C.23 - Corrosive case
"At around 6.30 p.m. on 10-4-1984, the accused Milagros P. A. ... entered the portal... with the intention of going up to the fifth floor in the lift, meeting Andrea F. R., who told her not to use it and as she insisted on going up and Andrea persisted in her attitude, the defendant sprayed her with the liquid from a bottle she was carrying in her hands, which she had bought in the drugstore ... hitting her face, neck, scalp and both pinnae". It goes on to say that "the composition of the liquid could not be determined Chemistry, that it was a kitchen degreaser that dissolves in water and does not cause burns if the skin at contactis cleaned with water". Andrea F. "instead of washing herself immediately or apply forshe walked around the area with the liquid on her. Shortly after the events took place, the defendant called the police to report what had happened and the 091 conference roomordered the National Police patrol car Z-40 to go to the scene and when it arrived, the defendant told them to take Andrea, who refused in principle, to be accompanied by the police to a medical centre. residency programSanitaria... where she was found to have third degree burns Degree, caused by a caustic substance, on her neck, thorax, face and both auricular pavilions, being admitted from the 10th to the 17th of April and undergoing a first intervention on the 25th of April 1984, consisting of...".
(STS 17 September 1993; pte. Martínez-Pereda; RJ 1993, 6697).
Who is liable for the injuries caused to Andrea, and is only Milagros liable?
I. The proven facts describe how one person (Andrea) is sprayed by another (Milagros) with a liquid (kitchen degreaser, which the latter had just bought) which turned out to be corrosive. The person sprayed, instead of washing herself immediately, "walked around the area with the liquid on her" for an hour and average. The liquid gave Andrea significant burns.
II. We are asked to analyse the criminal liability of Milagros. If the facts are as reported, we can understand that:
II.1. Milagros carries out human behaviour, because samplehas self-control over the processes in which it is involved, without these being mere physiological or "human" operations, but rather certain human acts. It cannot be understood that a person in the course of an argument, however heated it may be, is driven by himself to act without being able to resist. In addition to her action being human, Milagros acts in accordance with behavioural guidelines or rules: that is, her conduct can be interpreted by other subjects as a social interrelation. Indeed, having a discussion with a person necessarily requires being guided by behavioural guidelines or rules, since arguing requires providing expressions in the conversation aimed at denying or rejecting the adversary's assertions. Thus, the person who argues must know what is being said, have alternatives to his or her actions, and provide something to oppose them. In other words: no one can argue moved by an irresistible force. As for the sequence of events consisting of throwing part of the contents of the bottle on Andrea, it must also be said that this can only be understood as an exercise and developmentof guidelines or rules of conduct: to end up defeating her adversary, not with words, but with actions (apparently, to teach him a lesson). In conclusion, Milagros carries out human conduct, she acts with self-control.
II.2 . Let us now check whether this conduct is criminal subject. Can the burns be imputed to Milagros' conduct? And what about the possible burns on the clothes? Can anything else be imputed? In order to do so, we must analyse the elements of the so-called objective imputation: firstly, whether there is causality between the throwing of the liquid and the effect of the burns. According to the heuristic formula of the condicio sine qua non, if the throwing of the liquid is mentally suppressed, the resultof the burns disappears. Consequently, the causality of his conduct can be affirmed with respect to resultthe injury caused.
But this is not enough: we must check whether such conduct also generates a typically relevant (criminal) risk and of what kind. Well, it cannot be ruled out that throwing a liquid for domestic use as a degreaser constitutes a risk of injury, since its use as such includes a corrosive potential, which is precisely the virtue of this liquid and why it is marketed (bleaches, etc.). The fact that certain precautionary measures are taken in the trade of such substances only proves this potentially harmful character. There does not seem to be a risk of homicide (arts. 138, 142), but there is a risk of injury, if the liquid is used for a long time (burns: art. 147.1, at least), of damage, by the mere contactwith clothes (irreversible stains: art. 263) and of ill-treatment (art. 147.3). Therefore, throwing a liquid used for cleaning purposes entails the risk of injury, even if only slight, if the action of the liquid lasts, as well as the risk of damaging the property of others and, finally, the risk of mistreating (annoying) the person concerned. Let us now check which of these risks is realised at result.
At this point we come across the fact that the victim herself contributed to the burns in a relevant way. Let me explain: by not going to wash herself, but rather shouting around the place, she allowed the corrosive potential of the liquid to become actual, affecting the skin. His contribution constitutes an omissive contribution (by "letting the medium operate", without removing it, without washing) of a risk (intentional or reckless). The question must be asked whether this risk interrupts the objective imputation relationship, as it is not contained in or is an expression of the one deployed by Milagros. In other words: even if Milagros is a causal factor in the burns, her conduct displays a risk that is easily neutralisable (it is enough to wash: it is of domestic use). It is Andrea, the victim herself, who contributed a risk factor by not suppressing the effectiveness of the initial risk, so should the victim herself bear the consequences of her omission(pœna naturalis)? The fact that the victim, in addition to being the cause of the injuries, has created a risk to her own health does not mean that the objective imputation relationship of resultto the conduct of Milagros is interrupted. It is a risk to one's own health that was most probably created recklessly by the victim. The recklessness does not interrupt the imputability of result, as no one is liable (the so-called "principle" of self-responsibility) for what he or she does not know (the recklessness involves an error about the course of events). The recklessness of the victim could serve to stop the application of an aggravated injury subject(e.g. the one described in Art. 148), so that only the one described in Art. 147.1 would apply.
Apart from that, it is clear, for the same reasons, that the risk of the offence of harm is realised at result. As far as ill-treatment is concerned, since it is an offence of mere activity (it is enough to annoy, without requiring a spatio-temporally separate resultof the conduct), it must be verified that the conduct belongs to the type of risks that the ruleaims to prevent. And it seems clear that the rule, which prohibits mistreating - severely - others, is intended to prevent, among many other things, a person from throwing a liquid (not only corrosive) at another person. Imputability would only be excluded (i.e. it would be a permissible risk) if the liquid was harmless and occurred in an appropriate context (in a swimming pool, for example, it could be a joke, but not in the street). Consequently, the conduct of ill-treatment is also objectively imputable.
Therefore, Milagros is objectively imputable to a typical conduct of consummated injuries (art. 147.1), a minor offence of damage (art. 263.1.II, assuming that the amount of the damage does not exceed 400 €) and another of ill-treatment (art. 147.3). Whether the sanction for the injuries can absorb (apparent concurrence of rules or laws) the disvalue of the other (minor) offences is another matter.
As far as subjective imputation is concerned, we can say that the production of the injuries has been covered by the agent's malice. We reach this conclusion, as we can see that if Milagros came from the street after buying a domestic liquid with corrosive properties in a drugstore, she knew what the liquid was (it is not necessary to know the specific composition Chemistry, and only that she had in her hands a liquid with corrosive properties: it is not necessary to know the formula Chemistryof hydrochloric acid, and only that liquids of this type classare "degreasing agents"). Moreover, she knows the specific risk involved in the behaviour of throwing it on a person because, like anyone else, she knows that the corrosive liquid "burns" clothes, the floor, skin, etc. We can deduce that she knows this, because if she uses such liquid in cleaning, she takes care on her part not to get it on herself, etc. This is as far as injuries are concerned. As far as the damage is concerned, it is clear that the same knowledge of the liquid and its corrosive capacity makes it possible to appreciate malice with regard to the damage to the victim's clothes: she knows the medium that will cause the damage and the course of risk.
Finally, with regard to the minor offence of ill-treatment, as the mere fact of throwing the liquid is already typical, and this is already known to her (she knows that she is throwing the contents of the bottle), she is also acting with malice aforethought with regard to this risk. Consequently, the injuries, damage and abuse can be charged to degree scrollwith malice aforethought.
III. Conclusion: Milagros has to answer for the offence of causing injury (art. 147: three months to three years imprisonment). This solution would not also prevent her from having to face civil liability for the resulting damages.
At final, in the legal theory of crime we proceed to assess human conduct from the point of view of rule, of a specific criminal rule. If the process of evaluationconcludes positively, we state: "the conduct is objectively typical". The so-called doctrine of "objective imputation" (which coincides with what has been presented here under the name of objective typicality) groups together a set of evaluative criteria that allow us to affirm that a conduct is or is not typical in terms of goal. It is also necessary to establish that it is also subjectively typical: L.3.