C.66b - Parner case

I. Two phases can be distinguished, each with their respective actors. When someone is calling for help or financial aid, he is first seen by a person (driver, C.), who does not see any signs of danger and does not pay any attention to him financial aid. He is then seen by a nephew, who notices the "deplorable state he was in", and by a son. Between nephew and son, they put him in the latter's vehicle, which took him to the hospital, where he was "operated on that same morning in an emergency to try to alleviate the serious injuries he had".

II. On these facts, and without modifying them, the following can be said about the criminal liability of driver C., which we will compare with that of nephew and son.

II.1. First of all, we ask ourselves whether they all carry out human behaviour. There is little doubt about this. The facts mention a context in which someone is immersed with self-control, in that they require choices, options, i.e. self-control ("he stopped his vehicle", "he continued his journey"; "he arrived at the place", "he was put into the vehicle", "he was taken"). Moreover, there is nothing to doubt that this was due to reflex movements, irresistible force or unconsciousness. Let's see if these behaviours are typical, for which we will separate C.'s, and those of the son and nephew. The fact that we are taking into account a possible omissive subject (failure to provide assistance) does not mean that human conduct is not required as a basis, such as inactivity.

II.2. As far as C. is concerned, I understand that there is a possible ex ante status typical of danger ("asking the victim to take him to the village") for personal legal assets in which a duty to act to protect or safeguard arises for anyone who is present. Furthermore, we are clearly told that C. continues on his course and does not provide financial aid ("continued on his way"); and this, even though he could have done so without any particular risk to himself or third parties. It is conceivable that he was afraid, or that he felt annoyed at having to help a stranger, but this is sufficient to exclude the duty to act by lending financial aid to someone in need. His conduct of not providing financial aid or assistance can be seen as objectively typical for the purposes of the crime of omission of the duty to provide assistance (art. 195.1). Let us see if it is also subjectively typical. The facts clearly state that he did not have knowledge of the danger in which the victim could be ("without appreciating that he had any wound or sign of being in serious danger, except for a small spot of dried blood on his forehead, and seeing no reason of necessity to provide financial aid"). In other words, he did not represent the status serious danger in which the person could be: this lack of representation constitutes an error or defect of knowledge of the risk inherent to the subject omission: in this case, of the status typical base on which the duty to act would arise. But the offence of omission of the duty to provide assistance does not contemplate a reckless modality , so we do not even consider whether such an error can be overcome or invincible, since the conduct of omission of assistance due to recklessness is not typical. This is therefore the end of the case, as far as C.

And as regards the son and nephew, it can be said that they do represent the status danger in which their relative found himself (danger in which the victim found himself), and they stopped to help by taking him to the hospital. Therefore, since the duty existed, they fulfilled it and provided assistance. There is no objective criminality in their conduct.

III. In final, there is no liability on the part of C., due to a lack of subjective typicity (reckless modality is not foreseen), nor on the part of the son and nephew (they do help), neither of them is criminally liable.