C.101 - Birthday case

I. From these proven facts it can be highlighted: a) E. and A. are 18 years old (more specifically, A. will be 18 on the day of the facts); b) both of them repeatedly demand two minors to hand over money; c) A. snatches the wallet from one of them; d) the police catch the four of them and prevent A. from taking the wallet.

II. On the basis of this account of proven facts (which we have partially modified to place the age in question at 18), we will deal with the liability of A. and E.

II.1. There is nothing in the account of the proven facts to cast doubt on the existence of human conduct, and so we move on to the analysis of possible criminality.
II.2 . The conduct is broken down into two phases: in the first phase, the two minors are forced to hand over money, for which they credibly communicate imminent evils (they corner them, warn them that they would be beaten if they did not give them the money, warn them "that they should not report them, otherwise they would come after them") which condition their freedom of decision. All this is indicative of a series of acts that condition the minors' will. It is clear that, without these acts, the minors would not have been compelled to submit the money, so we can affirm that the conduct of A. and E. is causal. Not only causal; it is also, given the context, seriousness and circumstances of the victim, constitutive of a relevant risk for the purposes of various types: at least threats (arts. 169-171), coercion (art. 172) and violent or intimidating robbery (arts. 237 and 242). As for threats, because announcing to a minor in these circumstances that they will retaliate if they do not make submission the money, constitutes a certain and credible evil, which in effect conditions their freedom; and this is precisely what is called threats in the types described in arts. 169-171. This subject does not require that the announced evil is produced, but at least that the victim's freedom is effectively restricted, which is the case here. Something similar happens in subject of coercion, as subject requires the activity against freedom by preventing the victim from doing something, or compelling him to do something (§ 172): and at the moment when A. snatches the wallet out of the hands of the possessor, he is physically compelling him to do what he does not seem to want to do (he "snatches the wallet out of his hands", so to speak). Then the risk of coercion is also typical. Furthermore, with regard to the robbery, note that subject requires at least two acts (violence or intimidation, on the one hand, plus theft of a movable asset against his will, on the other), and in this case, the violence or intimidation is expressed in the threats and coercion we have just mentioned; with regard to the seizure, note that A. snatches the wallet out of her hands, and incorporates it into her property (so much so that when the police arrived, they could not see the wallet). However, this seizure, although it does constitute a typical risk of the crime of theft, is not carried out in the result, it is not consummated, as it is required in this subject that the stolen property becomes available at least potentially by the thief. And this is what is missing in this case: A. and E. have not enjoyed the availability of the stolen thing, as they are still present there. Therefore, it would have been lawful for the victim to act in self-defence against A., as the assault was still in progress. Thus, the subject remains unfinished, or attempted. On the other hand, the criminalisation of threats and coercion would be included in the criminalisation of robbery, as this subject requires the acts of the former: in other words, violent or intimidating robbery already includes conducts that are typically relevant, but which (in principle, if they are minor) do not need to be punished separately, as this would imply an excess due to disproportionality in the sanction (this is the so-called concurrence of norms): in final, the application of the crime of robbery, even in an attempt, already includes the typical acts of threats and coercion. Therefore, A.'s conduct, together with the intimidation of E. and himself, partially fulfils the subject goal of the offence of robbery (arts. 237 and 242 in attempt).

From ancient times, the liability of the insane was excluded as well as that of young children(Infantibus et furiosis actiones suae imputari nequeunt: thus, in the 18th century, Christian Wolff, Philosophia practica universalis, 1738, I.VI, § 567), insofar as they lacked the use of reason. This allowed them to be held responsible well before the age of 18.

As for the subjective subject , it is difficult to deny that A. and E. acted with intent, as they both represented what they were saying, and they also knew the vulnerable circumstances of the victims, so if, knowing this, they continued to act, they were undoubtedly representing the risk goal of subject. Therefore, the subjective subject of the crime of attempted robbery is also fulfilled.
II.3 . Nothing is said about a previous attack by the two minors on A. and E. that would lead us to consider legitimate self-defence. Nor is there anything that speaks in favour of a state of necessity. The typical conduct of attempted robbery is also unlawful, as it is not covered by a ground of justification.
II.4 . With regard to the responsibility of A. and E. as perpetrators or participants, it should be noted that it is both of them who make threats and threaten the two minors, so that they are both perpetrators (co-perpetrators) of the threats. The fact that it is only A. who then snatches the wallet does not mean that he alone coerced and stole, but that what he does can also be imputed to E. This is what constitutes co-perpetration, insofar as there is mutual agreement and joint execution between the agents. And this seems to be the case here, as the agreement is at least tacit and not prior to, but simultaneous with the execution. All this makes it possible to speak of co-perpetration and what this entails: the reciprocal imputation to the participants of what any of them does.
II.5 . In terms of guilt, however, the imputation to each of them varies and is diversified. Specifically, one of the co-perpetrators turns 18 on the day of the acts. Is he a minor for criminal purposes? If it is understood that he is not, the penal code will be applied with all its consequences; if it is understood that he is a minor, the penal code gives way to the law on the criminal responsibility of minors (art. 19 CP). As far as E. is concerned, there is no doubt: he is of legal age, as he is said to be 18 years old; if he is not under the effects of intoxication or a mental illness, he should be considered to be imputable, and if he is aware of the prohibition of stealing and is not in a situation of inexigibility status , he should be considered to be guilty, as seems perfectly defensible. On the other hand, for A., the assertion of his imputability is not so simple: when should it be understood that the age of majority begins? The penal code does not establish anything in this respect; the civil code does, which in art. 315 provides that for the calculation of age, the day of birth shall be taken into account in its entirety. But this provision is in a subject that favours the person (beginning of emancipation), while applied to Criminal Law it would increase the criminal liability of the subject. This is why the in dubio pro reo rule comes into play , so that the age of criminal majority is not deemed to have been reached until the beginning of the following day. This provision applies only to A., and not to E. So A. is not liable for the crime of attempted robbery, while E. will be liable for this crime, as the imputable agent that he is. Even though they are co-perpetrators, note how they are co-perpetrators of the act, although each of them then differs in the culpability, which is staff. The fact that A. is unaccountable does not mean that his conduct is irrelevant, but rather that the security measures - which are certainly severe - provided for in the Law on Minors will come into play.

II.6. Moreover, there is nothing that conditions punishability, so that E.'s offence will also be punishable.

III. In conclusion, A. and E. are co-perpetrators of the crime of attempted robbery by intimidation Degree , for which A. is unaccountable, but not E., to whom the penalty of art. 242 will be applied, reduced by one or two Degrees, while to A. the corresponding security measures will be applied in accordance with the Law on the criminal liability of minors.

Organic Law 5/2000, of 12 January, regulating the criminal responsibility of minors.

You may think that fiction surpasses reality. However, reality sometimes at least matches it. Be sure to read the following story.

As can be seen once again, the judgement of guilt is staffThe offence, that is to say, it falls on the specific person, and not on the act. Therefore, differences are possible in the same case depending on the circumstances of each of the participants: some may be guilty, and others not, or others to a lesser extent, but always of the same unlawful act. The act is unlawful for all, but guilt is staff.
The younger age of the offender has a bearing on whether or not he or she is considered not guilty. And this is for reasons of criminal policy; specifically, the lack of need for punishment, by virtue of which, in order to avoid the application of penalties that could desocialise the subject, it has been preferred to apply another set of consequences: security measures ( class ). Thus, it should be emphasised that culpability involves elements of the agent's freedom (that he knows what he is doing and acts voluntarily), but also preventive considerations (the need or otherwise to punish). Both factors influence the basis of guilt: for minors, clearly, but also in other cases.
Minority is not the only case in which imputability is excluded. It also disappears in cases of mental derangement and transitory mental disorder. Let us look at C.102.