C.135 - Galanes case

I. The facts narrate how three subjects (J.V., F. and the third unknown) set up agreement to get money by robbing a bank: two would enter with their faces covered and make them hand over the money, while the other would wait outside in the car to flee. Once inside, they intimidate a customer and the teller makes them submission with a certain amount of money. There is no record that they actually took the money. Without modifying the proven facts, the following analysis of the case can be made.

II. With regard to the first of the requirements criteria for imputing criminal liability, i.e. the requirement that the subjects carry out human conduct, it can be affirmed that the three subjects involved and the bank's employee , who handed over the money, carry out human conduct. The basic reason for this conclusion is that they all claim to have self-control over the events in which they are involved: a) the three who arrive at the bank (J.V., F. and the third unknown person) were travelling by car, they get out of the vehicle, they know how to choose between the different establishments, two of them put handkerchiefs on their faces, they pronounce various coherent messages, they use an object against a person... b) Something similar can be said of employee, who submission gave them the money, as he clearly had a choice, and he chose one of them, with clear self-control. In all cases, these are events in which the person demonstrates knowledge of status and adopts behavioural patterns, not being violated by it, but with clear self-control.

III. As to whether such conduct is objectively typical, we can say:

A) that those of J.V., F. and the unknown third party are objectively typical for the purposes of the crime of robbery with violence or intimidation of art. 242.3 (violence or intimidation with the use of dangerous instruments, plus seizure). Indeed, the conduct of using an object that could have been taken by the client as a knife, a syringe or any other dangerous means, as well as the message given ("this is a robbery, we have AIDS, leave us the money"), which is credible and serious in this context, are factors that fulfil the first element of subject goal of this crime (the threat with dangerous means); furthermore, this threat is the factor that produces the immediate submission of the money, as narrated. They therefore display a risk goal in the sense of this subject. We do not know if it was consummated, as this requires - according to reiterated jurisprudence - that the agent has the potential availability over the goods, which would occur when he disappears from the scene (here, leaving the establishment), which is not stated in these facts. Therefore, we are left with a crime of (violent or) intimidating robbery with dangerous means (art. 242.3) in Degree of attempt. The threats made can be understood as part of the offence of robbery, without the need to punish them separately (concurrence of norms resolved by virtue of the rule of conjunction). Subjectively, the three subjects (J.V., F. and the unknown third party) represent the risk they are creating: that is why they use an instrument to frighten the customer, cover their faces, leave J.V. waiting in the street... In other words, it is data which shows that they are aware of the risk they are creating by using precisely these means and not others in this context. Therefore, the crime of (violent or) intimidating robbery with dangerous means (art. 242.3) in Degree of attempt (art. 16) can be charged as fraudulent.
B) With regard to the conduct of employee we must ask ourselves whether it also creates a risk in the sense of subject. The submission of the money is still an act that forms part of the subject of robbery (seizure) for the three agents. The cashier makes an essential contribution to the course of events. This submission of the money is a causal factor in the offence of robbery, which also creates a risk for the legal asset. Therefore, at least for the time being, we can say that the subject of robbery is fulfilled with regard to the act of (contributing to) seizure, which is complemented by the acts of violence or intimidation of the other two subjects (who receive it). And subjectively, the employee submission the money with knowledge that he was handing it over; indeed, submission so that they would be satisfied. Therefore his conduct is wilful in terms of (contributing) to the theft.

IV. There is nothing to cast doubt on the unlawfulness of A) the conduct of the three parties. But it is questionable B) whether the bank's employee acted unlawfully. It is not a question of whether or not he intended to contribute to the other two, or to save the life of the client, or whether he wanted to help one or the other, whether he wanted to save one or rob the bank. Justification requires that there is a crisis for the legal assets, which is indeed the case here, because the client is subjected to a restriction of his freedom, at least. And this crisis is a physical, real, imminent and immediate aggression against freedom (if not against health or life itself): in final, it would seem to be a status of legitimate self-defence, which is not the case, however, as the cashier does not act against the aggressor but against a third party (the bank). This places us more in the realm of the state of necessity (necessary aid, as it is a conduct of financial aid or protection of third parties and not for one's own benefit). For the conduct to be justified, it is necessary to act without causing a greater harm than that which is intended to be avoided, and in this case the cashier affects the assets (and in a not very large amount) to protect (at least) the victim's freedom. Therefore, this requirement of necessity seems to be met. And the other two (no provocation and no obligation to sacrifice oneself) are fulfilled. Therefore, the conduct of employee would be justified and there is no need to refer further to this facet of the case.

V. As to whether the three subjects (J.V., F. and the unknown third party) are guilty, we have to affirm that they are, since they appear to act within the parameters of normal motivational normality (they are people who act voluntarily because they are free), they are aware of the prohibition (they cover their faces, they assault and do not ask strangers for money...) and they can be required to respect the rule (whether or not they suffer from AIDS is not sufficient reason for them not to be held guilty of the conduct). Moreover, there are no circumstances that exclude imputability (mental derangement or disorder, intoxication or withdrawal syndrome) or exigibility (insurmountable fear) or that they are in error as to unlawfulness. They are therefore guilty.

VI. And furthermore, the conduct is punishable, as nothing is said about factors that condition punishability.

VII. On the question of how each of them should respond, we ask ourselves whether it is possible to mutually impute everything to the three of them. The question is posed by two data: only two of them (F. and the unknown third party) enter the bank, while J.V. waits for them outside with the car ready to flee; moreover, the two who entered do not perform all the acts, but act in different ways (the one puts the object to the client, as opposed to the other who would take the money in the meantime). All this raises the question of whether reciprocal imputation is possible. It would be possible to attribute to the one who remains outside what the other two do, if there were mutual agreement between all of them, as seems to be the case ("puestos de común agreement"); but this is not enough to reciprocally impute the participants, but there must also be a functional distribution of roles or tasks, which seems to be clearly present in the two who enter, as one acts on the client and the other would be free to operate with the money. More doubtful is the case of the one who covers the escape (J.V.): in fact, he did not even enter the bank. However, such a contribution can be understood as essential to the scheme, so that it would at least constitute necessary cooperation to the crime of the other two. If such a contribution is made at the execution stage, it can easily be considered as co-perpetration even. The crime of theft is considered consummated at the moment in which the agent has the potential availability over the thing, which seems to be the moment in which the agent disappears from the scene. In our case, if the guard's contribution is made during the (last part of the) execution phase, he could be considered a co-perpetrator, as in addition to the mutual agreement it would be a contribution that expresses the functional distribution of tasks between them. But if the crime has been consummated earlier, then his contribution could be considered as necessary cooperation. I am inclined to think that the contribution constitutes necessary cooperation, as it is waiting in a different street, which would mean that the crime had been committed shortly before, in another place (because of the idea of the potential availability ). It is not because there is mutual agreement that everything becomes co-perpetration, but it requires mutual agreement and joint commission, which is what does not seem to be the case here. On the other hand, remember that we did not have data to affirm consummation, as we are not told that the money was actually taken. But we do know for sure that the crime was an attempt, and that the attempted violent or intimidating robbery will be answered for: two of them (F. and the unknown third) as co-perpetrators, and another (J.V.) as a necessary co-operator.
Degree In final, the three who come to the bank (J.V., F. and the unknown third party) will answer in a different way for the same offence of attempted (violent or) intimidating robbery: F. and the unknown third party, as co-perpetrators; and J.V., as necessary co-operator.