C.29b - Balcony case

I. Three phases can be distinguished in the account of the facts. Firstly, the preparation of the act ("Faustino and Horacio, both of legal age and with no known criminal record, ..., who had agreed in common agreement and previously arranged"). Secondly, the main phase (entrance in the house, beatings, demand of submission for the jewellery, firing of the gun and locking in the bedroom). Finally, thirdly, the injuries suffered by Visitation when she lost her footing in her attempt to escape over the balcony.

II. Since the agreement between F. and H. in the preparatory phase can be seen as an act that is included in the eventual punishment for the acts of the main phase, it does not require a separate solution (it is understood that the preparatory acts are consummated in the executed offence that follows them, as is the case). We will focus on the main phase, from entrance to the shooting; nothing is said about F. and H. achieving their purpose of seizure. The final phase poses a specific problem to be dealt with separately (II.2, in fine).

II.1. The first question is whether F. and H. are engaged in human conduct. submission If we look at the verbs used ("carrying a pistol", "carrying a knife", "they were stationed", "knowing that", "they pounced on him", "penetrating", "they began to beat him", "they demanded the money and jewellery from him"), we can only affirm self-control, as they denote the use of options and possibilities; Likewise, there is nothing in the facts that would allow us to argue self-control due to the presence of reflex movements (not even when he fired the gun twice), irresistible force (there is nothing that would allow us to see a push or similar) or unconsciousness (impossible as it requires skill to carry out these acts).

With regard to Visitación, self-control is also perceived, as she reacts when she hears the two shots, chooses the means of escape, throws herself over the balcony; however, when it is said that she lost her footing ("losing her footing in her attempt and falling into the void, hitting the pavement"), it must be understood that, from that moment, she lacks self-control and is subject to the irresistible force of gravity, as she has no possible handhold. At that moment, she does not throw herself off the balcony, but falls, but in the immediately preceding phase, there is control of the means by the agent herself, so that there is self-control up to that moment. We will come back to her later.

II.2. Let us now analyze whether these conducts are typical. The conducts of F. and H. are causal of what follows, of the effect on José Manuel and Visitación, and we will focus on whether they involve risks foreseen by the legislator in some criminal subject . Specifically, we can talk about the types of breaking and entering (entrance illegitimate), mistreatment and injuries (blows), robbery (demanding the submission of movable property), homicide (two shots), as well as threats (with a knife) and illegal detention (locking in the bedroom). The conduct i) of entering without permission constitutes the risk foreseen by the legislator in the crime of breaking and entering (art. 202), without the need to argue much more; and as it is a crime of mere activity, it is already consummated from the beginning. That of ii) hitting involves a risk of mistreatment, since no one normally relates to others in a violent manner, unless it is a defensive conduct, so that quantitatively and qualitatively it is seen as a violation of the integrity and dignity that people deserve (art. 147.3); since nothing is said about how those blows were, and it is not said that they were more, it will be only for the mistreatment and not for other injuries; and since it is a crime of mere activity, it is already consummated from the beginning of the blows. These same blows are part iii) of a crime of violent robbery, as they are accompanied by a message demanding submission of movable property (art. 242.1), also carried out in an inhabited house (art. 242.2) and with dangerous means (art. 242.3); however, as a crime of result that is, when checking if these risks are carried out in the result, it is found ex post that this is not the case: we will have to be for the attempt of this offense (art. 16). Next, iv) the two shots fired by H. against José Manuel: since it is a firearm, fired twice, at a person, I understand that ex ante it deploys a typically relevant risk of injury (art. 148.1) and homicide (art. 138); but ex post such risks are not realized in the result, since it is not said that they made impact on him, so that the injury and homicide would be attempted (art. 16). Finally, v) the employment of the knife against a person is ex ante a clearly sufficient and effective means in such a context as to condition his freedom, so it is typically relevant to threats (art. 169) and, if this is seen as result, then it is ex post verified how it effectively conditions his freedom, since he is forced to remain in the indicated place, the bedroom: so it is consummated without being attributed to a new risk. The latter also constitutes (vi) a risk of legal detention in which freedom is curtailed through threats so that she does not leave a place Closed (art. 163.1), which ex post is realized in the result, consummated crime, therefore. At this point, it is worth considering that, with respect to José Manuel, the disvalue of all the crimes can be covered by focusing on those of robbery and homicide, so we will focus only on these two. As for Visitación, we will focus only on robbery and illegal detention.

accredited specialization The question of whether we can objectively impute the injury suffered by Visitation to F. and H. is a separate issue. This would mean stating that entrance and confinement constitute a risk to her physical integrity. If it were a question of leaving her suffering from thirst or hunger, if she were dehydrated or subjected to beatings, we could consider imputation of the injuries suffered. However, it is not possible to consider the risks of threatening and locking her in the bedroom as risks of injury by hitting her on the pavement. For one thing, they are not qualitatively risks in the same sense; moreover, if she hits the pavement she is no longer locked in. We must therefore be in favour of the solution that the risks involved are not typical of injury. It is a question of the victim's own conduct that creates a quantitatively and qualitatively different risk against himself than the risk created by the offender. In other words, it is only imputable to her.

II.3. As to the question of whether F. and H. acted maliciously, I understand that they are both aware of the risk that their conduct poses: they themselves choose the means because they consider them effective in frightening people, inside a house with no easy escape, and they also perceive how effective they are as they act, as they bend the will of those who perceive these messages. Moreover, there is nothing that would allow us to affirm an error on their part, which, if it existed, could exclude the knowledge risk. All this leads me to defend the fraudulent nature of his conduct. Therefore, it is subjectively imputable to both F. and H. the subject of robbery (attempted) with respect to José Manuel and Visitación, and that of homicide (attempted) with respect to José Manuel, as well as that of illegal detention (consummated) with respect to Visitación. Since the injuries suffered by Visitación are not objectively imputable, the possible subjective imputation to F. and H. does not need to be considered.

II.4. The conduct of F. and H. is unlawful and it is not conceivable that they acted under any cause of justification. In turn, they are guilty because they are imputable, know the rule and are required to act in accordance with it. Given that F. and H. are said to have acted "in common agreement and by prior agreement", it is possible to argue co-perpetration, based on mutual agreement and joint commission (in this case in the distribution of tasks). Both are co-perpetrators, even if each one did not materially carry out each and every one of the acts. Finally, in terms of punishability, the non-consummation of the robbery and homicide must be taken into account, unlike illegal detention, which is consummated.

III. In conclusion, F. and H. are criminally liable, as co-perpetrators, for the crimes of attempted murder, attempted robbery and unlawful detention. Apart from civil liability, which could include the injuries suffered by Visitación: it should be noted that they could be civilly liable for these, but not criminally, as the criteria for criminal imputation are stricter.