C.13 - The gatekeeper's case
"The train keeper, who suffers from a severe anxiety syndrome, takes pills during his work to counteract it. He overdoses on them, first becomes completely sedated and then falls asleep. As he does not fulfil his function during the latter state, a train accident occurs, resulting in deaths and injuries". Academic case: Cfr. Silva Sánchez/Baldó Lavilla/Corcoy Bidasolo, Casos de la jurisprudencia penal con comentarios doctrinales, Barcelona, 1997, p. 93, b-4.
Why can't we say that because he is asleep he does not respond?
I. These being the facts, we are asked to rule on the possible criminal liability of the gatekeeper.
II. In order to do so, it is first necessary to determine whether he is engaging in human conduct. To do so, it is necessary to distinguish two phases in the account of the facts. That of the moment when the train accident occurred; and the previous phase. At the moment when the train is about to arrive at the point where he is working, he is asleep. And sleep produces a status of unconsciousness during which there is no human behaviour. And this is because the sleeper is not immersed in a human (in)activity, but "of man", meaning that inactivity in which the human subject is not present as a rational being, but as a mere animal, that is to say, it is a merely physiological status . If it is not a "human" inactivity, it is not susceptible to self-control. And as such, it does not transcend the scope of imputation.
In the previous phase, however, the gatekeeper was conscious. We must therefore ask ourselves whether there was then conduct in the criminal law sense. In the previous phase, the subject is immersed in a human and self-controlled process, because the taking of pills is not comprehensible without an act of freedom (at least basic freedom or volition). Thus, the agent has a choice in his action: he can take pills or not, he can do it now or later, it can be one or the other. The existence of conduct in a criminal-legal sense at this stage does not resolve the case, as the agent must be made manager in an extraordinary way precisely because he has fallen into this status of unconsciousness. This is made possible by the structure of the actio libera in (sua) causa.
The imputation structure of the actio libera in causa requires not only that there is a moment of freedom in the cause(actio praecedens) of the subsequent unconsciousness(actio subsequens), but also that there is already liability at that moment. Let us look at it. The gatekeeper was not only conscious at the stage of the actio praecedens, but can also be required to fulfil the function of protecting legal property by virtue of his official document role. Specifically, in the framework of a risky activity (rail transport), he must be in a position to fulfil the duty when it arises (i.e. when the train is approaching and the barriers have to be lowered). Therefore, it is incumbent on him to ensure that a dangerous source , such as a train in operation, does not result in injury to persons....
At the time of the actio praecedens it is possible that the train guard had acted imprudently. However, there is no further information on this point at data in the statement of proven facts.
III. At final, the gatekeeper could be accused of having acted in breach of his duty by virtue of his official document, but we need data which we do not have. Next, if we had more information in the account of proven facts, it would be necessary to analyse the remaining categories of the theory of the offence.
See C. 104
As can be seen in C.13, the exclusion of liability is not final, if it is possible to impute at an earlier point in time (actio praecedens). This results in the following combination of situations:
| Actio | Praecedens | Subsequent |
|---|---|---|
| free | 1: free at source | 2. free after |
| non libera | 3: not free at source | 4: not free after |
If the agent was originally free and maintained his freedom afterwards, during the phase when a legal asset was affected (1 + 2: actio libera in se et in sua causa simul), he is ordinarily liable (he will also be ordinarily liable if, not being free originally, he became free afterwards and acted with self-control: 3 + 2). On the other hand, if the action was not free at the time it affected a legal asset, but it was free originally (1 + 4: actio non libera in se, sed in sua causa), it must be imputed in an extraordinary manner (C.13). We are left with the case of the action that was not free at the moment of damaging a legal asset, but the preceding action was not free either (3 + 4: actio non libera in se neque in sua causa), in which it is not appropriate to impute either ordinarily or extraordinarily(C.12). The structure of the actio libera in causa makes it possible to overcome the defects of imputation of the agent himself, and to re-establish the attribution of liability. This is what is proper to imputation qualified as extraordinary.
At this point, it is useful to know the key ideas about human behaviour at Criminal Law:
