C.126a - Tobacco case

I. In the facts considered proven, two persons (J. and L.) first point a shotgun and a knife at the victim, C., and then immobilise him, so that they seize his wallet (with 25,000 pts., the National Identity Card and the keys to a vehicle) and then load numerous boxes of tobacco, worth more than 21 million pts. into a lorry. On the basis of these facts and without modifying them, the following can be stated as an analysis of the case.

II. The first question is whether J. and L. are engaged in human conduct in the criminal law sense. The various forms of behaviour displayed by both subjects show self-control: they show that they are acting with volition in that they choose, communicate, use weapons, influence Camilo's freedom communicatively, search for his wallet, carry the goods... All of this is sample of self-control or volition on their part. J. and L. therefore carry out conduct in the criminal law sense.

III. Secondly, let us consider whether it is objectively and subjectively typical. On the one hand, objectively, they adopt a series of causal factors (they point a knife at him, put a knife in his back, force him to go to the back of storeroom, tie his hands and feet, cover his eyes and mouth with duct tape, lay him on the floor, take his wallet, National Identity Card, money and keys, and move several boxes of tobacco) of the affectation of his freedom suffered by Camilo, as well as the damage to his property caused by the transfer of the goods. These causal factors constitute typical risks for the purposes of at least three crimes: coercion, violent or intimidating robbery and theft (also violent or intimidating) of the use of vehicles.
In detail: i) it is a typical risk of the crime of coercion (art. 172), at the level of goal, because it is clear that the freedom of any person who is isolated by two strangers who show him a knife and a shotgun, gag him... is diminished; it cannot be neither a quantitatively irrelevant risk, nor a qualitatively permitted one. The constriction felt by Camilo in the face of the aggressors, who are two in number, each carrying a weapon against him (even if one of them could not shoot, he is able to convey the message that he is in a position to do so), makes the risk credible and not a figment of his imagination. Therefore, the consummation of the coercions is an expression of that risk deployed by J and L.
Their conducts also display a typical risk (ii) of the crime of violent or intimidating robbery (art. 242.3) and in particular of robbery with dangerous means; we reach this conclusion when we appreciate how they first condition Camilo's freedom, whom they announce an evil (with the shotgun and the knife), tie and gag him, and move him reluctantly; then, they take his wallet; all of which constitutes a typically relevant risk for the purposes of the robbery in question (art. 242.3). 242.3); again we cannot speak of a quantitatively insignificant risk or a socially appropriate one. However, we do not have data to affirm that the risk deployed is realised in the result, as we do not know if the crime of theft was consummated, which requires at least availability potential on the thing and here the proven facts only narrate that they loaded the merchandise, so we affirm that the theft subject remains an attempt.
Finally, iii) the conducts also display a typically relevant risk for the purposes of the crime of theft of motor vehicles (art. 243); indeed, taking possession of a vehicle at least for temporary use constitutes a crime; and in this case, the person who takes possession of the keys by intimidating or forcing the owner and uses it as such, is posing a risk to this property (we assume that its value is greater than the amount indicated in the precept); likewise, we cannot speak here of a risk that is quantitatively insignificant or socially appropriate. However, as in the case of the goods, we do not have data in the proven facts to affirm that the risk is realised in the result: we do not know if it was actually taken (and therefore if it was consummated), so we affirm that also the subject of theft of use of vehicles is an attempt. Of the three offences, both the coercion and the attempted theft of the use of a vehicle can be understood as part -development gradual - of the offence of violent robbery, and can be attributed to one and the same offence of robbery - of tobacco, vehicle and money: to punish both offences separately would mean incurring a double punishment for the same facts(ne bis in idem), so we attribute the coercive aspects of the case and the aspects relating to the vehicle to violent robbery.
On the other hand, subjectively, both J. and L. know that they are affecting Camilo's freedom: they use weapons, and curiously not just any weapons, but two weapons which, when used in this way, there is reason to fear; which leads us to think that they could not have been unaware of the risks they were taking against the victim's freedom and assets, when they began to seize the goods, the money and the vehicle. Therefore, their conduct is wilful misconduct.
In short, J. and L. carry out a conduct that is typical for the purposes of a crime, albeit in Degree as an attempt: specifically, an attempt of violent or intimidating robbery with dangerous instruments (art. 242.3). Both coercion and theft of use of vehicles are understood to be punishable as theft.

IV. Thirdly, let us consider whether it is also unlawful. There is nothing in the facts described that allows us to doubt the unlawfulness of the conduct carried out. Thus, J. and L. are engaging in typically unlawful conduct.

V. Fourth, let us argue whether J. and L. are guilty subjects. Both J. and L. show that they know that their conduct contradicts the law: they use violent and intimidating means to condition the freedom of others, they do so clandestinely and deceitfully, all of which shows that they know that they are acting outside the law. Furthermore, they have sufficient strength of will to adopt various decisions on the process they deploy (intimidate, coerce, tie up, move goods...) and their compliance with the law (i.e. they can be required to respect the rules), which sample shows how their will is capable of being determined by complex and anti-normative options. On the other hand, arguing in the negative, they are not in any of the cases that exclude imputability (mental derangement or transitory mental disorder, intoxication or abstinence syndrome), nor are we told that they were unaware of the rule criminal law, nor do we have any data to stop them from being required to behave in accordance with the law. Thus, we can affirm that J. and L. are guilty of the typically unlawful conduct.

VI. Fifthly, their conduct is punishable, since there is no cause for it. Consequently, J. and L. are engaged in conduct that is typically unlawful, culpable and punishable.

VII. Sixthly, let us look at the responsibility of each of the two participants (J. and L.) in terms of perpetration. If there are two persons and they use two different weapons, it is to be assumed that each of them carries a weapon and displays a typical risk. But this cannot lead to the assumption that each of them commits the crime of robbery. The offence of robbery requires seizure and violence or intimidation: these must lead to seizure. In this case, each of them intimidates, and then uses force on Camilo (one grabs him while the other ties him up, for example). Then one of them takes the wallet, the keys, the money: but this does not mean that only the one who takes these things is the manager of the crime in question. The fact that they then load the goods between the two of them does not mean that they are responsible for the robbery for this half-hearted activity. No. What this case sample clearly means is that they both commit the same offence, that of attempted violent or intimidating robbery (and the same could be said for coercion and theft of use of vehicles). This is possible if the control of the act required by authorship is joint (art. 28), as seems to me to be perfectly arguable in this case. Between both subjects average a agreement of wills embodied in a joint plan, although in its details it takes shape as it is carried out (tying him up, taking him there, taking his wallet...), as is evident in essay of the proven facts: "placed in common agreement". This common agreement is followed by a joint execution, which is perfectly perceptible in this case judging by what each one does step by step towards intimidation, coercion, seizure of the wallet, the vehicle, the merchandise... All this highlights the existence of a mutual agreement and of a joint execution that leads to the reciprocal imputation of everything they do. This would not be possible if either of them acted in isolation, acting "on their own", but this is not the case here. Therefore, J. and L. would be liable as co-perpetrators.
In final, J. and L. are jointly and severally liable for attempted violent or intimidating robbery with dangerous instruments (art. 242.3).