C.34 Adamuz cannibal case
"On 12 March 2000, at around three o'clock in the morning, on 22 Maimonides Street in the town of Adamuz (Cordoba), within the premises there, consisting of the business complex of a discotheque, adjacent courtyard and hamburger restaurant, a public fancy dress party was being held, attended by between three and four hundred people.
"On 12 March 2000, at about three o'clock in the morning, in 22 Maimonides Street in the town of Adamuz (Cordoba), within the premises there, consisting of the business complex of a discotheque, adjacent courtyard and hamburger restaurant, a public fancy dress party was being held, attended by between three and four hundred people.
Among them were Alfredo dressed in a black cannibal costume, as well as Braulio, Carlos and Diego, dressed in other costumes, all of whom had been drinking alcoholic beverages, but were in full possession of their mental Schools .At a certain point that night, the four of them met in the hamburger area and at that moment Braulio jokingly said "let's burn the black guy!", an expression that was heard by Alfredo, although he did not know who the voice came from, and by Diego, who never assumed that words would be followed by deeds, while Carlos did not hear it because he was two or three metres away.
Then Braulio, with the lighter he was carrying, set fire to Alfredo's lycra costume, which began to burn, and Diego proceeded to put it out with what he had at hand, and Alfredo protested the fact, reproaching them for such behaviour.
Despite this protest, Braulio set fire to Alfredo's clothes with the lighter, which burned completely at the bottom, and, although the flames were put out by Diego and Carlos, they caused Alfredo second degree burns Degree on the ankles and feet of both lower limbs and he had to be attended to by a doctor, needing not only initial medical attention, but also a first aid, not only did he need initial medical attention, but he subsequently had to undergo two surgical operations, which took him sixty days to heal, thirty of which he was unable to carry out his usual work as a student, having been admitted to hospital for twelve of those days, leaving him with extensive scarring all over the affected area like socks".
[STS of March 2004 (RJ 2004\3641), speaker: Sánchez Melgar].
Analyse Braulio's criminal liability. Do not consider the conduct of Carlos and Diego.
Is it questionable that Braulio would have represented the risk? Wouldn't the possible error about the behaviour of the fire on that class of clothes disappear in the second moment?
I. The events highlight how Braulio approaches his lighter to Alfredo's clothes, which quickly ignites, but is extinguished by Carlos and Diego. Braulio then moves his lighter back to Alfredo's clothes, which again ignited. Alfredo was badly burned.
II. On the basis of these facts, and without changing the story in any way, we now focus on Braulio's criminal liability, without considering the conduct of Carlos and Diego.
A. That Braulio's behaviour constitutes human conduct can be inferred from the following data: in the facts it is related how he says a few jocular words, takes a lighter, lights it and applies it to a person's clothes.... All of these data make it impossible to deny the existence of an irresistible force, reflex movements or unconsciousness in Braulio. On the contrary, he enjoys self-control at all times, in that he can modify what he is doing, stop doing it...
B. Let us consider whether such conduct also constitutes a criminal offence, i.e. whether it is typical. In terms of goal, applying a lighter to a person's clothing would begin to be typical for the purposes of the crime of injury, or even homicide, if the characteristics of the clothing cause it to ignite quickly. This also depends on how long it has been on contact with the flame: some materials ignite immediately; others require more time. Lycra material ignites immediately, so a short contact with a flame can cause the clothing to catch fire quickly. If this happens, the burning clothing, at contact with the body, will burn the person. Only if it lasts for a long time and spreads to vital parts, it can be fatal, which does not seem to be the case here.
With these data, we can state the following about objective criminality: 1) we know that, once the lighter has been mentally removed, the effect of the flames disappears, so Braulio's specific behaviour constitutes a causal factor on which we will focus in order to continue with the analysis of objective criminality. 2) This causal factor represents a risk for various legal assets: a] it is a typically relevant risk of injury, in that the speed of ignition, plus the contact with the victim's body, make the burning of the clothes a danger factor for people's health; and it is implausible that the legislator (arts. 147 ff) was not thinking of the risks to health from a fire. Furthermore, b] bringing a lighter close to a piece of clothing made of a material such as lycra represents a risk of burning it, after damaging it, which also constitutes a risk of infringement of property damage (art. 625.1, since the amount of damage does not seem to exceed the limit that separates a misdemeanour from a crime). Finally, c] burning a person's clothes, even in the context of a fancy dress party, and with the refusal of the person concerned (Braulio, who after the first act "protested against the act and criticised the conduct") also represents a risk of the misdemeanour of ill-treatment (art. 617.1). On the other hand, it cannot be affirmed that, being the facts as they are narrated, there is a typically relevant risk of homicide. 3) Of these three risks, it can be stated that the risk of injury is realised at result, since there is no factor from the victim himself or from a third party that interrupts the risk-risk relationshipresult. Although Braulio is said to have brought the lighter close to Alfredo a second time, this second act of the agent of the first act does not interrupt this relationship, but rather intensifies it. It would be different if Braulio, in a second moment, seeing that Alfredo is in flames, proceeds to put out the fire, in which case he himself would be interrupting the risk-relationshipresult. But nothing is said about this in the facts. A similar fate must befall the risk of pecuniary damage, since there is nothing that allows us to say that the relationship risk of damaging a pecuniary asset -result of pecuniary damage is interrupted: the risk of damage is realised in the result. It is not necessary to ask about the risk of ill-treatment, since as it is a mere activity offence (lacking result), it does not require this third risk element -result. At final, Braulio's conduct constitutes the subject goal of the offence of injury (art. 147 ff), of the offence of property damage (art. 625.1) and of the offence of mistreatment (art. 617.1).
C. But it is also necessary to determine whether these courses of risk have been covered by intent, i.e. whether or not they are subjectively typical. In this sense, the knowledge necessary for the subject of injury must include the representation that the flames will affect the person immediately; flames that take a long time to spread cannot cause injury as they would be extinguished immediately. However, the fabric of the disguise facilitates rapid combustion. Perhaps there is no representation of this on Braulio's part (it was at night, he could have been unaware of the flammable nature of the fabric...), but these data, which would be a mistake on Braulio's part, would in turn give rise to malice when in the second moment he sets fire again: what could have been a mistake before, is now a known risk (he has seen the lycra burn, the speed with which the fire takes root and spreads). There is no longer any room for error. Therefore, the malice would be established without any doubt for the offence of injury at the second moment in which the fire was set. With regard to the offences of damage to property and ill-treatment, the same knowledge that is used to impute the injuries as malicious would serve, with equal reason, to impute the damage and ill-treatment as malicious, as it is not possible to know the course of risk of the former without also knowing the capacity to affect the property and freedom of the victim, respectively. Malice must therefore be affirmed in all three offences.
III. In conclusion, we can establish that Braulio's conduct fulfils the subject goal and subjective offences of injury, ill-treatment and property damage.