C.69b - Puli case

I. From the facts described, it should be noted that Rubén was bitten on the leg by the dog "puli", which at the time was running loose and alone. As a result, he was left with a small scar.

II. On the basis that animals are not criminally liable because they do not engage in human conduct, in this case we are going to analyse the possible criminal liability of Manuel, the dog's owner.

II.1. First of all, we ask whether Manuel engages in human behaviour. Manuel stands out for doing nothing. However, from the valuational point of view of Criminal Law, his inactivity can also constitute a conduct. It is enough that the process (and inactivity is) in which someone is immersed is susceptible to self-control. In this case, we can say that Manuel acts with self-control insofar as he had several options: he could have restrained the dog, held it, called it... and instead he does not do so, but does something else. The facts do not tell us that Manuel was impelled by an irresistible force (that the dog ran away), that he was unconscious, or that he was subjected to a reflex movement. Therefore, we understand that there is indeed conduct in the criminal legal sense on Manuel's part.
II.2. We must now analyse whether this conduct (as inactivity) is objectively typical. As it is an inactivity, we cannot speak of a causal factor intervening on Manuel's part, but we can speak of a duty to act in a certain way status. Specifically, here, the typical status consists in the fact that there is a source of danger (a biting dog on his property), the control of which he is responsible for position. In this status, Manuel has a specific duty to act to control this source of danger. Moreover, we can affirm that Manuel is the guarantor of that source of danger. However, being a guarantor does not mean that the results caused by the dog are necessarily imputed to him, but it is necessary that the omission is structurally and normatively identical to the action in order to be able to speak of imputation of the result in commission by omission. Indeed, it is a question of analysing whether he is a guarantor with a specific position: not only of controlling what is his, but also of acting as a barrier to contain risks that he himself has assumed before society in a significant way and not only because he is the owner (he leads him by the leash, keeps him, walks him, guards him...). Therefore, if in such a status, in which any person who sees him with the owner can rest assured that he is safe, he removes the control barriers, he is allowing the source of danger to advance and legal assets to be affected. We know that Manuel then omits the prescribed action (due control over the source of danger) and that a result is produced (the dog bites Rubén) within the purpose of the criminal rule (to avoid injury to people as risks inherent to dangerous dogs). Moreover, we know that Manuel was capable of having carried out the proper conduct, as we are not told that he was prevented from acting, and this is to be expected of any pet owner. As for what subject specific injury, although it is true that there is some deformity, the facts say that it is of little importance, so it does not seem proportionate to punish by the aggravated subject . In final, Manuel's inactivity fulfils the objective elements of subject of injury (art. 147) in commission by omission.
II.3 . As to whether the conduct is also subjectively typical, we have to determine whether Manuel knew that he was omitting a conduct that was due in such a status of danger. It can be argued that Manuel is aware that he has a dangerous animal, because of the breed and possible reactions. There is nothing in the facts to suggest that the dog escaped by surprise or that a third party released it, so we can deduce that Manuel did not control it, knowing what he was not doing. Therefore, it can be said that Manuel's omission is wilful. Thus, Manuel's inactivity also fulfils the subjective elements of subject of injury (art. 147) in commission by omission.
II.4. The data available to us do not suggest any cause for justification, so the conduct is typically unlawful. And there is nothing in the account of proven facts that allows us to doubt Manuel's guilt: he is imputable, he is aware of the unlawfulness of his conduct and he is not in an extreme status situation that would lead us to excuse his conduct. Therefore, Manuel is guilty of the typically unlawful conduct of the injuries suffered by Rubén. Nor are there any factors that condition the punishability of his conduct, so that Manuel's conduct is punishable.

III. At final, Manuel has to answer for the offence of causing grievous bodily harm (art. 147) in commission by omission (with a prison sentence of between six months and three years).

[Elena Íñigo] [Elena Íñigo