C.45a - Cooker Case

I. In this academic case we read how C. intends to end D.'s life by placing "a negligible quantity of gunpowder" under her bed, which exploded without any harmful effect being described. On the basis of these facts, and without modifying them, the following solution is proposed as to C.'s liability.

II. data key points are the insignificant amount of gunpowder, the intention to end the life of D., and the ridiculous effects produced by the explosion.

II.1. First of all, we ask ourselves whether C. engages in human conduct. All the data that we read in the facts support C.'s self-control over the processes in which she is immersed (she chooses the means, the right moments...) and, furthermore, as far as placing the gunpowder and making it explode is concerned, it cannot be said that there was any irresistible force, reflex movements or unconsciousness at any moment. Let us see whether this conduct of placing and exploding the gunpowder is typically relevant.
II.2. With regard to the objectively typical relevance, it must be stated that the gunpowder is a condicio sine qua non of the explosion. In addition to its causal nature, the quality of the explosive would also be sufficient to prove that it is injurious to health or even life, provided it has sufficient explosive force. But that is precisely what is missing in this case: the "negligible quantity" of explosive means that it is not harmful to life or health, and even less so if it was placed under the bed. It could be considered whether it is typical for the purposes of the minor offence of ill-treatment (art. 147.3), but due to the quantity and place (under the bed) it could not even be considered objectively typical. It would remain a scare, but giving a scare is not - without more data- typical for the purposes of any offence. If there were damage to the bed (burning of the mattress, for example), the objectively typical character of the conduct (property damage) could be defended, but that would mean changing the facts, where nothing is said about this detail. Therefore, the conduct is no longer typical as far as goal is concerned.
II.3. As to whether C.'s intention to kill D. changes anything, the following must be said. This evil intention or purpose to kill does not make typical in the sense of goal what has already been established not to be a typically relevant risk. Moreover, the intention to kill is something exotic or strange to the average person, who does not see such conduct as dangerous to life or health. Rather, one would have to doubt the sanity of the person who aspires to kill with such means and in such circumstances, since such a quantity of explosive, placed in such a place, makes it innocuous - in the eyes of anyone - as a risk to life or health. And the risk does not cease to be objectively atypical because of a bad intention on the part of the perpetrator. Rather, we are dealing with a case of risk perceived as dangerous only by the agent, in his mental representation, which differs from the common rational intersubjective context: ex ante it is not dangerous, except in the mind of the author, the only one who imagines it as dangerous. This is what is called an unreal attempt, and as such it must go unpunished.

III.At final, C. is not liable for the conduct carried out.

[Paul S.-O.]