C.91 - Rebotica case

I. From the facts described, it is worth noting how two people enter a pharmacy, where they force two people to stay in the pharmacy and a third to give them submissiona sum of money, which they manage to do. Furthermore, it is worth noting accredited specializationthat, of the two people, only one of them has been identified, who also has an antisocial personality disorder and a long-term dependence on toxic substances, mainly heroin, so we wonder whether this statusaffects guilt.

II. With regard to these facts, and without modifying them, we can state the following regarding the criminal liability of both subjects.

II.1. There is no reason to doubt the existence of human behaviour in the following sequences: entering the pharmacy, but above all getting other people to follow the orders given to them (going to the pharmacy, submitthe money). The latter is only possible if it is understood as human acts that follow behavioural patterns, i.e. they are susceptible to self-control. There is human conduct in both subjects.
II.2 . We now ask ourselves whether demanding that the pharmacy employees go to the pharmacy against their will and that the pharmacist makes them pay the money to submissionis a criminal offence. We are referring to two offences: conditional threats and intimidatory robbery.
With regard to the former, the typical risk consists of the advertisementof an evil if the threat is not carried out; obviously it is not required that the announced evil becomes real, but it is enough (as an effect or result) that the seriousness and forcefulness conditions the will of a person. This is the typically relevant risk required for this offence. And this risk is present in this case: in effect, by showing a large knife, one is communicating that, if the person's orders are not heeded, the knife can be used to injure or kill the other person. If we add to this other circumstances, the threat becomes more serious: nothing is said about other people being in the pharmacy, so it seems that it is the three of them as opposed to the two people who have entered with the knife. The perception that their integrity, health and even their lives are in danger is clear, as resultobjectively imputable (arts. 169-171). Therefore, the conduct is objectively typical as a threatening offence.
To this conduct is now added the relevance of showing the knife so that the third person, the pharmacist, makes submissionthe money. Once again, and for the same reasons as mentioned above, this action must be classified as a threat. But these threats serve to integrate the crime of intimidatory robbery (arts. 237 and 242), which requires seizure by means of violence (which is not the case) or intimidation. The risk of seizure occurs insofar as the superiority of strength of the two subjects is manifest, and conditions the will of the pharmacist, who makes submissionof the money without full freedom, but with her freedom conditioned. If the two individuals then flee, the seizure is consummated, the risk is realised in the result, insofar as they have at least the potential of what was stolen, as required by the jurisprudential doctrine of the crime of theft. Therefore, the conduct is also objectively typical as a theft offence. As for the intimidation or threats directed against the pharmacist, they would be included in the crime of robbery (concurrence of norms), so that they are not punished independently, but only as a crime of intimidating robbery (not so the threats against the other two persons, which can be disassociated from the robbery and could therefore be punished separately).
The intent required for both offences will depend on whether the perpetrator represents the risk of his own conduct. In this case, everything indicates that an adult person in our country represents the evil that can be done with a knife against another person. Moreover, it is difficult to ignore the fact that they enter an establishment and take advantage of the superiority of forces created in this context to demand other people's behaviour, one of which is the submissionof money, and the other is to remain in a place. Everything indicates, therefore, that the two agents represent the risk of their conduct in order to condition the conduct of others: consequently, their conduct is also subjectively typical.
II.3. There is no reason to doubt the unlawfulness of their conduct.

The STS of 20 February 1998 reads: "Lately (see the Judgment of 17 February 1993), the legal-penal transcendence of psychopathies has been highlighted, with greater relevance than had been attributed until now. The Ninth Revision of the International Classification of Mental Illnesses, drawn up by the World Health Organisation, considers psychopathies to be genuine mental illnesses, despite which, it is said, the psychopath is certainly not an alienated person in the strict sense, given that "he is not outside his own control, outside himself". This is why (Judgement of 24 September 1991) it is only in exceptional cases that psychopathy can lead to a reduction in imputability".

II.4. Both Eugenio and the other subject would be responsible for these offences, if we understand - as seems more than possible - that they act with agreementof wills and distribution of functions to intimidate and seize. Thus, both would be co-perpetrators.
II.5. It is a different matter when it comes to the culpability of the subjects. Problems now arise that seem to cast doubt on the imputability of the act to these individuals as guilty. Specifically, we refer to the imputation of the typically unlawful act of threats and robbery to Eugenio as guilty. For a subject to be manager(guilty) of an unlawful act, he must be imputable, know the rule and be required to act in accordance with it. Imputability is the condition of a subject that makes him capable of accessing the rules of conduct, the capacity to understand that something is unlawful and to act in accordance with this understanding. The ability to be guided by rules, to be free, is what makes it possible for people to be guilty. In this case, doubts may arise with regard to this first requirement - and not with regard to the other two, which will therefore not be dealt with here.
We are told in the case that Eugenio "has an antisocial personality disorder and a long-standing dependence on intoxicants, mainly heroin". A disorder, or an addiction to psychotropic substances, does not in itself constitute a factor that makes imputability disappear. This requires the capacity to understand the rules and to act in accordance with this understanding, so it is necessary for the addiction or disorder to produce the effect of incomprehension of the rules or the impossibility of acting in accordance with them (art. 20.1 and 2). This capacity to understand the unlawfulness of the conduct and to act in accordance with this understanding may disappear in some individuals (and in some cases), but it may also simply be diminished (art. 21.1 and 2). Imputability would disappear if the subject is completely unaware of the unlawfulness or is absolutely incapable, even if aware of it, of acting in accordance with the rules and refraining from carrying out the conduct. It does not seem that in this case the awareness of unlawfulness is affected to such an extent that it disappears completely, but rather we are dealing with a case of diminished or reduced capacity. There is evidence to suggest that Eugenio does not lack the awareness of wrongfulness required for imputability, but neither does it seem easy to affirm that the law is indifferent to his antisocial disorder, combined with his long-term drug dependence. Although it would be appropriate to have more information at dataon the specific effects of this disorder and dependence (which the proven facts do not provide us with), we consider that a reduction of the imputability can be defended. So that, even if he is guilty of his act, he would deserve a reduced penalty compared to what would correspond to a totally guilty agent.
As for the other subject, we do not have datato be able to argue or deny his guilt.
II.6 . There are no elements affecting the punishability of Eugenio's conduct.

III. At final, Eugenio is guilty of the typically unlawful conduct of threatening and robbery by intimidation, in real competition. However, because he suffers from a personality disorder, combined with a drug dependency, his culpability is reduced with respect to these conducts. There are various ways of taking this reduction into account in the Spanish penal code: the reduction can give rise to an incomplete exonerating circumstance (art. 21.1); a highly qualified extenuating circumstance of addiction (art. 21.2); a simple extenuating circumstance (art. 21.2). In the first case, the penalty is reduced by one or two Degrees(art. 68); in the second, also, although other elements are required (art. 66.2); and in the third, the penalty is reduced to the lower half, if other factors do not concur (art. 66.1).

Cf. C.21, C.81 and C.103.

The cases of absence of guilt due to the lack of knowledgeof the rule, or due to the lack of the possibility of acting in accordance with it, usually refer to cases of mental illness, intoxication, etc. But what is decisive is not the illness itself, but its effect on freedom: that the pathology or intoxication leads to ignorance of the rule(which produces ignorance of the normative sense, of the value, of the conduct) or makes it impossible to act in accordance with the rule(when the normative sense is known, but the agent is not capable of acting in accordance with it). Such effects can occur even if the agent is not suffering from a disease, but also due to intoxication or other environmental factors.
Let us now turn to C.92It shows how the two doctors are not suffering from a disease, nor from poisoning, and yet the question must be asked whether they are guilty.
Is there a perceived conflict involving the subjects involved (two doctors), does it give rise to a cause of justification, and is it not more of a problem of culpability? What is the difference between resolving the problem in one category or the other?