C.18c - Case of a car without brakes

I. Of the facts described, it should be noted: Juan is driving his vehicle on a steeply sloping road with wet pavement. When he tried to brake, the braking device did not respond and the handbrake was insufficient. He is forced to make an emergency manoeuvre to avoid - unsuccessfully - the collision, which results in the death of one person. The expert report report shows that the brake did not work due to an unforeseeable loss of brake fluid.

II. We are asked to analyse Juan's criminal liability. On the basis of the facts as they have been recounted, it could be understood that:

II.1. John tried to brake, without success: he is propelled by the force of inertia of the vehicle without being able to oppose it. The resistance that a human subject can put up to the force of inertia of a vehicle rolling down a sloping road with a wet road surface may be sufficient if the braking devices of a conventional vehicle, in good condition, are used to stop it. Otherwise, the force would not be resistible. John seems to be driven by an unresistible force. However, this is not the case: this impulse does not constitute a sufficient cause to be able to deny the presence of human conduct . Indeed, John is impelled by force, but this force does not suppress the possibility of behaving as a person, for external actions can still be interposed: it is not an irresistible force. In fact, he acted, for he "tried" to brake and "carried out an emergency manoeuvre", which are human behaviours. Nor can we say that he acted on status as a reflex movement, since there is a minimum interposition of consciousness, which allows him to manoeuvre and avoid the head-on collision. At final, human behaviour does not disappear.
II.2. By his conduct of attempting to brake and manoeuvre, he has triggered a succession of phenomena that lead to the death of a pedestrian. Can this death be attributed to Juan's conduct? To do so, we must analyse the elements of the so-called objective imputation: firstly, there is causality between his manoeuvre and the death result , according to the heuristic formula of the condicio sine qua non, because once this manoeuvre was mentally suppressed, the car continued on its proper course and nobody was run over. But this is not enough: this conduct also generates a typically relevant risk of homicide (arts. 138, 142), among other risks, since driving a vehicle at considerable speed against a living person constitutes a high risk of killing him; and furthermore, this risk is realised in the result, since nothing is said in the facts that it was the victim himself who threw himself into the wheels of the vehicle....

However, at this point a doubt arises: there is an extraneous factor that affects the risk course: the lack of brake fluid. If it were the conduct of a third party (for example, the mechanic who had serviced the car, who did not notice the possible loss; or Juan's enemy, who broke the brake fluid pipes) things would change, as the loss of brake fluid could be attributed to these subjects, and we would thus be dealing with elements that would interrupt the objective imputation relationship (not causation, because causation is not interrupted: if anything, it is diverted!) But nothing is said about these factors in the facts.
II.3. Furthermore, it must be examined whether the objectively imputable death result can be subjectively imputed. In this respect, a distinction must be made: John's conduct of manoeuvring is intentional, as any driver knows what happens when turning the steering wheel; but the question must be asked as to the intention (knowledge) with regard to the sudden turn and its consequence for a pedestrian. It could be understood that by turning suddenly he is unaware of the presence of a person in that place, in which case we would appreciate an error of subject. But we do not have data in that sense; rather, we can think that he was aware of the person present there, as this is what can be seen from a vehicle in normal circumstances; this would lead us to consider his conduct to be malicious.

II.4. There seem to be difficulties in asserting that such conduct is unlawful. John takes the decision at an extreme moment when he is in imminent danger of collision. This is a problem of unlawfulness: specifically, of the justification of necessity. It can be understood that he is in a crisis status , in terms of danger between his own legal assets (his life, integrity, patrimony, etc.) and those of others (life, integrity, etc. of third parties). We must analyse whether the elements of the state of necessity justifying the conduct are present: status of crisis, the first requirement, exists (art. 20.5). But it is difficult for the second requirement to be met, the weighing up of evils and suitability (art. 20.5.1), as in order to save himself, he puts the life and health of third parties outside the problem in real, imminent and effective danger. It would therefore be an aggressive state of necessity, in which a greater evil is produced than the one intended to be prevented, as saving oneself at the expense of someone who does not create an unlawful, malicious, typical aggression, is not justified (adequacy clause). The law cannot protect such conduct by justifying it (another thing is what may happen in terms of exculpation due to inexigibility, as we shall see: II.5). On the other hand, it would be justified to infringe a traffic rule (speed limit, for example) in order to exceed this status of danger, but this is not the subject of this case. John, therefore, is engaging in typically unlawful conduct.
II.5. In subject of culpability, although there do not seem to be factors affecting imputability, or the knowledge of the prohibition, it is clear that the decision to manoeuvre in an emergency is taken in extremis, to avoid an evil to himself which the agent perceives as imminent (he is going to collide and a head-on collision is represented). status However, we have said that the conduct does not disappear: the conduct exists, but it responds to a decision taken to avoid imminent harm to oneself, in which there could be an insurmountable fear (art. 20.6), which exonerates the action, insofar as it is understood that to act otherwise in this case is conduct that the law cannot demand in a general way by means of penalties. If the nature of the fear is not considered to be sufficient to leave Exempt as a punishment, it could be applied as an incomplete exonerating circumstance, which would allow the punishment to be reduced by one or two Degrees, from intentional homicide. It does not seem to me that it would be feasible to apply it as a complete exoneration, as the evil that he represents to himself is something that he could avoid with a certain amount of skill or that he must assume without passing it on to others.
II.6 . There are no grounds for non-punishability: his conduct is punishable.

III. Conclusion: Juan must answer for intentional homicide (art. 137), the penalty for which would be reduced by virtue of the incomplete defence of insurmountable fear (arts. 20.6, 21.1 and 68): it would be reduced by one or two Degrees from 10 to 15 years' imprisonment, reaching a minimum of 2.5 years' imprisonment, and a maximum of 5 years less one day. Apart from that, civil liability for the damage caused.