C.15 - Cordoba case

I. In the account of proven facts, it is stated that Gonzalo, "as a result of the accumulated tiredness from not having slept at all the previous car", fell asleep while driving and collided with another vehicle, resulting in the death of the driver, Josefa.
Assuming that the facts are as they are described and, without modifying them, the following could be affirmed with regard to Gonzalo's possible criminal liability.

II. In the first place, we find that Gonzalo does not carry out human conduct when he is asleep, since sleep is a factor of unconsciousness or lack of self-control of the subject over the reality in which he is immersed. Sleep cannot be understood as human behaviour but as , in the sense that the subject is a human person, but not with mastery of the status, but as a factor in a mere animal process in which he is immersed. Therefore, he does not engage in human conduct as a human process susceptible of self-control. This would be the end of the case, were it not for the fact that there appear to be factors by virtue of which Gonzalo can be made manager . Specifically, the fact considered proven that he falls asleep "as a result of accumulated fatigue from not having slept at all the previous car", i.e. that he fell asleep due to an omission of his own. If we were to find in a previous phase a moment of self-control on which what happened in a subsequent phase depended, we could make him manager responsible for what happened and therefore for Josefa's death. This is what is contained in the figure of the actio libera in causa, as a structure of extraordinary imputation, insofar as, although the elements for imputation by ordinary means (human process susceptible of self-control) do not exist, we proceed to consider the process in which he is immersed as conduct. The resource to the structure of the actio libera in causa cannot become an easy transcript to make manager to anyone of everything that happens; it is necessary, instead, to make an effort to find in that previous phase a moment of freedom that allows imputation. In our case, the fact core topic is that he falls asleep "as a result of the accumulated tiredness from not having slept at all the previous car". In order to be able to impute a conduct, it is necessary to detect that Gonzalo has self-control over the status, which can be affirmed because we are not told that he was constrained or forced by someone to remain sleepless; even in such cases, or even if he had suffered inevitable insomnia, every driver can choose (volition) not to start driving a vehicle. Therefore, we can say that there is self-control in the pre-phase on the part of Gonzalo. Note that, by virtue of model of the exception, we can move on to the next stage of analysis of the case: otherwise, we would be judging as typical something (the collision) that does not occur at the time when Gonzalo was manager (when he did not sleep the night before): it would be illogical to consider as typical something that he does not do at the moment of affecting the victim's legal property (here there is a mismatch between conduct and subject). The theoretical model that seems to us suitable for explaining extraordinary imputation allows us to overcome this illogical aspect and proceed to impute in an "adversarial" or exceptional manner (hence its name model of the exception, as opposed to model of extended typicality.
The conduct of impacting one vehicle against another is, in the first place, causal for the death of the driver of the second vehicle, as can be easily verified if we mentally remove this factor, which would make the fatal result disappear as it occurred.

Moreover, secondly, the collision involves a risk in the sense of several types: at least for the purposes of injury and homicide (leaving aside the subject of property damage). Focusing on the risk of homicide, the forcefulness, speed, force and scarce protection of a person in the other vehicle, make it clear that the risk is that of homicide (which would absorb the risk of injury).

And, thirdly, this risk is realised at result, as we are not told that another factor intervened between collision and death, or that the victim himself had increased the risk against himself (for example, by careless conduct on his part); so that the risk of homicide is realised at result; or, in other words, that this death is an expression of that risk and not of another. Consequently, Gonzalo's conduct (which dates back to the day before the collision) is objectively typical for the purposes of manslaughter. Subjectively, it is not easy to impute this conduct as wilful, as for that to be the case it would be necessary for the subject to be aware of the risk he was taking against legal assets, and it does not seem that the night before Gonzalo represented the risk he was going to take against the vehicle in which Josefa was travelling. His thoughtless conduct of not resting the day before, or the fact that it did not cross his mind that he might collide, or the fact that it did cross his mind but he dismissed such a possibility would be an expression of an error about his own capacity to avoid the risk, an error about the rules of experience that as a driver and adult person can be required of him. His error, in this sense, would be overridable, since any adult who is experienced in driving can be required to avoid those risks inherent in sleep in the use of vehicles. Therefore, his conduct would not be subjectively imputable as intentional, but would be imputable as reckless. Here again, it is necessary to resort to an extraordinary imputation structure, since we impute Gonzalo's conduct despite the fact that he did not act maliciously (the day before when he did not rest), even though the elements for ordinary imputation are not present. Here, too, we must make an exception and proceed to imputation in such cases. In this way, we make manager Gonzalo of his own error. Specifically, we could impute the risk of homicide created to degree scroll imprudent (art. 142 PC).

There is nothing to cast doubt on the unlawfulness of the alleged conduct, nor on the culpability of its agent, nor on its punishability.

III. At final, Gonzalo would be manager for the crime of reckless homicide.