C.83 - Coto Dogs case

I. Assuming that these are the facts and that none of them can be varied, we state the following on the criminal liability of Juan and Cecilio:

II.

II.1. There is nothing in the facts narrated that allows us to doubt the existence of human conduct in the processes in which Juan and Cecilio are involved ("they were carrying out their duties as guards", "they surprised", "after shouting to see if...", "they shot at the one who..."). "shot at the one who..."). Both perform human conduct.
II.2. It could be typical for the purposes of the offence of property damage, consisting of causing damage to the property of others (art. 263). From entrance, it can be affirmed that shooting an animal constitutes a typically relevant risk in the sense of this subject, because it will produce either death or a relevant impairment of its health, which will result in the absolute loss of value of the animal. Therefore, objectively, the typicality is fulfilled. Subjectively, too, because the shooting guard does so by distinguishing and choosing his goal ("he shot at the one without a badge"). However, the subject is apparently fulfilled, as it is possible that there is a cause of justification for the conduct. Let us look at it.
II.3. The conduct is carried out under the protection of an authorisation, granted in order to reduce the danger to hunting in the hunting ground caused by entrance of uncontrolled animals. It is here that a crisis of legal interests is perceived, the first element of the state of necessity as a cause of justification. The crisis is real (the presence of the dog in a hunting ground guarded by the gamekeepers) and there is no other way of averting it (if they are not shot or captured, the dogs will escape, possibly through the hunting ground itself). Secondly, there needs to be a balancing of evils, the so-called "balancing clause", which will depend on what the evil is and where it is coming from. The threat of two dogs cannot lead one to think that the evil is of nature: these are animals over which someone must take care (hence the requirement for a collar and identification tag, which one of the two dogs lacked). It is not an evil of nature, but one arising from human conduct: the carelessness of the owner who did not put the collar on them or who let them escape. And this human conduct is of interest to Administrative Law in that it requires the collaring and tagging of the animal, in order to prevent feral dogs. But failure to comply with this duty does not give rise to legitimate self-defence, because aggression, a basic requirement, is already lacking. Nor is it an evil of nature, as there is human conduct behind it. But such conduct constitutes an offence management assistant, if - as can be deduced from the case - there was a prohibition to let them loose (hence the guards are authorised to do so). In these cases, we are talking about a state of necessity of a defensive nature (between legitimate self-defence and state of necessity in the face of natural evils or lawful conduct); the rule of weighing up evils then applies, which leads to an extensive interpretation of art. 20.5.º.1.º, in the sense that the harm caused (the shooting of the guard) is not greater than the impending harm. It may, therefore, be equal or lesser, but not greater: it is sufficient for it not to be greater for it to be justified. And this is because it is understood that the evil that threatens somewhat unbalances the status (unlawful human conduct, infringement management assistant, in this case). I think that shooting the dog in such circumstances constitutes a non-greater evil. Therefore, objectively the conduct would be justified if the other two requirements (no provocation and no obligation to kill, as seems clear) are fulfilled.
Subjectively, Juan has knowledge of the presence of the dogs, that they are in the hunting ground, that at least one of them is a stray (he chooses to shoot the one without a collar) and that they constitute an evil to be avoided. He also knows that he is shooting at this dog. The risk of killing the dog is then represented in status of crisis for the legal good. Therefore, if objectively and subjectively the elements required for the state of necessity (defensive) are present, his conduct will be justified.

III. And, having justified his conduct, it is not necessary to ask ourselves about the other elements of the theory of the offence. We do, however, ask about the civil liability derived from the damage, as the existence of a state of necessity certificate does not exclude civil liability (compensation for damages) which must be paid by the party for whose benefit the harm was done, i.e. those who benefited from the avoidance of the dog in the hunting ground (art. 118.1.3.ª).

Note how, at purpose de C.82It has been argued that there are situations of necessity which are not resolved in favour of one of the interests at stake, but which maintain the prohibition or, as the case may be, prescription to act. It is then said that they do not give rise to a cause of justification: the conduct will then be unlawful. However, it is possible to take into account the crisis status (which does exist) in order to stop imputing the unlawful conduct to the agent as guilty, or at least to diminish his culpability. We then speak of cases of inexigibility. It should not be forgotten that the situations of necessity are taken into account in terms of the unlawfulness of the conduct, as well as in terms of culpability, such as unenforceability (cfr. C.113), but in each case for various reasons.
The unenforceability of other conduct is an argument that would allow an agent's unlawful conduct to cease to be imputed to him in concrete terms. This is because in that specific case, and with those particular circumstances, the law can fail to punish him. His particular circumstances are taken into account (fear, strange motivation, psychological pressure, etc.) and it is also understood that there is no need, or less need, to punish this particular case (if his conduct is left unpunished, no new crimes will be provoked). These cases also presuppose a crisis status for legal assets. But there is a lack of weighting and proportionality in a state of necessity certificate, so that the agent would be acting against the law, and his conduct would be unlawful. Given that, in some cases, the circumstances of the agent can affect the concrete imputation of the unlawful act to the subject, the case is not irrelevant for the law. We then speak of a state of necessity of an exculpatory nature: now the problem is not of the act, but of the subject, of his motivation by means of rules in the specific case. In these circumstances, these peculiarities must be taken into account in order to consider whether the law can cease to impute his conduct to him, or consider that his imputation is diminished. We will return to these situations later in L.11 (C.113).