LESSONS

L.11 - Guilt

(III: INCULPABILITY AND EXCULPABILITY)

STRUCTURE

I. Inculpability: Ignorance of unlawfulness.
1. General approach.
2. Invincible lack of knowledge and overdue lack of knowledge.
3. Evolution and legal regime in Spain.
II. Exculpation: insurmountable fear and the doctrine of non-enforceability.

How could you do it (III)?

It was stated in L.10 that mental illness and intoxication do not in themselves remove culpability if they are not accompanied by at least one of these effects: a lack of understanding of the unlawfulness of the act and/or the inability to guide the conduct in accordance with that understanding. In the case we have just discussed, the question must be asked whether the perpetrator of the crime was aware of the prohibition of killing, and even whether he was capable of adapting his conduct to the perception of this prohibition. The question seems unnecessary, since no one is unaware that killing an innocent person is prohibited.

But let's think about other situations: Did you know that smoking is forbidden on a cafeteria? It is not easy to ignore it nowadays. But a few years ago, before the ban came into force, things were seen differently. We know that wearing a helmet is compulsory when driving or riding a motorbike. But do you know whether it is also compulsory when riding a bicycle, whether hitchhiking is forbidden on any road? These are administrative rules about which it is not impossible to think of subjects who are unaware of their existence or scope. But it is also possible to disregard a prohibition in the strict sense of criminal law. For example, Spanish law prohibits, in principle, the possession of weapons, which in the USA is lawful in principle. What happens if a US citizen travels to Spain carrying a firearm without having licence to do so? You can now read arts. 247, 256, 337, 384 of the CP: Did you know that these were prohibited conducts?

The "sub-principle" of culpability prevents someone from being found guilty of an offence when the agent was unaware of the rule conduct in question. I am sure that the statement "ignorance of the law does not excuse compliance with the law" is already in your head. Where does it come from? It comes from the text of Art. 6.1 of the Civil Code, according to which it is incumbent on citizens to know the law concerning their conduct. But this precept continues - although not everyone remembers this part - by stating: "an error of law shall have the effects determined by law". Both paragraphs of Art. 6.1 can be understood in this way: it is incumbent on everyone to know the legal rules that affect their own conduct, but some errors of law can fall outside this incumbency and exclude criminal liability. When? Like another familiar case, the error of subject, that ignorance from which the agent has not been able to escape - the error considered to be invincible - excludes liability. Also if the rule is not known, and such ignorance is invincible, the subject remains Exempt of liability.

A different fate will befall the agent when his ignorance is considered avoidable, in which case, criminal liability does not disappear. Here it is not fair to consider the person in such an error to be unpunished, as he could have got out of it status, informed himself... But neither is it necessary to punish with the same penalty as if he had known about it rule; nor is it essential to punish with an attenuated penalty. What seems clear is that an invincible error cannot give rise to a penalty, but what to do with an overdue error? This is another question, which is resolved differently in different legal systems. Thus, while Germany provides for an optional mitigation (§ 17 StGB), in Spain it is compulsory (Art. 14.3 CP), and nothing similar is provided for in Italy. As can be seen, the criminal-legal treatment of the overdue ignorance of rule differs from one country to another. This is not the case with regard to invincible ignorance, for which the subprinciple of guilt that prevails in our legal systems prevents punishment.

In any case, there are errors that are inadmissible from any point of view, even if they are alleged in court. This can be seen very clearly in basic offences at the heart of the Criminal Law, such as murder, robbery, rape. In these cases, an error with regard to unlawfulness is not admissible. If someone alleges this, it is a gross, irrelevant error. Something similar happens in C.111, which is dealt with below.

Cicero, De inventione2, 31, reports a case de ignorantia iurisThe structure that today is known as the prohibition error. Sailors in a storm made a promise to the harbour god they saw in the distance that they would sacrifice a calf if they reached the harbour safely. They were rescued and brought to safety. In the city there was a temple of Diana. The sailors sacrificed the promised calf to the goddess. However, according to local precepts, sacrificing a calf to Diana was forbidden. As a result, the sailors were taken to court.