C.114 - Melilla case

I. In the facts considered proven, which cannot be modified, three relevant phases can be distinguished: first, the argument between Karim and Manuel; second, the fight between the two; and third, the two stabs by Manuel ("fearing for his life") to Karim's right hemithorax with a knife.

II. Nothing leads us to doubt the realisation of human behaviour in any of the three phases and on the part of both persons involved, Karim and Manuel. On the contrary, having an argument, hitting each other in an attempt to "give without receiving" in a fight, pulling out a knife..., denote the use of rules about the handling of reality and, therefore, self-control and volition. Both Manuel and Karim carry out human behaviour. Are they also typical behaviours?
In order to analyse typicality, it is worth paying attention to each of these phases. Let's look at the aspect of goal of criminality.

III. In the first, holding an argument, as long as it is held in discussion, does not involve any typically relevant risk, but constitutes (qualitatively) a permitted or socially accepted risk, so that nothing more can be said about this part of the case.
In the second, the fight, physical aggression does take place, which could be seen as the cause of the shoving, bruises or erosions that could have occurred if we resort to the heuristic rule of condicio sine qua non. In the absence of more specific data on the effects of the blows and aggressions, we can only affirm that what was produced by each of them during the fight can be seen as both typically relevant risks of the offence of minor vexation (art. 620.I.2), because it undermines the health, integrity and freedom of the other person in a less relevant way. This offence does not require result, but is a mere activity, so that it is sufficient to argue that both conducts are objectively typical for the purposes of the offence of minor vexation. Both Manuel and Karim would each carry out an objectively typical conduct of slight vexation.
In the third phase, the two knife stabs, we are also faced with typically relevant risks. Leaving aside the subject of slight vexations (which would be absorbed by that of injuries), we find that the two stabs are the cause of the two wounds suffered by Karim; we reach this conclusion based on the heuristic rule of the condicio sine que non; in effect, if each stab is mentally removed, the result of the respective wound disappears. Striking a living person with an incisive and cutting instrument, such as a knife, constitutes a typically relevant risk for the purposes of the crime of dangerous injuries (art. 148), because it is a means that clearly and directly affects health and integrity if it is applied by pricking; the place of the blows and the size of the wounds (in the thorax), as well as the healing time (30 days, with 13 days of hospitalisation), allow us to affirm that the risk is that of the aforementioned crime of injuries. On the other hand, we cannot affirm that Manuel is a risk typical of the crime of homicide, as the information is scarce and the one that appears in the facts mentions that the right lung was affected - and not the left lung - so we lack data to affirm that life was endangered. Finally, this risk is what is realised in result, as there is no mention of an additional risk factor, nor was there a long period of time between the action and the injury, so as to foresee interference from other subjects. In final, Manuel carries out an objectively typical conduct of injury with dangerous means.

IV. The conduct of slight vexation can be subjectively imputed to Karim because in order to fight it is necessary to know that you have someone in front of you, that you have the means (arms, fists, etc.) to hit him, that you can hurt or annoy him, etc. As adults, they cannot be unaware that pushing, shoving, hitting, punching and other means are ways of harassing people. The same applies to Manuel's behaviour. Each of them carries out the harassment of the other with malice aforethought, with knowledge of the risk involved.

V. As far as unlawfulness is concerned, we can say that Karim and Manuel are from agreement in entering the fight, so they cannot invoke legitimate self-defence: both have mutually provoked the aggressions, so that both are outside the protection that the Law provides for those who are unjustly attacked (another thing is that one of them hit beyond what is tacitly expected in a fight of this type, as we will see shortly at purpose of the knife blows). Therefore, as far as the second phase is concerned, the harassment is unlawful. As for the third phase, the two knife blows, we could consider that Manuel uses the knife in legitimate self-defence against an aggression; but, as we have already explained, this would not be possible because nothing is said about an aggression by Karim against Manuel out of the ordinary in a fight of these characteristics: the necessary element of illegitimate aggression would already be missing . But it could be argued that Manuel is in a status of error as to the existence of an assault, as he feared for his life (given "the age difference" and "the physical corpulence of the victim"): i.e. that he has reason to believe that his life is in danger in the fight with Karim; however, although Manuel may believe this, although he may think that he is assaulted beyond the fight itself, this error produces a psychological status of fear that affects the eventual imputation of the unlawful act to degree scroll of reproach, i.e. it can affect guilt. Let's look at it.

VI. Both Karim and Manuel could be charged as guilty or reproachable for their respective conduct of minor vexation: we can affirm that they know as well as any other person of their condition that it is forbidden to cause physical harm to others, that there are basic rules that must be respected (the same mutual fight is a sign that each one wants to influence the behaviour of others, that they want to cause harm without it being caused to them, and that they know that hitting is against the law); furthermore, nothing is said about a possible serious deficit in their will to abide by these rules, nor is it said that their will was impaired (no mental illness, nor intoxication, nor other defects): Therefore, they are both guilty (in the traditional terminology they are imputable, they know the rules and can be required to act in accordance with these rules) of their respective offence of minor vexation (second phase). But just as the culpability for both offences of vexation does not pose any problems, problems do arise with regard to Manuel's culpability for the injury in the third phase. In this sequence, we are told that Manuel suffers from a status of fear, which can seriously affect the motivation rules and regulations, the reasons for acting with respect for legal goods and persons. Specifically, given "the age difference" and "the physical corpulence of the victim", Manuel feared for his life. Fear would be relevant for the purposes of culpability if it produced in the agent an error about rule (which is more than improbable, as one fears because one knows that if one acts, one infringes a law rule), or - and this is what is relevant - if it produced in the person suffering from it a defect of will, in the sense that it deprived him of the power of decision because of the rule and not because of the harm to interests protected by the law. In order for such fear to make guilt disappear, it must be of such a nature that the law can excuse it or stop requiring general respect for the rule in question (art. 20.6). In our case, if Manuel fears for his life, he weighs up - albeit momentarily - between two evils that loom over him: either to die in the fight, or to infringe the criminal rule even at the cost of being punished for it. And he chooses the latter because he is seriously threatened, his will (now in terms of voluntariness, and not volition) is diminished. However, I doubt that voluntariness will ever fully disappear because of fear; I do not doubt that he suffers fear, but only that it is of such a magnitude that it annuls and suppresses voluntariness. But the fear suffered is not irrelevant either: it could give rise to a reduction in culpability through the figure of the incomplete exonerating circumstance (art. 21.1.1, with respect to art. 20.6).

VII. There is nothing in the facts to cast doubt on the punishability of his conduct.
In final, Karim would be manager for a minor offence of vexation, but given that he has suffered the serious injuries described and the penalty for vexation is minor, it could be argued that the harm suffered makes the sanction unnecessary (in the manner of poena naturalis). And Manuel would be manager, on the one hand, of a misdemeanour of slight vexation, although its lightness could be punished with the penalty for the injuries (by consumption); furthermore, Manuel would be manager of a crime of injury with dangerous means, with attenuated culpability (reduction of the penalty by one or two Degrees) due to the incomplete exoneration of insurmountable fear.