Public Order

April 28, 2020


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First they are, always, result crimes, and the other are crimes of mere 4 activity. As one glimpses of the reviewed thing, the crime of Illegal Possession of Firearm, is a figure of abstract danger then is not necessary the production of a concrete damage, because it is understood that the possession of arms without counting on the corresponding administrative authorization is dangerous for the society. Of another side, following teacher Edgardo Alberto Donna, who on the object of the possession it express to us, that this one is another problem that appears at the time of typifying a conduct in the crime of possession of firearms, because of which the weapon must be able to be used, according to its function or in state of operation, and that is test object. If the weapon does not work or she is not apt for his operation disappears all type of danger, and therefore the 5 conduct is atypical. In support of this idea, the Supreme Court of Spain has maintained in sentence of the 25 of April of 1994, ” that the demonstration of the suitability must be credited of convincing, unequivocal way and unquestionablily, in such a way that if that acreditamiento did not exist, similar conclusion through test can be obtained indirecta” 6.

Of it is had then, that if in the investigation that is followed against imputing by this crime, it has practiced on the seized weapon, a skill of forensic Ballistics, and this one throws, that the same is in regulating badly or been of conservation (concerning the own structure of the weapon) and badly operation (inoperativity); and being to that since the penal type in comment has been indicated, a special relation with the owned weapon is demanded from the subject assets, this is not only a physical possession of the same, but not that in addition the agent can temporarily have her, reason why the same must be usable, since thus the public security only can threaten; that if in realised fiscal or police investigation, the weapon seized to the person of the imputed one, structurally presents/displays defects that do not allow their use, of way like has become innocuous, does not constitute typical object; especially if given this impossibility of being used the weapon, could not verify the danger that this possession could generate. In conclusion, if the weapon lacks capacity to be percutida or presents/displays defects in its structure, that do impropia for their function, that is to say, impossibility to fire, that the conduct of the holding agent of the weapon, she would be atypical, because of the lack of suitability of the weapon, and therefore, not put in danger or injury of the legally protected interest public security. .