C.54 - Baroque Case

From the proven facts it is worth noting how Alejandro was separating two acquaintances who were engaged in a fight, when another acquaintance, Ricardo, believing that he was involved in the fight, hit him several times and did not stop hitting him until he realised that Alejandro was not an aggressor, causing him several injuries. On the basis of these facts, which it is not feasible to modify, but which we must respect, the following can be affirmed with regard to Ricardo's responsibility.

I. There is no doubt about the existence of human conduct in Ricardo's intervention. Such a conclusion can be argued in a positive sense, since self-control is evident from the adoption of an effective behavioural guideline to achieve a goal, such as making a person cease his intent by hitting (he assaults Alejandro to make him cease his "attack"); moreover, he hits repeatedly, which sample means that he masters his movements over and over again. On the other hand, in a negative sense, there is nothing in the account of proven facts that excludes the existence of human conduct: neither reflex movements (because it is said that he realised that his acquaintances were being beaten and that he struck again and again), nor irresistible force (because he went to the place on his own feet and there insisted on his conduct), nor unconsciousness (because he realised that the contestants were his acquaintances). From here, let us analyse whether such conduct fulfils the subject of any crime.

II. As for the objective criminality of the repeated blows with the arm (in plaster) and the feet, it can be affirmed that they are causal for the injuries suffered by Alejandro. It is true that Alejandro's own conduct, who went in to separate the contenders, was also causal, as was the fight itself; but we are only interested in whether Ricardo's immediate conduct is causal for the injuries. And in this we can say yes, because if we mentally suppress these blows, the actual injuries disappear. Nothing is said about the origin of the injuries in any blows inflicted on Alejandro by the two contenders.
In addition to being causal, these blows display ex ante a typically relevant risk for the purposes of the offence of ill-treatment (art. 620.2.º CP), because to hit a person is to restrict and undermine their freedom, it is to harass them. Since it is a mere activity offence, the deployment of this risk directly on the victim is already the consummation of the offence. Therefore, the conduct fulfils the subject goal of the offence of ill-treatment. These same blows are causal and, moreover, also typical for the purposes of the offence of injury; specifically, for the offence of injury under art. 147 PC (I am not considering now whether the blow with the plaster cast can constitute an offence of injury with a dangerous instrument under art. 148; nor whether the loss of a tooth would constitute a risk of injury under art. 150): it is a risk of injury, because the health and physical integrity of people is ex ante endangered by the application of a blunt instrument with great force and repetition (kicks and blows with the arm). Moreover, as it is a crime of result , it must be proven that the result produced ex post is an expression and concretisation of this risk. There is nothing to say that a different factor intervened (that a third party or the victim himself struck other blows), so that the result of injury is only due to those blows. Thus, it can be affirmed that the conduct fulfils the subject goal of the crime of injury. As a partial conclusion, we can affirm that Ricardo's conduct is typical in the sense of goal for the purposes of the offence of ill-treatment (art. 620.2.º CP) and the offence of injury (art. 147).

III. As for the subjective typicality with regard to both conducts, it can be stated that Ricardo cannot be unaware that he is delivering these blows, as can be deduced from the fact that, when he hits, he himself feels the blow on his leg and arm because the movement is also transmitted to the agent; furthermore, he cannot be unaware that he is hitting a person and not a worthless object, because he would perceive the complaints of his victim; on the other hand, he cannot fail to know that the people he saw from afar are now the ones he has within reach of his hands and feet when he hits them. And an adult of his characteristics and age cannot fail to be aware of the consequences of his blows on a living person. All this supports the conclusion that the risk of mistreating and injuring a person was represented, which is what is required by the subjective subject of both offences. However, Ricardo confesses to having made a mistake in status; and this mistake deserves a separate study.

IV. In effect, Ricardo has been mistaken as to the victim. He has taken as his enemy in the fight a person whose identity and conduct do not match the representation he had forged for himself: he thought he was hitting an aggressor and it turns out that he is a "defender" whom he apparently already knew. This mistaken identity is not a mistake in terms of the risk of hitting, about which he was not mistaken. As far as the harmful effect of the blows is concerned, he was right: his representation is convergent with what was done (therefore malice). This is not the case with regard to identity. But the offence of assault and battery and the offence of ill-treatment make no distinction as to the identity of the victim: any injury to a person will be typical for these purposes. It is not an error in the trajectory or aberratio ictus, as his representation of the risk and his direction towards the recipient is accurate: he hits where he knew he would hit. In final, Ricardo is mistaken on an aspect that is not relevant for the purposes of excluding the offence of injury and the offence of ill-treatment. His conduct fulfils the subjective subject of both offences. Ricardo would therefore have to answer for an intentional offence of ill-treatment and an intentional offence of assault and battery, were it not for the fact that there is still a new factor on which he is mistaken and which could totally change the solution to the case.
Ricardo represents, without error, that he strikes; he also correctly represents the trajectory; he errs as to the identity of the victim, but this is not relevant for these purposes. He is also mistaken about the nature of the intervention that Alejandro was carrying out: what he was doing was legitimate self-defence by both parties (each against the other). This is precisely what Ricardo represents himself as doing: defending someone from the blows of a person (Alejandro) whom he has taken to be the aggressor. In other words, Ricardo represents himself as acting in defence of people in danger: he believes he is defending someone, but in reality he is not. This error is relevant, as it affects an element of subject: the risk of his conduct would cease to be typically relevant for the purposes of injuries and ill-treatment and would be proper to a cause of justification, provided that his representation was convergent with this risk (i.e. provided that he knew that he was acting in the face of an unlawful aggression). Ricardo is unaware of an element (hitting an innocent person) which, if it were known, would make his conduct typical for the purposes of injury and ill-treatment; and he believes, instead, that he is defending two people. In effect, he represents himself to be carrying out a different subject , that of a cause of justification such as legitimate self-defence (art. 20.4.ª CP). This error would transfer his responsibility to the sphere of imprudence, provided that he can be made to manager of such an error: due to his haste, his nervousness... In other words, his wilful conduct does not constitute a cause of justification (legitimate self-defence) because he is not aware of an essential element of subject of this (that Alejandro was the unjust aggressor, which he is not). His blows do not constitute legitimate self-defence, but neither do they constitute a crime of injury or an offence of malicious ill-treatment. The typical evaluation of his conduct is that of someone who is unaware of some essential element of the risk created: here, the risk, not of injury (which he is aware of), but of defence (which he is unaware of). Hence the reckless nature of subject: reckless injury.
If so, we could conclude by saying that Ricardo would be manager of a reckless injury offence. The same cannot be said of the offence of ill-treatment, because there is no provision for reckless modality of such an offence. Ricardo's post-execution conduct will undoubtedly have an influence on the resulting penalty.

See also C.72.