punish or ius puniendi should avoid the occurrence of any act contrary to public safety, from there you can then define public safety from a dual perspective: objectively, is the set of conditions guaranteed by the right, with a view to protecting the legal interests considered in the abstract and independent of the person of the holder, means for the protection of direct attacks on indefinite assets as life or property, that is a threat or risk circumstance that creates a real danger to persons and property while from a subjective face is the social group protected by the legal system.

In this sense, the public security offenses are those that create a hazard for other legal rights, and for whose integrity must ensure the state.

In our case, the crime of illegal possession of firearm, is thus characterized in predominantly harm public safety, usually through endangerment of other legal rights. The Colombian Pedro Pacheco Osorio, indicates that protection becomes broadly provides that criminal law, society in general. And is that all the crimes of our Code of Punishment, fulfill this function, this form of safety as feeling, belief or opinion, which is violated by all crimes directly, because when you commit a murder, a robbery, a encroachment, etc.. The generality of the people experience the fear of repeating the fact relevant to the detriment of any of them or the people that are appreciated, if left unpunished [1].

This will then have the legally protected interest in this offense, is public safety, understood, as is made explicit, such as normal and peaceful development of society [2]. Carlos Creus, from a position ex cathedra, tells us that the security policy, is legally protected interest in these crimes, adding that she is punished for such behavior can usually be conducive to the perpetration of crimes against the security policy, and although it is not so clear that direction of dual criminality in order to crimes of possession of weapons, Creus concludes that the legislator has chosen equally penalized, since security is threatened (...) [3].

Now to give a scope of what should be understood as a crime of danger, and then a brief scope of the crimes of concrete and abstract danger, employing the happy definition given by the maestro Enrique Bacigalupo Zapater, who tells us that the crimes of the type species dangerous legal under the external features of the action can be defined as those which do not require that the defendant's conduct results in damage to an object, it is sufficient that the order legally protected has been put at risk of injury to be avoided (the danger is a normative concept of nature in that the reference object is a legal right, but its foundation, as well as policy, is also based on a rule common experience or is, in turn, synthesized in a legal kind), or when you need a real possibility of the lesion-specific risk, or when, according to general experience is in itself a danger to the protected object - abstract danger. The former are always a result crimes, and crimes of the others are mere activity [4].

As outlined in sight of the crime of illegal possession of firearm, is a figure of abstract danger is not necessary for the production of a particular harm, it is understood that it is dangerous to society possession of weapons without for administrative approval.

On the other hand, following the teacher Edgardo Alberto Donna, who on the subject of tenure we express that this is another problem that occurs when a behavior typify the crime of possession of firearms, due to the weapon must be able to be used, according to their function or performance status, and is under test. If the gun does not work or is not suitable for running away all hazards, and hence is atypical behavior [5]. In support of this idea, the Supreme Court of Spain has held in a ruling dated April 25, 1994, "the demonstration of adequacy must be proven in an irrefutable manner, unambiguous and unconditional, so that if the accreditation does not exist , such a conclusion can be obtained through indirect evidence "[6].

It is then that if the investigation is proceeding against a defendant for this crime, has been practiced on the weapon seized, a forensic ballistics expertise, and it showed, that it is in fair or poor condition conservation (relative to the specific structure of the gun) and malfunction (inoperative), and to be as stated in the criminal comment is required on the part of the active subject a special relationship with the weapon possessed, this is not only physical possession of it, but not the agent can also have it temporarily, so it must be usable, because only then can threaten public safety, that if the prosecutor or police investigation conducted, the weapon seized from the accused person, structurally defects that prevent their use, so it has become safe, is not typical object, especially if such failure to be given the weapon used could not verify the danger that such possession might generate.

In conclusion, if the weapon lacks the capacity to be percussive or defects in its structure, making it unsuitable for its function, ie, inability to make shots, which the agent's conduct of the gun holder, it would be atypical, due to unsuitability of the weapon, and therefore, non-endangered or injury legally public safety.

By: JOSE ANTONIO D? AZ WALL





[1] OSORIO PACHECO, Peter. Special Criminal Law. Volume II. Editorial Themis. Bogota - Colombia. 1970. Page 22-33.

[2] 10/12/1999 Supreme enforceable. Docket No. 63-99, CAÑETE. In Dialogue with Law, Lima, Law Gazette, Volume 07, Issue 29, February 2001. Page 182.

[3] CREUS, Carlos. Criminal Law Special Part. Volume II. Editorial Astrea. Buenos Aires - Argentina. 1983. Page 30.

[4] Zapatio Bacigalupo, Enrique. Criminal Law General Part. Ara Editors, Lima 2004. Page 223.

[5] DONNA ALBERTO, Edgardo. Criminal Law Volume II Special Part C. Rubinzal - Culzoni Editors. Buenos Aires - Argentina, 2001. Page 108-109.

[6] CANCIO MEL1?, Manuel. Crimes against public order, in Rodr? GUEZ MOURULLO and JORGE BARREIRO, Comments on the Spanish Penal Code. Page. 1369.