LESSONS
L.5 - Incongruent types
(II: Recklessness)
STRUCTURE
I. Introduction: reckless crime and liability for recklessness.
II. Imprudence.
Concept and types.
Regime of the Spanish Criminal Code.
III.The subjectimprudent result.
1. Objective imputation.
2. Subjective imputation.
Why don't you be more careful?
Once it is certain that the person lying on the ground is dead due to human conduct and not due to the effect of a purely natural force, it cannot be ruled out, however, that his mortal wound was caused because someone "slipped" the knife, rather than because "he stuck the knife in". Just as in the latter case we are talking about an intentional subject, it is necessary to ask about other cases in which killing (death) occurs without malice.
We now also find ourselves in cases of divergence between what is represented by the subject and the extramental reality. That is why these cases are considered as "incongruent types". Just as in L.4 we referred to a divergence by excess (the agent believes he is killing, but misses the shot), now the divergence is by defect (he believes he is not killing, but causes death). How can the agent be held liable if his error makes the act disappear (cf. the idea set out in L.3 on the criterion of the reference letter, Presidentin subjectof malice).
A distinction has been made since ancient times and is applicable here: core topic: the overriding error and the invincible error(ignorantia voluntaria and ignorantia involuntaria). In both cases it is a matter of error, so that in principle the erring party cannot be held liable. However, in one of these two cases, the error does not prevent imputation, but liability is attributed for the error itself, for having fallen into the error, because it was incumbent on the subject to avoid it. This gives rise to the so-called reckless crimes: those that are based on an avoidable or overdue error on the part of the subject.
Note how this procedureto make managerthe subject for his own error (defect of imputation) does not differ from the structure we already know of the actio libera in causa (L.1). In this case, although it is not possible to impute the agent at the moment when the damage or injury to a third party occurs, it is imputed because at a previous moment (actio praecedens) the possibility of imputation did exist. In reckless crimes the imputation structure is similar: at the moment when the agent damages or injures someone it is not possible to impute because he is in error about the course of risk, but since it was his responsibility not to fall into that error, he is imputed (in an extraordinary way, as reckless) for the production of the damage or injury, because he did not avoid his error. In C.51 a case of error is identified in which, nevertheless, it seems reasonable to make manageror impute the erring party. Why?
C.54 - Baroque Case
"At around 0.45 a.m. on 25 April 1999, when Alejandro G.E. was leaving the "Baroque" discotheque at conference room(province of Coruña) and was separating two of his acquaintances who were fighting in a nearby street, the accused, Ricardo D.V., of legal age, with no criminal record, who also knew the fighters, believing that Alejandro was involved in the fight and at the moment when Alejandro was sitting on top of one of the fighters he had separated, hit him on the head with the plaster cast and kicked him in the face and body, causing injuries consisting of contusion to the chin and left mandibular-angle region, as well as the loss, at that moment, of the right upper central incisor tooth and the coronal fracture of the left central one, which required subsequent dental extraction. All the injuries took four days to heal, requiring, in addition to the first medical treatment attendance, subsequent medical treatment and dental interventions. When the accused recognised Alejandro, he stopped hitting him, after which he apologised to him and offered to become positionfor what he had done. Subsequently, before the trainerof the case and in the oral trial, he acknowledged his actions".
(STS 3 April 2003; pte. Ramos Gancedo; RJ 2003, 2770).
AA.5
Each criminal subjectrequires a specific state of mens rea, with the exception of strict liability crimes(see AA.3). However, within the crimes that require a mens rea in the formulation of the subject, a distinction can be made between subjective faults and objective faults.
In offences requiring a subjective fault it is necessary to prove that the mental state of the perpetrator was as required by the definition of the offence. They are equivalent to what in continental law we call intentional crimes.
In offences where an objective fault is required, it will not be necessary to prove that the perpetrator had a particular mental state, but simply that he or she failed to meet a certain standard (failed to appreciate a risk that a reasonable person - reasonable man - would have appreciated). These are reckless offences. Common law generically refers to these cases as cases of criminal negligence. In contrast, the MPC vocabulary distinguishes between recklessness offences of recklessness (mental state close to intent and conscious fault) and recklessness offences of negligence (negligence).
Originally, Anglo-American Criminal Law distinguished between cases of mistake of fact and cases of mistake of law. But as in continental law, this terminology is no longer used. Jurisprudence refers only to the absence of the required mental state.
On reckless offences based on common law terminology: State v. Hazelwood (946 P. 2d 875 Alaska) 1997. On reckless offenses based on MPC terminology: Panther v. Hames (991 F. 2d 576 9th. Cir.) 1993.
VOCABULARY
- Subjective faults
- Objective faults
- Reasonable man test
- Criminal negligence
- Recklessness
- Negligence
- Mistake of fact
- Mistake of law
For a start: Jescheck/Weigend, Treatise, §§ 54-55.
For further information: Silva Sánchez, "El sistema de incriminación de la imprudencia (artículo 12)", in El nuevo código penal, pp. 79-120.
Monograph: Feijoo Sánchez, result lesivo e imprudencia, Barcelona, 2001.
N.51 Reckless crime and liability for recklessness.
N.52 Recklessness: concept and classes.
N.53 The reckless subjectof result.
N.54 Premeditation and the offences qualified by result.- N.54.
SYNOPSIS
