C.137b - Metro Case

I. In these events, it is worth mentioning how four people act against F.J.: they throw him off track by throwing some coins at his feet, to then lock his legs and take away a purse (with 50,000 pts.), while another person, Ali T., waits at the door of the convoy so that they do not close and so that the four of them can escape. Although the identity of the first three subjects is not known, we will refer to all of them.

II. On the criminal liability of Ali and the other three subjects for these facts, and without modifying them, the following can be argued.

II.1. As to whether they all engage in human behaviour, there can be no doubt about it. In fact, the brief facts proved are sufficient to show that there are a series of manifestations of self-control: choice of place, manner and means, throwing the coins, locking his legs, holding the automatic door... All of this denotes self-control on his part, and furthermore there is nothing to suggest that there was any cause for exclusion such as irresistible force, reflex movement or unconsciousness. In final, all four perform human conduct. Let us now see whether they are typical.

II.2. The seizure of movable property such as money against the will of its owner by immobilising it is the crime of violent robbery (arts. 237 and 242). The typically relevant risk of this offence consists of seizing movable property against the will of the possessor by means of violence against the latter or a third party. Well, in this case, the exercise of violence is given by the proven fact that they had him trapped by the legs, taking advantage of a mistake caused by themselves when they threw some coins in front of him. It is violence because ex ante it presupposes the impossibility of movement sufficient to put up effective resistance; otherwise it would not be possible to speak of him being trapped. This exercise of violence is followed by the seizure of the purse: although it is not an exercise of violence (the purse is not snatched from his hand, for example), it is taken from the pocket of someone who is relatively immobilised. Presumably he would use his arms to resist, but nothing is said in this respect in the facts except that there were three against one, so presumably they would neutralise the possible reaction of F.J. The use of violence and the seizure show that it is against the will of the possessor. This being the case, the risk deployed is the one foreseen in subjectof Art. 242, without us being able to speak of conduct that is in accordance with the law or socially accepted. And it is this risk that is realised ex post in the result, as it is immediately taken away and they leave the scene through the door that Ali keeps open, at which point the crime is consummated, according to the accepted jurisprudential doctrine of the potential availability. Let us now see if they are subjectively typical.

II.3. With regard to the subjective criminality of the conduct of the four subjects, it can be said that the exercise of tactical violence (misleading and blocking him, plus disempowering him) denotes the knowledgeof a certain skillto quickly neutralise the person's resistance. We can refer to the fact that they trace a mode of execution that denotes knowledgeof the possible reaction of people in these situations, plus the immediacy that comes from acting in a metro carriage about to leave as soon as the doors close, which they themselves control. There is no doubt about the knowledgeof the purse in the pocket. As to whether they represent the exact amount of the contents, it would be enough to know that there was something, the purse itself is already something, of a certain value, without them having to know the exact value of its contents. It also requires skillthe conduct of keeping the doors open, as Ali did, so that he had to apply some physical force with a representation of its effectiveness in order to slow down the convoy. Therefore, resorting to the knowledgethat any person has about these courses of action, we can say that they sufficiently represent the risk of their conduct by anticipating what they are going to achieve. If, in addition, there is nothing to suggest an error in their course of action, we must say that the conduct of the four is wilful misconduct.

II.4 . As to whether their conduct is unlawful, there is nothing to deny it, as a crime of violent robbery, with no possible cause of justification. Nor can there be any doubt, in view of the proven facts, as to the guilt of the four participants: if nothing is said in this regard, it is that they are subjects with normal motivational normality, with the exercise of freedom (they know what they are doing and act voluntarily), which is why their conduct of violent robbery is reproachable.

II.5. The question now arises as to whether the four subjects respond in the same way or in different ways according to their classof intervention, i.e. authorship and participation. The dynamics of the facts highlight a minimal plan of action in which they are agreement: if it was not prior, it would be simultaneous, perhaps not express, but tacit, insofar as they demonstrate a certain coordination and union of personal contributions in a joint act. All this leads me to think that they are co-authors. It is doubtful, however, that Ali, who waited holding open the door of the convoy, was a co-author. It is arguable that his contribution is relevant to the success of the action, as the four flee in a metro carriage, which disappears without return from the scene. Therefore, he would not be an accomplice, but a necessary co-operator. However, this same idea makes him a co-perpetrator, as his contribution is made in the executive phase (during the disempowerment) and favours the escape, which in these circumstances means achieving consummation through the potential availability. This makes his contribution essential and part of the subject(it achieves consummation), i.e. it implies joint execution. This supports the solution of considering him to be a co-perpetrator. 

II.6. One factor of the facts may affect the punishability of the conduct. Specifically, the amount of the stolen goods (50,000 pts.). This factor conditions punishability, and is not an element of subjectof violent robbery, which is fulfilled by the seizure of a movable property by means of violence. The value of what was stolen can affect or even condition the need to punish with a greater or lesser penalty. It would be, in final, a condition of punishability and not an element of subject. Since this circumstance is present, it could be taken into account for the purpose of modulating the penalty. It could also be taken into account for the purposes of the attenuated subjectof Art. 242.4, which provides that, "[i]n view of the lesser degree of violence or intimidation exercised, and also taking into account the other circumstances of the act, the lower penalty may be imposed at Degree". However, it should be borne in mind that there are four as opposed to one victim, a fact which rather supports the greater seriousness of the specific act.

III. At final, the four subjects are charged with the crime of violent robbery (art. 242), all of them as co-perpetrators.