C.129a - Andreu case

I. The facts narrate how Alfonso hires the services of a professional from management for administrative appeals against traffic sanctions. He has been sanctioned with the suspension of his licence driving licence for a period of one month, in addition to a fine. Due to the influence of the manager Andreu, he did not submission the licence, despite being requested to do so with the advertisement of criminal liability.

II. We question whether they are responsible for any crime, which of the two, and how. On the criminal responsibility of both for these facts, and without modifying them, the following can be said.

II.1. With regard to whether they are acting humanely, nothing can be said except that they acted with self-control at all times of what is narrated: there can be no doubt of this, since what is narrated in the case requires a certain skill and choice of means that denote self-control. Moreover, there is no reason to believe that there was irresistible force, reflex movements or unconsciousness. Let us see whether his conduct is typical.

II.2. If we focus on a possible offence of disobedience to authority (art. 410), it would have to involve a subject with the status of civil servant or authority, which is not the case. Another possible offence would be that of breach of sentence (art. 468 ff), which requires a criminal conviction, which is not the case here. We then turn to the offences against road safety, which include driving without a licence (art. 384). In fact, the typically relevant risk for the purposes of this offence is simple: the infringement or disobedience of the driving prohibition is sufficient. This risk could, however, be called into question if the driving was on private premises, within which there is no risk at all. But this is not the case. Therefore, driving in the presence of such a prohibition would suffice here. On the facts we are not told that he drove, but that he did not hand over the licence. If we assume that he drove in the presence of this prohibition, the typical risk of the aforementioned offence of driving without a licence would be present. Therefore, under the assumption that he drove at some point during the month in which he was sanctioned, the typical risk of the offence of driving without a licence licence (art. 384) would be present. Let us now see whether it is also subjectively typical.

II.3. With regard to the subjective nature of Alfonso's conduct, it can be stated that he is aware of the risk of his conduct for the purposes of subject: he knows, like any adult in our country, that a driving licence is required and he also knows that he is subject to a sanctioning procedure which prohibits him from driving. We are also told that the manager Andreu announced to him that the procedure was null and void, and therefore the sanction did not apply, and he remained in this situation for approximately one month, until 18 July, when he presented a resource. It must be questioned whether he was in error on this point, as Andreu informed him that the sanction would be null and void ("answering ... by express committee of the other defendant, his lawyer, Andreu ... that he did so because he understood, on studying the transcript, that there were serious grounds for nullity in it"), so he could be unaware of something relevant to the subject. Although this question is debatable, this error could be seen as one referring to an element, not of the subject, but of the prohibition or unlawfulness, as it refers to the rule which in his specific case prevents him from driving. And this, under the influence of Andreu, who makes him doubt that such a prohibition exists. As it refers to the knowledge of the rule, it will be dealt with under the heading of guilt(infra, II.5). In any case, we can affirm that Alfonso's conduct (driving without a licence) is wilful, subjectively typical.

II.4 . As to whether such conduct is also unlawful, it is doubtful whether the citizen being administered has the right to object to an order of the authority (e.g. a sanctioning procedure ) on the grounds that there are indications of nullity. In my opinion, there would be a right to object to a manifestly unlawful order (for example, if he were ordered to kill or defraud someone), but this is not the case here, as the question is a debatable legal issue (whether or not it was null and void), but in such a case, it seems to me that he could act under the protection of the law, it seems to me that he could act under the justification of the legitimate exercise of a right as long as he submitted resource immediately, and not as happened here, where it took him a month, until 18 July, to submit it, and the sanction was a one-month ban. This leads me to think that his conduct is not covered by a cause of justification, and is therefore unlawful. Having said that, it is necessary to consider the culpability of both participants, as we shall see below.

II.5. As regards the culpability of each person, it is worth starting with Andreu. As an expert in the subject, he knows that it is illegal to drive without a licence, and that the penalty imposed is such a prohibition. Even if he doubts whether or not the procedure is null and void, these doubts do not exclude his knowledge from the rule. Therefore, I understand that, being a normally imputable subject, who knows the rule and who is not in status critical of strange motivation, he is guilty.

With regard to Alfonso, although he is imputable, one could doubt his knowledge on the rule, but this would imply, not that he has doubts, but that he does not know at all that it is illicit. And here we do not perceive his error, but his doubt. At this point, it is important to understand that the defeasible error is as much an error as the invincible one, as it is not a case of lesser knowledge, as if it were gradual or measurable (as is the case with imputability, which admits Degrees). In order to be able to consider whether it is defeasible or invincible, it is first necessary to assess whether there is an error. And this, in my opinion, is not the case here: Alfonso does know the possible unlawfulness of his conduct and assumes the legal risk of what might happen if he does not comply with the sanction.

II.6. Once we have seen that they are guilty, we can face the decision as to whether they respond to degree scroll as perpetrators or as participants. And here another problem arises. The crime of driving without a licence can only be committed by someone who does not have a licence: Alfonso, but not Andreu. The latter cannot be the perpetrator of such an offence. Alfonso can be the perpetrator, as he has all the necessary elements: subject goal and subjective with control of the act. Despite his doubts, generated by Andreu, about the unlawfulness of what he is doing, he has control over the act, which is given by the creation of the typical risk goal with malice aforethought. Both cannot be co-perpetrators, because, despite talking and reaching a common resolution on how to proceed, Andreu is not the punished party, so he could not carry out the crime. But he could be an accessory (specifically, an inducer, by bringing about the decision not to submit licence ) to Alfonso's offence of driving without a licence. Another possibility, since we are referring to induction, would be to consider perpetration-by-means, but for that the man behind the scenes (Andreu) would have to be the qualified person working through an unqualified instrument, and status is the reverse. Nor is it appropriate to see it as perpetration after perpetration (perpetrator after perpetrator), as we have already said that Alfonso, despite his doubts, is not in error about the unlawfulness, which would be necessary to exonerate him of guilt, but not of having carried out the subject as the perpetrator. Even if this were the case, the man in the back (Andreu) could not be the perpetrator because he lacks the quality of a sanctioned subject. Therefore, I am inclined to see Alfonso as the perpetrator, and Andreu as a participant (inductor). However, the inducement must refer to the risk of the perpetrator's subject (here, driving without a licence), and what Andreu does is properly to bring about the decision not to submit the licence, rather than driving without a licence. Therefore, it seems to me that the psychic influence on Alfonso does not refer to the risk goal of the subject in question, but to something else, such as not submit his licence. This finally leads me to argue that he would not be liable as an instigator.

II.7. There are no factors other than those analysed that affect the punishability of the conduct. Thus, if Alfonso had been driving during that month, he would have been liable for a completed offence of driving without a licence.

III. In final, Alfonso is liable for a consummated offence of driving without a licence at degree scroll as the perpetrator; while Andreu is not liable as an instigator.