C.29a - Knee Case

I. Three key facts can be distinguished in these events: data . First, José Francisco "is attacked" by A. and M., who "assaulted him, in particular by punching and kicking him several times". The victim then fled "in a hurry" and was chased by A. and M., whereupon he jumped over a low wall, fell and fractured his knee. Finally, the fracture resulted in ischaemia and 6 days later it was necessary to amputate his leg.

II. Although these facts are not very plausible, since we are not told anything about what happened between the day of the assault and the day of the amputation (whether or not there was a new risk), we must respect their content. The following can be said about the responsibility of A. and M. (and not about José Francisco).

II.1. As to whether A. and M. engage in human behaviour, it can be affirmed that both maintain self-control with regard to the processes in which they are involved, insofar as they can speak, address a person, rebuke.... All of this is a manifestation of self-control on the part of the subject. Furthermore, there is no data in the facts to affirm that volition disappears due to the operation of an irresistible force, a reflex movement or unconsciousness. It is not an obstacle to the above that in the third moment (the consequences of the blow, which end in amputation), it is something beyond the subject's control, because the self-control we are talking about is not the control over the course of events, but the capacity for minimal volition (it is enough to have a choice); and this is maintained throughout the three moments. In conclusion, both A. and M. perform human behaviours. Let us now see whether they are typical.

II.2. As to whether these conducts are objectively typical, it can be stated that the assaults, punches and kicks are causal factors of what is triggered, because if we mentally suppress them, the escape, the blow and what follows from it would disappear. Let us now consider whether and to what extent these factors are typical. Firstly, it could be an offence of mistreatment (art. 147.3), not so much for rebuking someone or annoying them, but for assaulting and hitting them ("punches and kicks"); in favour of this assertion is that the victim does not consent to receive this attention and we are not dealing with a risk that can be considered socially appropriate. Secondly, these blows ("punches and kicks") may also constitute a minor offence of injury (art. 147.2) insofar as his health and integrity are attacked, but without causing him any harm that requires attendance medical attention (the amputation comes later); furthermore, it is not something innocuous, socially appropriate or irrelevant to the extent that José Francisco would have to tolerate it. However, we cannot affirm that rebuking someone, assaulting him, even with kicks and punches ("is rebuked" by A. and M., who "assaulted him, in particular with several punches and kicks") constitutes a typically relevant risk of more serious injuries (Art. 148-150) as well as homicide (Art. 138). The reason for this statement is that we are not given any information about the extent of the danger created, the seriousness of the blows (no mention is made of the dangerous medium, the parts on which the blows were struck...). Therefore, we can only refer to the risk of mistreatment and minor injuries. It is advisable to choose between the two offences (minor injuries or mistreatment), as these are conducts with partly overlapping areas of meaning, against similar legal assets (integrity and health), with very similar penalties (fines of one to two months, or one to three months), so that it could be sufficient to assess the criminality for the purposes of only one of them. I opt for that of minor injuries (art. 147.2) because it would cover the disvalue of mistreatment. With regard to whether the typically relevant risk of minor injuries is realised in result , we can answer in the affirmative, as the blows immediately undermine the victim's integrity and without giving entrance to new risk factors. However, the question arises as to whether the result which the victim finally suffered by seriously injuring his knee, followed by subsequent amputation, is a result attributable to the initial conduct of A. and M. Since the risk they posed is not one of serious injury, it makes no sense to ask ourselves whether the result of serious injury (§ 149) can be attributed to them. If, however, it is insisted that the amputation is an effect derived from the initial aggression, it must be remembered that mere causality is not enough to consider a conduct typical. Nor is it acceptable to affirm that, as it was the victim himself who fled, fell and struck, it would be he who would have created a new risk against himself which would change the object of imputation, so that they would respond for an attempt of serious injury (of art. 149), but not of result: such reasoning is not acceptable because the victim acts under the protection of the law (he flees to defend himself, "in legitimate self-defence", and cannot be left legally helpless afterwards by making a sort of poena naturalis fall on him). The basic reason for not charging A. and M. with the serious result amputation of José Francisco's leg is that the risk initially created by them is not quantitatively and qualitatively of such a serious injury. And if it is not, it makes no sense to question the possible attribution of result to the conduct. An additional argument supports the above: if the initial risk created by them was of dangerous injuries, why not also of homicide, since such a blow could affect the head, for example?

II.3. If their conduct is objectively typical of minor injuries, it must also be subjectively imputed: we can affirm that A. and M. are aware of the damaging potential of their blows and rebukes, on the basis that every adult person knows how to affect the health and integrity of people; furthermore, as the blows are repeated, they make the victim react ostensibly in view of the officers. All this leads to the conclusion that they are aware of the risk of their conduct causing minor injuries. It makes no sense to ask whether they acted with intent to cause serious injury, as we have already objectively rejected objective imputation on this basis. For the same reason, we do not ask ourselves whether the liability of A. and M. can be excluded on the grounds that they were unaware of the risk of their conduct causing grievous bodily harm: it was not objectively typical for this purpose.

II.4. It can be affirmed that both agents, A. and M., acted jointly and in unison towards the same victim. The blows inflicted on José Francisco can therefore be imputed to each other. They are co-perpetrators of the offence of minor injuries.

II.5. There is nothing to deny the unlawfulness of their conduct, nor to exclude that they are guilty. Their conduct is ultimately punishable.

III. Therefore, at final, A. and M. are liable for the offence of minor injuries.

[Elena Íñigo]