C.36a Ave Felix case

I. summary of the facts.
In the account of the facts, two phases can be distinguished. Firstly, the accused, Felix, drives his car onto the pavement where Francisco is standing, who is run over and sustains injuries of varying degrees (not described here); secondly, Felix gets out of the car and addresses Francisco, telling him that he is going to kill him and slapping him in the face. On the basis of these facts and without modifying them, we ask ourselves about the possible criminal liability of Félix (to simplify the analysis, we do not consider the possible criminality of the offences against road safety or traffic safety).

II. Analysis of the case. Proposed solution.With regard to the existence of human conduct, nothing can cast doubt on the fact that the process in which Felix is immersed (driving the vehicle, deviating from its trajectory, impacting Francisco, getting out of the car, speaking, saying what he said and hitting with his hand) is a process that is susceptible to self-control: leave he uses the skills inherent to driving a vehicle, chooses a goal, modifies the trajectory, climbs onto the pavement, gets out of the car, uses language... All of this supports the application of rules and self-control by Felix, which is confirmed, because there is nothing in the facts that allows us to speak of even a minimal moment of reflex movements, unconsciousness or irresistible force. The obfuscation and reduction of intellectual and volitional Schools described in the case do not lead to unconsciousness, given that the subject retains the capacity for volition (the minimum option between two possibilities: to drive the car against someone). Let us see if this conduct is typical (2). With regard to typicality, it is necessary to argue whether the objective and subjective elements of some subject (ill-treatment, injury, homicide...) are fulfilled, both in their objective and subjective facets. At the same time, it is appropriate to separate the case into the two phases highlighted above: A) assault and battery and B) slapping.
In phase A), Felix interposes a factor (driving the car onto the pavement) that can be considered a condicio sine qua non of the result of injuries suffered by Francisco, by means of the heuristic formula in question; on this point, there is little doubt. Let us see if this causal factor constitutes a risk in the typical sense, and of which subject specifically: running someone over with a car directed off the road (it is necessary to swerve and drive them onto the pavement where there are pedestrians, at least two), constitutes ex ante a typically relevant risk of ill-treatment, injury and even homicide. Typically relevant risk of ill-treatment is, firstly, present, because a hit-and-run is an intolerable encroachment on another person's sphere of freedom. Secondly, it also constitutes a typical risk of injury, because in physical terms an object such as a moving vehicle, at a certain speed, directed by its driver, is clearly a course harmful to health staff; as well as, thirdly, it could be said that it constitutes a risk of death, homicide, because the mass and forcefulness of the car against the human body is clear and effective. In none of the three risks is there any information that would allow us to speak of a permissible risk or a negligible risk. Of these three risks, now contemplated ex post, we know that the first, being a mere activity, does not require result separated in time and space from the conduct, so we can conclude that it fulfils the subject goal of the offence of ill-treatment (art. 620.2.In the case of injury, we can affirm that it is carried out in the result of damage to health which is actually produced, as there is no other factor which interposes itself between the action of Félix and the effect suffered by Francisco, so that the result is only an expression of this first risk deployed, which is why we can also conclude that it fulfils the subject goal of the offence of injury (art. 148 of the Criminal Code). 148 PC, as we understand that it is carried out with a dangerous means, such as a vehicle, and provided that other requirements of the subject of injury are fulfilled, which we cannot go into now); as for the third, on the other hand, we cannot say that it is carried out in the result (of death), as we know that Francisco did not die, so we can only conclude that the subject goal of the crime of homicide is an attempt (arts. 138 and 16 PC). Thus, Félix's conduct is typical in the sense of goal as a lack of consummated ill-treatment, consummated injuries and attempted homicide. Let's see if in the next phase (B]) another subject is also carried out.

In phase B) the slapping by Felix could be considered typical for the purposes of an offence of ill-treatment, based on the fact that it also involves an unwanted (violent) intrusion into another's sphere. However, the insignificance of the risk (only a slap) leads us to think that such a risk is atypical. But if we combine it with the phrase uttered against Francisco ("I'm going to kill you"), we can understand that the risk as a whole turns out to be a risk typical of a threatening offence, even a minor one. With this proviso, the slap and the phrase together do seem to us, ex ante, objectively typical; and as it is a mere activity offence, there is no need to ask about a subsequent result . However, the lesser seriousness of the conditioning of the freedom of others that such a phrase produces in this context means that we only consider it typical for the purposes of the offence of threatening (art. 620.1.º CP).
Let us now analyse whether the offences in both phases (A] and B]) are also typical subjectively (3). Subjectively, it must be fulfilled that the agent represents to himself the risks involved in his conduct. With regard to those deployed in phase A), we can well say that Felix has represented to himself the danger inherent in his conduct of driving his car into a person and running him over; this conclusion is reached if we take into account the set of rules of experience acquired in the daily process of learning by any adult person about the use of heavy and blunt objects. To these rules must be added those that every car driver has about the handling of a car (his own car), speed, steering, braking, etc., and about the freedom of a pavement at 2.15 a.m. from car intrusions, which makes Francisco unprepared and defenceless. This knowledge base, together with Francisco's perception ("seeing that ... was with ..."), allows us to affirm malice with regard to ill-treatment, injury and even murder. This is not prevented by the fact that his Schools was notably altered, or that he was obfuscated, data which may affect other categories of responsibility, such as culpability, but do not prevent us from speaking of malice in his conduct.
As for the threatening behaviour in phase B), the common rules that all Central European adults must have in terms of verbal communication, the effect of a slap, the effectiveness of messages such as "I'm going to kill you", etc., lead me to affirm malice in this conduct, without it being able to disappear due to the fact of the obfuscation and reduction of Schools, already mentioned. A final subjective factor must be considered here: I am referring to the intention to kill, clearly manifested in this phase B ("I am going to kill you"). However, this intention does not constitute intent, nor is it simultaneous with the risk involved. In fact, malice is knowledge the risk of the conduct itself; and furthermore, here it is a subsequent element with respect to the risk of killing with the car (phase A), so it cannot affect a previous risk (hit-and-run): this would be a case of dolus subsequens, which does not affect the malice in the strict sense of the word.Félix's conduct is therefore objectively and subjectively typical for the purposes of the offences of consummated ill-treatment (art. CP), consummated injuries (art. 148 CP), lack of consummated threats (art. 620.1.º CP) and attempted murder (arts. 38 and 16 CP). There is no doubt about the unlawfulness of his conduct, which cannot be justified by legitimate self-defence (the previous unlawful aggression is already missing). Félix is guilty of these unlawful offences, although it could be argued, as I argue, that the reduction of Schools in his intellectual and volitional capacities slightly reduces his culpability, in terms of his ability to motivate himself by means of rules, which could make an attenuating circumstance advisable (rapture or obsession, of art. 21.3 of the Criminal Code). The greater seriousness of the latter offence (attempted murder) may absorb that of the previous ones, so that they are understood to be sufficiently punished with the penalty for murder (concurrence of rules).

III. Conclusion.
Felix must answer for the crime of attempted murder, with the extenuating circumstance of rapture or obsession.