Criminal Law Analysis: Assault, Battery, and Torture in Spanish Law
PEC 2
1. Rate legally made the following assumption, justifying the reasons for the qualification: Joseph and Anthony engage in a fight in a pub, speaking at that moment that separates a client without having it come to serious consequences. An hour later, Antonio leaves the room and wait for Jose with the intent to continue the discussion. Moments later Joseph left the pub, and to pass by Antonio, he (Antonio) begins to insult him, without Joseph Ignore him. This bothers Antonio that all of a sudden he punches Joseph in the face, falling to the ground and beating Joseph with his head against the sidewalk. Antonio stooping to lift back to Joseph and then beating him and tells Joseph that “sees nothing”. Moved Joseph to the hospital, is diagnosed with a permanent blindness suffered by the impact to the head.
Without going to assess the question of the discussion that takes place inside the premises, because nothing is given as evidence that can be incardinated in any criminal offense, the events that occur below (and outside the pub) is a crime subsumed within what we are concerned in the current module. Offenses against the physical and psychological or mental health.
The important point is that the course ends with a typical action resulting in serious injury section 149 of the CP, although this result seems to go beyond what was initially intended by the author (Antonio). One might initially think that Antonio could have expected a more serious prejudices which in principle would cause and that the forecast is for baastante intense as seen in its conduct a virtual intent covering the area of the crime of serious injury of Article 149
CP
However, we start from some basic assumptions such as considering that because the action of Antonio is subsumed in the rate of 149 ha of acting with intent to cause these injuries.
The subjective element is therefore required, and it is necessary to explore and probe the same through the objective data and indices which, in a Court cites our Supreme Court (circumstances of the particular situation, the means used, the forms employed, the number of acts performed, and ultimately all the “iter” journey before, during and after the action).
If detected objective evidence of what can be inferred that the intention or the spirit or the intent to cause injury Antonio was not excessive entity. The action of giving a single punch is not directed-obviously-a cause injuries beyond a basic type of Article 147.
We can speak of a need because, if anything, that one blow was severe enough to drop down to Joseph. So presumably, the injuries that had caused him (arising solely from the punch) would require medical treatment (possible broken nose).
Nevertheless, the result that finally took place (loss of sense of sight, within the ambit of Article 149 -) means that we are faced with a more serious than initially wanted or intended by Antonio. And it directs us toward the figure of the felony (in this case homogeneous-physical and bodily integrity “) to adequately evaluate and describe this behavior.
The structure of this figure includes the commission of a willful typical action and produce a result that is beyond the scope of its author’s intent but that title is attributable to negligence.
And it must accept that the complaint may result in response to the subjective requirement of predictability and preventability of this result. If this were, in the abstract, unpredictable or inevitable, these notes define the course and unforeseeable circumstances and therefore do not generate criminal liability.
But this is not what happened in the case study in which it is certainly foreseeable possibility, in the abstract of a more serious harmful result intended.
From the perspective of average caution it could be argued that there is a slight negligence, but I tend to think that serious imprudence has attended since the punch so hard, undoubtedly increases the risk that the person who receives it falls to ground and hitting (as indeed it happened) in the head.
We therefore conclude that this is an ideal contest between a crime of assault of Article 147 is attempted and willfully committed a completed crime of serious injury recklessly committed Article 152
1, 2 of CP.
2. Rate legally the following facts, reasoning the answer: José had gone with her son to soccer to a game of maximum excitement and rivalry. When they reach the stadium and are about to enter through the gates, a large mass of people gather for the same purpose. In order to achieve the earliest pass (since it was a small field in which the locations are not numbered and allocated to the inputs), José Antonio nudging was just ahead of him, causing the latter is of a coup against the doorway and break the elbow. This does need to be cast and not being able to use the arm for 30 days.
The case study describes the commission of reckless injury to a lack of Article 621
3 of the CP, despite the harmful result occurred outside a broken elbow and this would fit in Article 147 of the CP to specify for your healing more than medical care and medical treatment.
As we know, the legal standard to define the crime of assault of a lack focuses on determining whether for healing of injuries has required a medical or surgical treatment in addition to an initial medical or optional.
In the case study talking about injuries that would involve the commission of a crime, but certainly such injury (Article 147) would be committed intentionally. Certainly the conduct of Joseph can only be considered in the key of recklessness, because without being given details, we can not say that Joseph had had the intention of violating the physical integrity of the vwho are victims but only to depart to spend with her son to the stadium. Therefore, the negligence is slight, since the push to tip the taxpayer does not indicate that either excessive intensity. Drawing on his dangerous little push, and therefore the means used can argue that this is not a willful misconduct, or even as an eventual intent, but to a bolder and mild. On the other hand, is not a crime punishable for those cases in which injuries caused by slight negligence of Article 147, and in such cases explicitly criminalizes the failure of Section 621 No 3.
3. Rate legally the following facts, reasoning the answer: Antonio is a police officer who has knowledge through a confidant of Joseph (which had numerous criminal records for violence), was retained and hidden somewhere in another agent policeman who had disappeared for days. This leads to detencióion of Joseph, which is transferred to the station, there is achieved without revealing the whereabouts of the said police. So when the two are left alone, Antonio Jose injects a chemical so that it says everything he knows. Produced the effects of the substance, Joseph reveals the whereabouts of the police finally released. Two days later, Jose has to be admitted to a medical center suffering from an intoxication that produces numerous vomiting and diarrhea.
Antonio will be direct perpetrator of a crime of torture in Article 174 of the CP because their behavior typical resquisitos attend the offense: it is a public official (police) arrested submits to a process that results in the inability to discern and decide on their behavior, and the aim is to obtain a confession. Yet we must ask whether this is a serious offense or not (which will affect the sentence to impose significantly). In this case, if we consider the broad spectrum of ways in which a human can beía being tortured, I seem more proportionate in law think that supply a substance of this kind involves a course of serious qualified as threaten the moral integrity. Moreover, even where the conduct was intended to release another policeman who was kidnapped (which eventually does) this is not sufficient to justify the occurrence of a state of necessity in Article 20 No 5. This is so because if we go to our Constitution, we see that, under Article 15 prohibits anyone being subjected to torture under any circumstances, thereby preventing the possibility of attending a justification.
The substance injected caused vomiting and diarrhea that could be classified José-ab initio-like lesions of a lack of Article 617, the entering what would be a real contest between a crime of torture and lack of injuries.
1. Indicates the elements or essential requirements to implement the type of crime of “torture.”
The Convention against Torture and Other Cruel, Inhuman or Degrading (CTPCID) of 10 December 1984, in Article 1 marks the sense of the word “Torture” in the international sphere, the above standard (effective in the Spanish state since 20/11/1987) provides a definition of “torture” that brings the elements or essential requirements to apply the offense as “torture”, and that the Spanish legal system is criminalized in Article CP 174:
1. The “provocation of physical or mental suffering.” Included in the type situations beyond the provocation of pain and anguish, as the “abolition or reduction of the powers of knowledge, discernment or decision”.
2. The note of “State crime”, namely the requirement that the offender is a public servant and also “abuse of office” (to see this, you must have assigned a role which might abuse “relative to the investigation and prosecution of criminal acts “), you can not establish when produced on private grounds (Article 175 PC). It reflects whether state action occurs outside the formal structure of power, ie, using people with no official status.
3. The aim is “to obtain a confession or testimony concerning information of public importance,” considered “willful commission.” Incorporates not “torture to others”,ie when there is no overlap between torture and the person from whom information is sought.
Finally say “torture” is a “special offense improper”, which is not supported by exemption from criminal liability:
– “Self-defense”.
– “Necessity”.
– “Legitimate exercise of a charge.”
2. Consideration of the crime of assault. Basic types and subtypes worsened
Article 147 CP provides the general concept of “injury” valid for all typical forms of injury, defining the type and”An impairment in body or physical or mental health” (legal rights protected), including misdemeanors specified in articles 671.1 and 623.3 CP. Although there is a doctrinal sector (from the contribution of Berdugo, 1982) important, considering that “bodily integrity occupies a subordinate office on health”, ie protecting the physical integrity to the extent that injured regards an deteriorating health of the subject.
As a common aspect should be pointed out recently that “crimes of injuries” have a “tangible result” (except as set forth in Articles 153 and 154 PC), so it can support the “attempted finished or unfinished. Also, as a general rule you for admission in “degree of commission by omission”, To be able to meet with prohibitive rates of causes, with some exceptions where the meaning of the law does not allow being able to match the failure to prevent the outcome and causation (articles 148 Assumptions 1 and 2nd, 153 and 154 PA).
Basic type (Article 147.1 of the Criminal Code):
includes the elements of the injuries constitute a crime common to various modalities typical of Articles 147.1 and 2, 148, 149, 150 and 152 CP.
The criterion that the injuries must be classified as a crime is necessary for healing “objectively” (reinforces the dominant interpretation in doctrine and jurisprudence that “requiring medical treatment” is a legal criterion for assessing the severity of the injury, which necessitates taking into account the conventional curing procedure), a“Medical or surgical treatment” (only one that has curative, simply does not provide medical surveillance or monitoring optional course of the injury), plus an optional attendance in advance.
Aggravated primary subtypes (Article 148 of Criminal Code), five types that require the concurrence of the requirements of basic type (Article 147.1 PC):
1. Injuries dangerous environment (Article 148.1 PC): remission of danger not only to life but also the physical or mental health (type of real danger). The danger is the risk of causation, using weapons or dangerous objects of any of the injuries typified in Articles 149 or 150 CP.
2 º. Lesions with “malice“ or “treachery“ (Article 22.1 º and a PC): the“Malice,” meaning defined in Article 22.5 CP is compatible with the other assumptions identified in the Article 148 CP, so that if there is “competition” and if we are within a mixed type alternative, you can apply the corresponding generic aggravating circumstance.
3 º. Victim unable (art. 25 CP) or under twelve: This fact is justified by the particular vulnerability and helplessness of certain individuals, although there are doubts about its timing, if we consider the existence of the aggravating circumstances of “treachery” (Article 22.1 CP) and the “abuse of authority” (Article 22.2 PA).
4 º. Victim of gender violence: Introduced as a new type qualified by Law 1 / 2004 of 28 December, for if the victim is or was the wife or woman tied to the author by a similar relationship of affection, even without cohabitation. This concept is a presumptionirrebuttable particularly vulnerable in the event of aggression by men against women, marital or emotional bond exists, as reflected by the differential treatment of injuries that make up the course qualified presented below.
5 º. Victim especially vulnerable: This event was added by Law 1 / 2004, previously mentioned, and it allows to include in other situations of vulnerability than those expressly provided for in paragraphs 3 and 4, as the elderly or affected by generating some decrease dependency on active subject.
Besides the types qualified under Section 148 CP, various types of “crimes of aggravated assault” by the severity of the harmful result (Articles 149 and 150 PA), whose common element is the “permanency.”