C.112 - Case of the former law student
"A., a former law student, is attacked by B. with a knife. A. defends himself in turn with a knife, with which he stabs B. in the lung, killing him. In the circumstances, this blow was not necessary to repel the aggression, but A. knew from his old law studies at programs of study that self-defence was a way for the legal system to remove once and for all the unjust aggressor's desire to attack other people".
(Doctrinal case, proposed by Hruschka, Strafrecht, 1988, p. 241: cf. ref. in Silva Sánchez/Baldó Lavilla/Corcoy Bidasolo, Casos, p. 342).
What is the relevance of the former law student's mistake?
I. Without varying in any way the proposed account of the facts, and focusing on A.'s liability, the following can be stated.
II.
II.1. The existence of human conduct cannot be doubted, as the self-control necessary for such conduct to exist is evident, because A. wields a knife, is aware that he is really being attacked... We therefore consider that there is human conduct on A.'s part.
II.2. The typical nature of this human conduct for the purposes of the crime of homicide leaves no room for doubt: causality, together with the creation of a sufficiently relevant risk as homicide (stab wound to the lung) and the absence of other risk factors from third parties or from the victim himself, support the solution of understanding that the subject goal of this crime (art. 138) is carried out. If we also take into account the representation of the risk that can be imputed to A. (as he is aware of wielding the knife and stabbing B.), it is then possible to subjectively impute subject as intentional. There is nothing in the statement of proven facts to cast doubt on A.'s representation of the risk involved in his own conduct. The conduct is typical.
II.3. On the other hand, the possibility of justifying this conduct is problematic: there could be an optional rule , according to which the stabbing would be justified as legitimate self-defence (art. 20.4.º). However, it is clearly stated in the facts that this blow was not necessary to repel the aggression. Therefore, the conduct cannot be justified. However, a distinction must be made: there is a need to defend oneself (in the abstract), because there is no duty to tolerate an unprovoked aggression (attack by B. on A. with a knife); but there is no need to defend oneself (in the concrete), because it was feasible to repel the aggression with less intensity. In other words: A. goes beyond what is necessary to avoid the assault, at least from what is stated in the factual account. This is therefore typically unlawful conduct.
II.4. In terms of culpability, leaving aside the imputability and the enforceability of other conduct, which do not seem to be in doubt, as there is nothing to call them into question, we can ask ourselves about the impact of the agent's mistaken belief regarding the meaning and scope of legitimate self-defence. We are told that, due to his old and "scarce" knowledge of the law, programs of study , he gets the idea that self-defence means something other than what the law provides for. The idea that legitimate self-defence "once and for all removes the unjust aggressor's desire to attack other people" does not remove either the intention - this is no longer in question - or the awareness of unlawfulness. But it can give rise to an error that would be relevant. Let me explain: if this belief leads one to think that the legal system permits or empowers one to go beyond what it actually permits, we would be faced with a divergence between the real foresight of the legal system and what the agent imagines it to be. In effect, if this were the case, the agent would consider as lawful a conduct that is in reality prohibited, because he takes as existing the permission that in reality does not exist, or as wider than what is actually permitted. In the case of an optional rule , we can speak of an "error of permission". This error is the correspective error in optional rules to the error "of prohibition" in prohibitive ones and the "of prescription" in prescriptive ones: what the agent ignores in cases of ignorance of the prohibition, is considered as permitted in the error on the permission. This is why it is also called a "permissive" error. This error of permissibility affects culpability if it leads to the disappearance of the knowledge that is required with respect to the unlawfulness (or, in this case, permissibility) of the conduct. In our case, it is possible to understand that the awareness of permissibility is affected. But it does not seem that such an error is invincible. This is because it is rather a defect of the agent himself, which we can attribute to him, since he is unaware of something through his own fault, through a defect in his programs of study, lack of consideration or through a representation of social life that goes beyond the minimum precautions that should be demanded when human life is involved. For this reason, I understand that the error of permissibility could be overcome, which is why it could be punished as homicide with the lower penalty of one or two Degrees (art. 14.3).
II.5 . The punishability is not affected by any of the data listed in the facts, so that agent A. is punishable.
III. In conclusion: A. must answer for the crime of manslaughter carried out with a guilty verdict, with a penalty that is one or two Degrees less than the penalty for manslaughter (art. 138).
It has already been said that in order to affirm the culpability of the subject it is necessary, in addition to knowing the unlawfulness of the conduct, to have the possibility of directing one's own conduct in accordance with this representation. There may be cases - which are very few - in which the subject involved is in a status situation in which it is very difficult to require him to act in accordance with the rule: a person on the verge of death who is asked to save his life at the expense of an innocent person, a person threatened with death if he does not commit a crime... These are borderline cases in which the subject involved is actually actsbut it is not entirely free to act. With terminology that we already know, even if they have volitionThe voluntariness. The case of the "two doctors" (C.92), in which the distinction between a state of necessity certificate and an exculpatory state was raised. In certain situations of necessity, there is no justification for the conduct, but the exculpation of the agent can be considered, because the strange status limit in which the acts take place cannot be overlooked. The criminal doctrine of guilt has ended up accepting these cases in order to declare the perpetrator exculpated, not guilty, because no other conduct can be expected of him in accordance with the rule in question. Note: the act is unlawful and will continue to be so in the future for that and any other subject, but it is the specific agent who is exonerated, excused, on that occasion. Let us now look at C.113 and then compare it with C.92.