Grounds for Excluding Criminal Liability in Venezuelan Law
Unlawfulness Exemptions: When a person could harm another, but the criminal law exempts them from liability due to justification.
Categories of Unlawfulness Exemptions:
A. Self-Defense: As stated in Article 65, Ordinal 3 of the Venezuelan Penal Code.
B. Equivalent to Self-Defense: Article 65, penultimate paragraph of the Penal Code.
C. State of Necessity: Article 65, last paragraph.
D. Exclusion of Criminal Responsibility Related to Professions or Trades: Article 65, first paragraph.
E. Exclusion of Criminal Responsibility Due to Obedience: Article 65, first paragraph.
Legitimate Defense: When a person is attacked and defends themselves (or another) from harm or death, they are exempt from criminal liability if they meet the requirements of Article 65, Ordinal 3 of the Penal Code, which are:
A. Unlawful Violence: Any act contrary to the law that endangers the physical integrity of the victim. Example: Pedro threatens Juan with a gun to steal his cell phone; Pedro commits a crime.
B. Proportional Defense: The defense must be proportional to the aggression. If the aggressor uses a stick, the victim cannot use a firearm. Example: Pedro robs John at gunpoint, John disarms Pedro and shoots him dead. The weapon used by John (the victim) is proportional to the aggressor (Pedro).
C. No Provocation: The victim must not have provoked the attack. This includes insults or other forms of instigation. Example: Pedro robs John at gunpoint, and John immediately shoots and kills Pedro without any prior provocation, threat, defamation, or injuries from Pedro.
Observation: Self-defense is only applicable when there is a risk to physical integrity, not merely to defend property. This applies to criminal, civil, military, and police contexts (Art. 65, Penal Code).
Equivalent to Self-Defense: Excluding criminal responsibility when a person harms another believing they are in danger, experiencing fear, terror, or uncertainty.
A. Fear: When a person believes someone will harm them.
B. Terror: When a person experiences a panic attack and feels imminent danger.
C. Uncertainty: When a person is unsure of the other person’s intentions.
To be exempt from criminal liability, the person must meet all these requirements.
Legal Basis: Article 65, penultimate paragraph of the Venezuelan Penal Code.
Example: Maria Rodriguez leaves class at 11:00 PM and, unable to get a taxi, walks home through a poorly lit area near the old slaughterhouse. Suddenly, a man emerges with a long object in his hand. Due to the darkness, Maria cannot see clearly, fears for her safety, and feeling alone and uncertain, draws her licensed gun and shoots the man eight times, killing him. It turns out the man was holding a broomstick. Maria is exempt from criminal liability under Article 65, penultimate paragraph, because she experienced fear, the area was dangerous, she felt terror, and she was uncertain about the object in the man’s hand, believing it was a shotgun. Jurisprudence supports this exemption in similar cases.
Doctrine: Many authors call this type of defense “putative self-defense,” where the person carries a weapon and reacts to defend themselves, often mistaking objects for weapons.
Example: Pedro Rodriguez is at the bakery when Carlos Perez enters with a toy gun and demands money. Pedro, believing it’s a real weapon, shoots and kills Carlos. Pedro is exempt from liability.
State of Necessity: When a person harms another to save their own life or the life of a third party (family). To be exempt from criminal liability, three elements must be present:
1. Serious and Imminent Danger: The person must be facing a real threat to their physical integrity.
2. No Prior Fault: The person must not have caused the dangerous situation.
3. No Other Option: There must be no other way to save their life except by harming another.
Legal Basis: Article 65, last paragraph.
Example: Pedro and his wife Maria are on a ferry when a large wave capsizes the vessel. There are no life rafts or other people to help. As they are both drowning, Pedro hits Maria, causing her to drown, and saves himself. Pedro is exempt from criminal liability due to necessity, as he meets the requirements of Article 65, last paragraph: He was in imminent danger, he did not cause the danger, and he had no other choice to save his life.
Profession or Trade as a Justification: When a person causes harm while acting within the rules and regulations of their profession or trade.
Profession: A person who has obtained a college degree.
Trade: A person who has acquired skills without a college degree.
Position: A person who works with a public body and has authority.
Legal Basis: Article 65, first paragraph.
Example: A boxer who injures their opponent during a match is exempt from criminal liability, as they are acting within the rules of boxing.
Example: Pedro, a municipal police officer, arrests a person suspected of bank robbery. The person is detained for 10 hours but is later found to be innocent. Pedro is exempt from criminal liability for illegal deprivation of freedom, as he was acting within his authority and the detention period was less than the 12-hour limit allowed by the Organic Code of Criminal Procedure for investigation.
Judges must ensure due process when deciding cases involving deprivation of liberty.
Example: A doctor amputates a patient’s leg without family consent to save their life after a serious traffic accident. The doctor is exempt from criminal liability, as they were acting in accordance with their professional oath to save lives (Art. 65, first paragraph).
Obedience to Lawful Orders: When a person obeys orders that may infringe on the rights of another, but this applies primarily to military and police personnel governed by rules where disobedience is punished. The person must comply with due process. If an arrest is made on orders from above, it must be legally justified. The person obeying the order is exempt from criminal liability (Art. 65, first paragraph). This applies to military or police superiors ordering subordinates, even if it affects civilians. However, the Constitution prohibits orders that violate a person’s physical integrity or unlawfully deprive them of liberty. Those who issue such orders, and those who carry them out, are liable.
Example: The President orders the military to detain a person and take them to a remote island. The military personnel claim they are obeying orders. This defense of obedience is illegitimate under the Constitution, which holds both the issuer and the executor of unlawful orders liable.
Fulfillment of Duty: Every citizen, especially military or police personnel, has a legal obligation to assist those in need, such as abandoned children, mentally ill individuals, or accident victims. Failure to do so may result in penalties (as provided by the Criminal Code).
Example: Maria Perez finds a disoriented child alone at night and takes the child home. The next day, the mother accuses Maria of kidnapping. Maria claims she was fulfilling her duty to assist a child in need and would have been penalized under the Criminal Code for not doing so. Maria is exempt from criminal liability.