Tema 3 Protected Legal Asset PDF

1. Protected legal asset However, the position that today is being most consolidated in doctrine is the one that sees in health the true juridical asset protected in this class of criminal offences The concept of health has been specified, in the most elaborate version of this last opinion - t...

1. Protected legal asset However, the position that today is being most consolidated in doctrine is the one that sees in health the true juridical asset protected in this class of criminal offences The concept of health has been specified, in the most elaborate version of this last opinion - to which I add - not as the mere absence of illness, but as “the state in which a given person normally develops his or her functions, understanding by function the exercise of an organ or apparatus”, and which “constitutes one of the prior conditions that make possible a concrete relationship of participation in the corresponding social system” three aspects: the subjective (mental and social well-being, joy of life), the objective (capacity for function) and the psycho-social (social adaptation of the individual) (CARDONA LLORENS). In such a conception, corporal integrity would not be a value independent of health but an aspect or a dimension of the same, like personal well-being, that would be integrated, also, in the wide concept of health and that would be harmed by a crime of ill-treatment, now, after the reform of Act 1/2015. This does not mean that the legislator cannot, depending on the importance of the material substrate for the conditions of life and individual and social existence, limit the freedom of disposition of the same; and this sometimes translates, as in the case of these crimes against health, into giving limited efficacy to the consent of the owner, so that the consent does not go so far as to exclude the typical nature of the conduct,maintaining the general principle of respect for health or, if preferred, the general interest (the individual does not exist) in maintaining the substrate that forms part of the legal asset. II. THE BASIC TYPE OF INJURY CRIME (ART. 147, PARAGRAPH 1) 1. Preliminary considerations However, the legislator must not base the seriousness of an injustice on considerations that may be alien to that attack or to that intensity or modality of the attack 2. Typical conduct Article 147 1. Whoever, by any means or procedure, causes another an injury that detracts from his bodily integrity or his physical or mental health, shall be convicted of the criminal offence of grievous bodily harm, with a prison sentence from three months to three years, or a fine of six to twelve months, whenever the injury objectively requires medical or surgical treatment for healing purposes, in addition to qualified first aid. simple qualified surveillance or monitoring of the course of the injury shall not be deemed medical treatment. 2. Whoever, by any means or procedure, causes another an injury not included in the preceding Section, shall be punished with a fine of one to three months. 3. Whoever hits or causes minor bodily harm to another without causing injury, shall be punished with a fine of one to two months. 4. The criminal offences described in the two preceding Sections may only be prosecuted if the injured party or his legal representative files a formal complaint. the proper nature of crimes of result, since the typical conduct is not satisfied with the mere external manifestation of the will to injure, on the part of the aggressor, but it demands the production of an effective injury, that undermines corporal integrity or physical or mental health, or effective ill-treatment. The basic type in Article 147 (1) of the CC, punishes, with imprisonment from three months to three years or a fine of six to twelve months, anyone who, by any means or procedure, causes an injury to another person that impairs bodily integrity or physical or mental health. In accordance with the concept of the legal asset set out above, impairment of bodily integrity or physical or mental health must be interpreted as a temporary or permanent alteration of one or more of the systems, structural or functional, which together define the health of a person. However, in the text of the Law, a small note is added to this key description of the conduct: whenever the injury objectively requires, in addition to initial medical care, medical or surgical treatment for health, whether or not it belongs to the typical conduct of the crime is not entirely clear. from my point of view, those who affirm that the need for medical or surgical treatment belongs to the result of typical conduct are right, because the Law, from among all the subsequent consequences of the aggressive action, has wanted precisely to select, as a basic criterion that is the basis for an unjust criminal offence constituting the crime of injury, the requirement of what is necessary for the healing of the injury. it now remains to resolve what exactly is to be understood, in the text of Article 147, paragraph 1, as “objectively requiring for health, in addition to initial medical or surgical treatment”. The doctrine had agreed that the only relevant thing, to these effects, should be the injury originally produced, considered objectively and the legislator seems to have left the problem resolved in favour of this option. the authentic interpretation of the concept of medical treatment introduced in the last paragraph of Article 147(1) by the original wording of the 1995 Criminal Code is also appropriate, according to which “simple medical monitoring or follow-up of the course of the injury shall not be considered as medical treatment”. The 1995 legislator seems to have accepted this view, so that in Article 2.1. 147(1), the need for only initial medical care for the healing of an injury means that the injury is of such a state that its healing is achieved by the intervention, care, indications or prescriptions received in a first and single action by the doctor or qualified medical personnel aimed at eliminating, alleviating or diminishing the harmful effects to health of that injury; this does not exclude the possibility that, where appropriate, in addition to that first intervention, there may be a subsequent check-up action (which may consist of the mere observation of the injury; the examination of the patient, the removal of dressings, bandages, plaster casts or stitches, etc.), thus confirming that the injury has been healed. Nevertheless, the need for medical or surgical treatment for the healing of the injury means that the state of the injury is such that for its cure, the doctor or qualified health personnel must repeat or reiterate that care, those indications or prescriptions tending to eliminate, alleviate or diminish the harmful effects for health of such injury, applying to the patient, in each one of them, and until obtaining his/her complete or possible recovery, the knowledge, technique or science that he/she possesses. This seems clear in the case of the so-called non-violent means of restraint since the Law itself expressly allows for “any means or procedure” of causing injury. In the case of the commission by omission, the difficulties are certainly greater, but not insurmountable Nor should the reference to the use of “means or procedures” exclude commission by omission, because the full expression of the Law 3. Subjective type Basic type commited with malice 4. Iter Criminis Within the basic type of the offences of injury in Article 147(1), both unfinished and finished attempts are theoretically possible. What happens is that it will pose difficulties in determining which precept is applicable when the execution of the typical acts does not reach the final consummation. In my opinion, in these cases what we are faced with is a concurrence of laws between the possible applicable precepts, which are, among themselves, in a relationship of relative or improper consumption (COBO DEL ROSAL and VIVES ANTÓN). From the moment we accept that the malice of the greater encompasses in itself the malice of the lesser, both contemplate the totality of the devaluation and the reproach assigned by the legal order to the conduct and, therefore, by virtue of the provisions of Article 8, rule 4, of the Criminal Code, the applicable precept will be that which attributes a greater penalty to the conduct. The solution applied by the SC to the above case is, then - and from our point of view - the correct one, although the argument as to why should not be simplified by a desire for objectivism or to give primacy to the result over the intention of the subject, but to a concurrency problem posed by a certain legal regulation of criminal types. Article 151 Provocation, conspiracy and the solicitation to commit the criminal offences foreseen in the preceding Articles of this Title shall be punished with a penalty one or two degrees below that set for the relevant criminal offence. III. MITIGATED TYPE OF MINOR INJURIES AND TYPE OF ILL￾TREATMENT (ART. 147, PARAGRAPHS 2 & 3) in the basic type of the offence injury in Article 147(1), the minimum sentence limit, which was previously six months, has been changed to include, as an alternative sentence, which was not previously included, a fine, so that the basic type is now punishable by imprisonment of three months to three years or a fine of six to twelve months where it was previously punishable by a sentence of six months to three years which established: “however, the act described in the previous paragraph shall be punished with a prison sentence of three to six months or a fine of six to 12 months, when it is less serious, depending on the means used or the result produced”, has disappeared, “stuffed” now in the basic type which has been given more penological scope. In its place, a new type of offence of injury has been included in Article 147, paragraph 2 In the new Art. 147, paragraph 3, the old misdemeanor of ill-treatment, without causing injury, has become a crime, which will be punished with a fine of one to two months. IV. AGGRAVATED TYPE OF INJURIES (ART. 148) Article 418 The bodily harm foreseen in Section 1 of the preceding Article may be punished with a sentence of imprisonment of two to five years, in view of the result caused or the risk produced: 1. If weapons, instruments, objects, means, methods or ways that are specifically dangerous to life or health, both physical and mental, of the injured party, were used; 2. If perpetrated with wanton cruelty and premeditation; 3. If the victim is under fourteen years old or is a person requiring special protection; 4. If the victim is or has been the wife, or woman bound to the offender by a similar emotional relation, even when not cohabitating; 5. If the victim is an especially vulnerable person who lives with the offender. Article 148 of the CC contains aggravating circumstances or aggravations of the basic type, which will allow the sentence to be increased to two to five years' imprisonment, depending on the result or risk involved, depending on a series of circumstances: 1st , if weapons, instruments, objects, means, methods or forms specifically dangerous to life or health, physical or psychological, of the injured person have been used in the attack; 2 nd, if there mediated ruthlessness or malice aforethought; 3rd, if the victim is under 14 years of age or a person with a disability in need of special protection; 4th, if the victim is or has been a spouse, or a woman who is or has been linked to the perpetrator by a similar relationship of affection, even if they do not live together; 5th , if the victim is a particularly vulnerable person living with the perpetrator judges must be extremely cautious in their application and appreciate it only where, because of age, the child has a weaker physical structure, which has meant that the risk incurred or the harm suffered has been greater than is reasonably normal. The SC has understood that when young age has been assessed for the application of malice, it is not appropriate to apply this circumstance as an aggravating factor (SCR2- 3-2004). Also surprising is aggravation of the penalty for the case where the victim is a person with a disability in need of special protection. It should be borne in mind that, in accordance with the normative concept of disability offered by Article 25 of the CC, which has been modified by Act 1/2015, all those persons with permanent physical, mental, intellectual or sensory impairments who, by interacting with various barriers, may limit or prevent their full and effective participation in society, on an equal footing with others, are disabled. V. TYPES OF SERIOUS INJURIES (ARTS. 149 & 150) Article 149 paragraph 1, punishes, with imprisonment from six to twelve years, anyone who causes another, by any means or procedure, the loss or inability to use a major organ or limb, or of a sense, impotence, sterility, serious deformity, or serious somatic or mental illness. Paragraph 2, for its part, punishes with the same penalty anyone who causes another to undergo genital mutilation in any of its manifestations, and if the victim is a minor or a person with a disability in need of special protection, the penalty of special disqualification from exercising parental authority, guardianship, tutelage or foster care for a period of four to ten years shall be applicable, if the judge deems it appropriate to the interest of the minor or the person with a disability in need of special protection. The SC, over the course of extensive - and sometimes changing - jurisprudence has established the “general concepts” of principal and non-principal organs or limbs, and then, quite casuistically, has determined specifically which should be considered, for criminal purposes, principal and non-principal limbs or organs; though not always in a way that is totally consistent with its own general concepts. In short, only those physical irregularities of an irreversible nature should be included in the concept of deformity for the purposes of the application of the aggravated type of Art. 150 CC, so that, despite an intervention of reparative surgery, it is only possible to diminish or attenuate its effects, without it being possible to restore it in its totality, remaining in the affected area as an indelible mark, and leaving a defective imprint on the subject who suffers it of important aesthetic repercussions and equated with the loss or uselessness of a non-main organ or limb. VI. TYPES OF RECKLESS INJURIES (ARTS. 152 & 152 BIS) Article 152 VII. TYPE OF SPECIAL INJURIES (ART. 153) Article 153 1. Whoever, by any means or procedure, causes another mental damage or an injury less serious than those outlined in Section 2 of Article 147, or who hits or abuses another by action, without causing such person an injury, if the victim is or has been his wife, or a woman with whom he has been bound by a similar emotional relation, even if not cohabitating, or an especially vulnerable person who lives with the offender, the offender shall be punished with a prison sentence of six months to one year, or community service from thirty-one to eighty days and, in all cases, deprivation of the right to own and carry weapons from one year and a day to three years, as well as, if the Judge or Court of Law deems it appropriate in the interest of the minor or person with disabilities requiring special protection, barring from the exercise of parental rights, guardianship, care, safekeeping or fostership for up to five years. a) if the perpetrator is a man and the victim is or has been his wife, or a woman who is or has been linked to him by a similar relationship, even if they do not live together, or a particularly vulnerable person who lives with the perpetrator, the penalty shall be imprisonment for six months to one year or community service for thirty-one to eighty days and, in any case, deprivation of the right to keep and bear arms for one year and one day to three years, as well as, when the judge or court deems it appropriate to the interest of the minor or disabled person, disqualification from exercising parental authority, guardianship, curatorship, custody or fostering for up to five years (art. 153(1)); b) if the author is female and the victim is or has been her husband, or a man who is or has been linked to the aggressor by a similar relationship, even if they do not live together, or a particularly vulnerable person who lives with the author, or if the author is male or female, the deeds pertain to his or her descendants, ascendants, siblings by nature, adoption or affinity, either his or her own or that of the co-habiting spouse, or on minors or disabled persons who live with him or her or who are subject to the power, guardianship, curatorship, fostering or de facto care of the spouse or partner, or on a person protected in any other relationship by which he or she is integrated into the nucleus of his or her family However, there is no aggravating circumstance for descendants, ascendants or siblings by nature, adoption or affinity, whether their own or those of the spouse or partner, or for minors - who are not under 14 years of age - or persons who are subject to the power, guardianship, curatorship, fostering or de facto care of the spouse or partner, or for persons protected in any other relationship by which they are integrated into the nucleus of their family life VIII. TYPE OF BRAWL QUARREL (ART. 154) Article 154 Those who brawl, attacking each other in a disorderly manner and using means or instruments that endanger the life or integrity of persons, shall be punished for their participation in the brawl with a sentence of imprisonment from three months to a year or fine from six to twenty- four months. Therefore, personal and direct aggression, or even two subjects forming a common cause against a third party, cannot be understood to be included in this precept, but rather in the corresponding ones of injuries. Secondly, that in such a fight these various physical aggressors attack each other in a riotous manner (confusingly and riotously, as the previous Article 424 said), that is, without it being possible to specify who the aggressor was for each one. Thirdly, that in this brawl fight there is someone (or several) who uses means or instruments that endanger the life or integrity of people. It is not necessary that they be used by all those involved. Fourth, that, all three elements being equal, all those who would have participated in the fight are the perpetrators of this crime. It must be understood that all those who would have participated on the side of those who have used these dangerous means, if in any of these sides no one has used them. Obviously, as required by the principle of guilt, the participants who have not used these dangerous elements will have to know that one or some of their group did use them, on the understanding that when the harmful result is produced, Articles 147 and concordant Articles take precedence in their application, consummating the illegality inherent in the crime of danger, although obviously this punishment for the cause of the result has as a condition that the cause of the injury is known. IX. REGULATION OF CONSENT IN INJURIES (ARTS. 155 & 156) Article 156 Notwithstanding what is set forth in the preceding Article, valid, free, conscious and specifically expressed consent shall exempt from criminal accountability in cases of organ transplant carried out pursuant to the terms of the Law, sterilisations and transsexual surgery carried out by a surgeon, except if the consent obtained is flawed, or obtained by price or reward, or if the person consenting is a minor or is devoid of capacity to give such consent, in which case that provided by him or his legal representatives shall not be valid. Article 155, therefore, gives consent a mitigating, not exempting, effect, provided that it has been given in a valid, free, spontaneous and express manner, and the subject is an adult or capable person or, if you like, not a disabled person in need of protection. Finally, I will point out that consent must be given freely in order to be effective, so that if its granting has been vitiated or conditioned by the person who obtains it, it will not be valid. As to its form, consent can be express or presumed, although in the case of Articles 155 and 156 there is a requirement that it be express, thus excluding the presumed one it is not necessary for the perpetrator to know the consent of the passive subject, because even if the subject thinks that he/she is acting without consent, and therefore with malice, he/she is not harming any legal asset, since the owner of the asset is exercising it. However, to require that the consent be express, within the scope of Articles 155 and 156, seems to be a requirement of knowledge of the consent on the part of the passive subject.