C.35 Gran Vía case

In the essayof proven facts we can highlight how a person, with paranoid features, stabbed another person, with whom he had argued, in the back, in the right lumbar fossa, which caused a considerable wound; he then gave himself up to the police.

Firstly, I will highlight three distinct phases: i) Discussion in the middle of the street between José and Salvador. It ends when the latter leaves. ii) Event inside the bakery. Salvador is inside, shopping. José enters, puts his bags on the floor, takes out a 20 cm knife and stabs Salvador in the back, at the level of the right lumbar fossa. Salvador falls to the ground and José leaves the place, throwing the knife in a container. The wound required 42 days to heal, 14 of them in hospital, as well as surgical treatment. iii) José confesses the facts to the police and collaborates in the search for the knife.
Based on these facts, we will focus on the analysis of the second phase. There is no appreciable criminal responsibility in the first phase, but it serves to understand the context. The last phase will be studied at the end of the analysis.

I. As far as the existence of human conduct is concerned, several datasupport this conclusion. On the one hand, the defendant adopts various rules to achieve a goal: he goes to the place where the victim was, he carries a knife in a bag, he takes it out... These are verbs that show that he modifies his behaviour to achieve a purpose, which denotes self-control. This self-control is also evidenced by the essayof facts by using a succession of verbs such as "went", "entered", "left", and "stuck". Furthermore, there is nothing in the essayof facts that could present the character of reflex movements, unconsciousness or irresistible force. For these three reasons, we conclude for the moment that there is human conduct. Let us see whether it also has the character of being objectively typical.

II. On the level of goal, sticking a knife (kitchen knife, 20 cm blade) is a necessary condition for the production of various effects, insofar as, mentally suppressed, it eliminates the damage to health, the damage to property (clothes), etc. As well as being causal in accordance with the heuristic formula of the condicio sine quae non (once the knife is removed, the harmful resultis eliminated), let us see if, on a valuational level, it carries the risk of a criminal subject. Firstly, stabbing a person with a knife cannot be seen as socially appropriate from any point of view; and, insofar as it involves conditioning the freedom of others and mistreating someone, it can be considered to constitute a risk inherent to the offence of mistreatment and minor humiliation (art. 620.2.º CP); as it is a subjectof mere activity, it is not necessary to establish whether this risk is realised in the result. Secondly, piercing someone else's clothes with a knife creates a risk for the purposes of an offence of property damage (art. 625 PC), insofar as there is nothing to suggest that the victim consents to causing such damage to the clothes; this risk is realised in the result, as nothing is said about the creation of a new risk by third parties or the victim. Thirdly, plunging a knife into the lower back clearly involves a risk of damaging people's health, and there is nothing that can be understood in such a context as socially appropriate (a surgical operation or similar); since none of this is stated in the facts, the typical nature for the purposes of the offence of injury (art. 148 PC) must be affirmed; this risk is also realised in the result, for the same reason given for the damage (there is no mention of a new factor created by the victim or third parties). Fourthly, it is necessary to consider whether the knife stabbing constitutes a risk of homicide, or even murder (the knife was plunged into the victim's back): the area of the body where it was struck suggests that it was not an area of little relevance, but rather could affect vital organs such as a kidney, liver or lung; but such a risk is not realised in the resultof death, but would remain an attempt (arts. 138 and 139 PC). It is worth considering whether the agent's conduct constitutes an act of desistance at the attempt stage: I will return to this question later (cf. IV.). In final, we can affirm that the conduct is objectively typical for the purposes of the offence of ill-treatment and minor vexation (art. 620.2.º CP), the offence of property damage (art. 625 CP), the offence of injury (art. 148 CP), attempted murder (art. 138 CP). Let's see if it is also subjectively typical.

III. On the subjective level, we can affirm that the agent represents the risk of his conduct. And this for several reasons: on the one hand, a Western adult cannot ignore the harmfulness (sharp incised effect) of a kitchen knife, since it is an instrument that is no less dangerous because it is an everyday instrument; secondly, he must represent that he goes to the place where his victim is; and also, thirdly, that he bends down to take the knife out of the bag and stabs him in the back (this could justify the appreciation of the aggravating circumstance of malice aforethought: art. 22.1st CP). If, knowing these data, he has continued in his conduct, we must conclude that it is malicious. Therefore, we can affirm that both the misdemeanor of ill-treatment and slight vexation, as well as the misdemeanor of property damage, the crime of injury and the attempt of homicide or murder are malicious, that is, subjectively typical. The psychic disorders that the victim is said to suffer do not affect the malice, since these leave aside the possible update of rules of experience acquired in the daily learning process; in spite of these disorders, he can know the consequences of his action.

IV. I have mentioned attempted homicide or murder. As subjectdivergent, in this case the agent's representation (risk of death) is not convergent with the realisation of result. Therefore, the elements of attempt are fulfilled. However, it is also necessary to consider whether the perpetrator has desisted in such a way as to merit impunity due to the so-called desistance in the attempt phase (Art. 16.2 PC). To achieve this effect, it would have to be an active desistance, since it is a completed attempt (the risk of death has already been created and only the passage of time is needed for it to be embodied in the result). On the other hand, the facts narrate how he went to the police to turn himself in and collaborate in locating the weapon. Such conduct cannot be considered to be part of the desistance, although it can be considered to be attenuated by confession (art. 21.4 of the Criminal Code).

V. There is nothing in the account of proven facts that casts doubt on the unlawfulness of the conduct. Therefore, José has carried out a series of typically unlawful conducts.

VI. With regard to his guilt, the following can be stated: according to the opinion of two forensic doctors, he has a paranoid and primary personality which in adverse situations gives rise to violent reactions, with obfuscation; it is even stated that his volitional and cognitive capacities were nullified at the time of the events. The imputation of the unlawful act as guilty or not is a matter for the judge, and cannot be decided by a doctor (who explains what happened), whose function is different from that of the judge (who assesses the facts and imputes). The fact that his volitional and cognitive capacities were nullified cannot be understood in the literal sense, because then even volition and self-control, the most basic aspects of conduct, would disappear; nor can it be understood as the absence of malice; but can it be said that he acted without guilt? In view of the dataof the facts, it is doubtful that the defendant would have made up his mind about the legal meaning of his conduct: he knows that he creates a risk of death, as we have argued, but his mental disorder can, without excluding it, alter his representation of the meaning of the unlawfulness of his conduct. I base this assertion on the coldness with which he delivers the single stab wound, the indifference he seems to show to what has been done (he does not help him). As I understand it, the defendant has a distorted view of the prohibited or non-prohibited nature of his conduct, which may affect his imputability, but it does not seem to me to disappear, because it does not have such a relevant effect on his motivation through rules: he retains some capacity to know the rules (prohibitions...) of the conduct (he goes to the police). Therefore, he is guilty of such conduct, but with a reduction in imputability which could take the form of an incomplete defence of mental derangement or transitory mental disorder (art. 20.1.º CP). Given that there is imputability, albeit diminished, it is not necessary to resort to the structure of the actio libera in causa (even if guilt were to disappear, it would not be viable either, precisely because the subject is not free to possess a paranoid personality: he suffers the effects of this illness; another thing is that, knowing that he will control his illness by taking a certain medication, he does not do so and is immersed in a process which denies the existence of human conduct or guilt).

In conclusion, the agent will have to answer for a misdemeanour of ill-treatment and minor vexation (art. 620.1 CP), a misdemeanour of property damage (art. 623.2 CP), a crime of injury (art. 148 CP) and an attempt to murder or manslaughter (arts. 138 and 139 CP). statusHowever, there is a concurrence of rules between these last two offences, so that the attempted murder or murder displaces the injuries, as they are offences with some common elements (harm to health) and are more serious. In turn, the penalty for attempted murder or attempted manslaughter could absorb the penalty for the aforementioned offences. This attempt would be punishable with attenuated culpability (partial or semi-imputability) through an incomplete exonerating circumstance.