C.78b - Bartolo case
"The jury found the following facts to be proven: At midday on 3 June 1999, Bartolomé moved into the home of his wife Juana, from whom he was judicially separated and with whom he had two children in common, who lived with their mother, whose custody and guardianship he held. The home was located in calle.... núm.... de Las Rozas, having been denied access to it by order of 24 November 1998 by the Court of First Instance written requestnúm. 27 of Madrid and at the request of his wife to visit their children, despite which Bartolomé, as they did not open it, proceeded to knock on the door until forcing it, to then enter the home, walk through it and then leave it when he saw that it was empty. Bartolomé entered the house solely and exclusively because he believed that something serious might have happened to his children, as no one opened the door, and with the aim of being able to help them. At the time, Bartholomew had no way of proving that his belief was wrong. As soon as he left Juana's home, Bartolomé went to a Guardia Civil post to report what had happened". (SAP Madrid, Section 1.ª, 170/2004, of 29 April; pte. Perdices López; ARP 2004, 583).
I. In these facts it should be noted that Bartholomew enters the home, knowing that he is not allowed to do so in normal situations; but he enters believing that there is a danger to his children and to avoid it. It is this entranceunder the belief that the prohibition to enter ceased at that moment to alleviate an emergency that we are considering in this case.
II. These being the facts, and without altering them, the following can be said about Bartholomew's criminal liability.
II.1. We question, first of all, whether Bartholomew is engaged in human conduct. The answer is in the affirmative, as he demonstrates self-control ("moved", "proceeded to strike", "forced her", "entered the house", "went around", etc.) and there is nothing to cast doubt on this on the grounds of irresistible force, reflex movement or unconsciousness. Let's see if this succession of behaviours is typical.
II.2 . With regard to the objective criminality of Bartolomé's conduct, we question whether it is relevant to the offences of breach of sentence (art. 468), disobedience (art. 410), breaking and entering (art. 202) and damage to property (art. 263). The risk inherent to the offence of breach is not present because, according to authoritative doctrinal opinion, it refers to criminal convictions ("conviction, security measure, imprisonment, precautionary measure, driving or custody"), and it does not seem to be the case, referring to a prohibition of entrance, which does not have to be in criminal proceedings. Nor is the risk inherent in the crime of disobedience present, insofar as it only exists for civil servants ("Public authorities or civil servants who openly refuse to give due compliance...") and this is not the case either. On the other hand, a risk to the legal right to privacy in the home is created by entering the home against the will of the inhabitant (nothing is said that he had been authorised, and no one opened the door, but he entered and went through the home) which, as a crime of mere activity, would be consummated from the beginning of the access. Moreover, in order to enter, a causal factor is provided, a condicio sine sine qua non of the breaking of the door, which consists of breaking, breaking, forcing the surface of the door and/or the lock. And it is this risk that is realised in the result, as nothing is said about it being due to a previous bad state of the door or other factors. Therefore, for the time being, we can state that his conduct is objectively typical as a crime of damage to property and breaking and entering. Let us now look at its possible subjective criminality.
II.3. Insofar as we are told that he was aware of the locked door, as well as the resistance it put up, he had to apply force, break, break through barriers..., all of which is an indication of knowledge and skill. The same applies to the offence of breaking and entering, insofar as he is aware of the prohibition of entrance(he would have been informed personally at statement), and that he is not authorised to enter because the door is locked. If the risk of both offences is represented, we must recognise that his action is intentional, and that he is guilty of requirementsin the subjective sense of the term. At least with regard to the positive subject, or positive elements of these crimes. But it may be different with regard to the negative elements, as he acted in the mistaken belief that there was danger to his children, and this makes us doubt its relevance, as we will see below.
II.4 . As to whether these behaviours are justified, it must be borne in mind that Bartholomew represents a crisis status(ex ante), but that this is not confirmed in extramental reality(ex post): it exists in his imagination, but not in reality. Therefore, there is ex post disvalue without ex ante disvalue. It is not possible to assess the conduct as justified (justification of state of necessity) insofar as the crisis is not real. But it is also irrelevant whether it was represented as danger or crisis. To the extent that this representation refers to a part of subject, to the negative elements of the types of trespass and damage(that the property is not in crisis), it could be seen as a mistake about an element of subject, which would give way to the regime of recklessness, i.e. a mistake about an element of subject. As such a mistake, it is necessary to assess whether it is overridable or invincible. And in the facts we are told that "Bartholomew had no means of proving that his belief was mistaken", so I am inclined to think that the error is invincible. As such, it is not possible to speak of imprudence (art. 14.1). If it could be overcome, we should bear in mind that the crime of trespassing is not foreseen in its imprudent modality; and as for the crime of damages, it has only been defined as a crime when it is caused by serious negligence in an amount of more than 80,000 euros, which is unlikely to be the case. Therefore, it would not be possible to assess liability for negligence in this way either. And if there is no liability because his error is invincible or the specific modalityimprudence is not defined, it is not possible to make managerto Bartolomé.
III. At final, for the reasons stated above, Bartholomew would not be criminally liable for these conducts. However, this does not mean that he is not liable in civil law for the damages caused.