Does expressing “I have a gun in my pocket” and placing your hand at your waist constitute an imminent threat of the crime of robbery? | The law

Around five o’clock in the afternoon, a 13-year-old teenager was walking around the Lins neighborhood. Suddenly, someone grabbed him from behind and threatened him with a gun, which he said he had in his pocket. He then forced him to hand over his belongings.

After the events, the subject was arrested and prosecuted for this crime for several years. So the case reached the Supreme Court through an appeal to quash, that is, the Supreme Court Justices considered the facts of the case.

What is alleged in the annulment complaint?

The Ministry of Public Affairs appealed to the High Court for annulment, as the High Court did not accept as a threat the intimidation carried out by the accused against the youth, despite the fact that he grabbed him from behind to intimidate him.

Likewise, he held that hugging a minor and telling him he had an iron in his pocket constituted an imminent act of the crime of robbery.

Lines below, the prosecution stated that such an expression made the teenager vulnerable. He also argues that an invincible threat is not necessary, but merely appropriate or effective in achieving the goal pursued by the active subject, since the victim must believe that there is a definite possibility that the evil threatened will be carried out.

Basically, the Supreme Court found inconsistencies in the juvenile’s story, that is, there was neither uniformity nor persistence in his story, since the juvenile initially said that the accused approached him and threatened him, claiming that he had a weapon. he must give him his things. He then said the defendant only approached him and asked him to hand over his belongings without showing him a firearm.

On the contrary, the Supreme Court held that the juvenile’s account was consistent with respect to the seriousness of the threat made, as the defendant held him by the back and told him he had a gun and that he should hand over his belongings, apart from the gesture of wanting to pull something from his waist.

Likewise, to justify his position, he referred to Plenary Agreement 5-2015/ICJ-116, the content of which establishes that the threat must be immediate and certain, i.e. to report a corresponding danger to the life or bodily integrity of the victim. Here is how the Supreme Court decided the specific case:

Sixth. In this sense, in the specific case, the defendant not only acted surprisingly and insidiously, but also appeared behind the minor’s back and committed the theft of the victim’s belongings, making a threat that clearly posed a risk to the victim’s life.

Seventh. The intimidation performed was therefore ideal for the materialization of the robbery, since the very expression “I have a gun in my pocket” accompanied by the gesture “take something from the waist” is a simulated mechanism that places the perpetrator at an advantage over his victim. , especially if it is a minor only 13 years old at the time of the events. Which, moreover, was not in a position to determine, nor was it required to verify, the truth of the threat. That is why the arguments set forth in the motion to quash the prosecution and to quash the Supreme Court’s decision convicting the accused of the crime of robbery deserve attention.

Finally, the Supreme Court emphasized the age of the accused at the time of the commission of the crime and referred to a reduction of the penalty due to his 19 years. This according to Art. 22 of the Criminal Code.

It is important to remember that the appeal for annulment is regulated in Article 292 of the Code of Criminal Procedure and is the means of contestation with the highest hierarchy among the ordinary resources of the Peruvian procedural system.

Article 292.- The appeal for annulment continues:

1. Against judgments in ordinary trials;
2. against the imposition or cancellation of a suspended sentence;
3. Against cars deciding exceptions and preliminary or preliminary questions.
4. Against writs or final judgments which extinguish the action or terminate the proceeding or instance.
5. Against final judgments in Habeas Corpus cases.

6. In cases where the law expressly provides this resource. In exceptional cases, the Supreme Court may, by way of appeal, order that the appeal for annulment be granted when there is a violation of the Constitution or a serious violation of the substantive or procedural norms of criminal law.