LESSONS
L.6 - The omissive subject
STRUCTURE
I. Concept of omission at Criminal Law; prescriptive rules.
II. Types of omissions.
III. The subject of pure omission.
IV.The problem of commission by omission and the principle of legality.
V.The subject of the commission by omission: The positions of guarantee; the pure omissions of guarantor.
Why didn't you do something?
Once it has been established that the dagger in the victim's chest was caused by human conduct, it is appropriate to ask about the possible relevance of a third party in preventing the event. That is to say, whether someone could have prevented the victim's death. For example, let us consider that a third party stands by and watches the stabbing of the victim by another. Is the bystander criminally liable if he or she remains passive?
At this point, it is worth drawing attention to a common distinction: killing is not the same as letting die, beating is not the same as letting the victim injure himself..... Killing and beating are conceived as active, commissive conducts, while letting die or letting be injured would be understood as omissive conducts. What is proper to them is not that the subject who is involved in a process does nothing, but that he does not do what is due (we could speak of inactivity of someone in the middle of a process). The omission, the unjust content of omissive crimes, depends on the existence of preceptive rules, i.e. those which oblige a conduct to be carried out in a specific case. Thus, a person who watches a third party strike the victim is subject to a rule which prescribes him to carry out a conduct: to help the person in danger. In the same way, whoever watches a traffic accident must help those who have suffered it. This is not because he caused the accident - it may well be that he arrives after it has happened -, nor because he is a first aider obliged to provide help - which he is not -, but because as a citizen he has the duty to help those in status manifest and serious danger. In these cases, we are talking about "crimes of omission".
In the aforementioned cases (assistance to the victim or injured person), the offence consists of failing to provide protection or protection - briefly: assistance. result This does not mean that the person obliged to provide assistance must prevent the death or injury of the victim, so that he/she would be liable for this harmful result even if he/she omitted to do so. It should be noted that the offence consists of and is exhausted in the non-performance of the due conduct. That is all. The fact that the rescue is successful, that the injured person is saved, is no longer part of what constitutes the object of the duty to rescue. This would be a crime of mere "activity" or, to be more precise, crimes of mere omission ("crimes of pure omission"). See C.61.
One of the cases of omissions punished with the same penalty as active commission is already found in the Digest (although it cannot be said that in the Roman Criminal Law commission by omission had the same characteristics as today): "It is ordered in the Cornelian law that whoever adulterates a gold coin or casts a counterfeit silver coin, is subject to the same penalty as one who commits counterfeiting. He who could have prevented such a crime, but did not do so, is also subject to the same penalty" (Digest, 48,10,10). (Digest, 48,10,9,1).
C.64 - Case Alhóndiga Agrisel
"It is hereby proven and declared that at around 12.50 p.m. on 17 July 2002, Rafael, a worker of business"Felipe y Juan Ramírez, S.L" [of which José Augusto and Ismael were representatives], while he was carrying out construction work on a warehouse for the company "Alhóndiga Agrisel", [proceeded to] place a steel truss some 8 metres long on four-metre high props, placed on a concrete platform 1.10 metres above the ground. Rafael was on a wooden stepladder with three other workers who were on metal ladders. That at the moment of raising the fence, Rafael fell to the ground from the ladder on which he was standing, falling at first onto the concrete platform and bouncing off it he fell to the ground, hitting his head hard, not wearing any protective equipment staff. As a result of the blow, Rafael suffered injuries that took 463 days to heal, of which 429 days he was incapacitated for his usual occupations and 34 days in hospital, leaving him with peripheral facial paralysis, epilepsy, personality alteration, moderate cognitive deficit and dysfunction of the mandibular joint, being permanently incapacitated to carry out any work subjectof work. On the day of the accident, business"Felipe y Juan Ramírez, SL" had taken out insurance with the company "Banco Vitalicio" and the company "Alhóndiga Agrisel, SA" with the company "Axa Seguros"".
(SAP Murcia, 137/2004, of 29 November; pte. Blasco Ramón).
AA.6
The actus reus of an offence can consist not only of actions, but also of omissions(see AA.1). As stated in CPM § 2.01 (3), omission constitutes the actus reus of an offence in two possible cases: 1. when it is defined in the law as an offence; 2. when the law imposes a duty to act. However, in the Anglo-American legal tradition, the issue of (pure) omission offences is smaller than in continental law, which requires a philosophical and legal reflection that we cannot carry out here.
As regards the first group of cases, these are cases where the offence is defined in terms of a failure to act. For example, the offence of "failure to file a tax return" or the offence of "failure to stop and aid after a car accident".
As for the offences in which there is a duty to act, it has been case law that has been defining the different types of duties that can give rise to an offence of omission (the CPC does not list them). Thus, within the Anglo-American jurisprudential tradition, seven duties to act (which are related to the positions of guarantor) are distinguished: 1. Relationship; 2. Statute (that the duty is legally defined); 3. However, in order for a person who neglects his duty to act to be criminally punished, it is required that in addition to the duty, there must be: i) knowledge of the duty to act; ii) the possibility of acting and iii) "causality"[sic] between the result produced and the inactivity.
On crimes of omission arising from failure to comply with a prescriptive rule : Commonwealth v. Putch (18 Pa. D and C. 680) 1932. On offences where there is a duty to act: Lane v. Commonwealth (956 S. W. 2d 874 KY) 1997. On the necessity that, in addition to a duty to act, there must be knowledge, possibility of acting and causation: Lambert v. California (355 U.S. 225, 78 S. CT. 240, 2L. Ed. 2d 228) 1957.
VOCABULARY
- Failure to act
- Breach of a legal duty to act
To get started: spanish medical residency program Puig, Criminal LawLesson 12.
For further information: Silva Sánchez, "Aspectos de la comisión por omisión: Fundamento y formas de intervención. El ejemplo del funcionario penitenciario", CPC, 1989, pp. 367-404; Silva Sánchez, "La nueva regulación de la "comisión por omisión" (article 11)", in El nuevo código penal, pp. 51-78.
Monograph: Silva Sánchez, El delito de omisión, Barcelona, 1986.
N.61 Concept of omission at Criminal Law.-
N.62 The subject of pure omission.
N.63 Commission by omission and the principle of legality.
N.64 The subject of commission by omission.
N.65 Pure omissions of guarantor.
SYNOPSIS
