Burglary and Failure to Provide Relief: Legal Aspects
Burglary: Definition and Legal Considerations
Burglary is a crime committed by someone who enters or remains in a dwelling against the will, expressed or implied, of the dweller. This criminal behavior includes not only unauthorized entry but also cases in which someone, having entered the dwelling with the dweller’s consent, refuses to leave when clearly mandated to do so. The legal basis for this crime lies in the protection of personal privacy and the inviolability of the home, not in ownership or possession.
A dwelling is defined as any enclosed space, at least partially enclosed (demonstrating the inhabitants’ will to exclude third parties), intended to serve as a habitation for a person or family, even if no one is actually present overnight. It is required that the space is used for residing and meeting the needs of everyday life, although continuous residence is not mandatory. For example, the occupation of vacant houses does not constitute this crime. This concept is factual, outside any legal consideration; therefore, it is not required that it be a traditional house (it could be a cave, a tent, or any type of substandard housing), nor is a title deed required for its enjoyment, even if illegitimate (it could be simple squatting).
Places such as snack bars, taverns, inns, and other public establishments are not considered dwellings while they are open to the public. Entering or staying in them during operating hours does not violate the sanctity of a home.
An individual does not commit this crime if they enter a dwelling to avoid appreciable harm to themselves, the inhabitants, or a third party, provided they are not offering humanitarian aid or assisting justice. Therefore, someone seeking shelter from inclement weather, temporarily accommodating small children, or preventing a crime is not considered to be trespassing. However, those who enter to witness a non-criminal act, such as adultery, are not exempt.
Burglary is aggravated when committed with violence or intimidation, and if the entered or occupied space is sacred, religious, or protected by special law or international convention.
Failure to Provide Relief: A Criminal Offense
The offense of failure to provide relief is an omissive crime, expressly defined as such in the penal code. The principles of criminality and legality require that only those crimes that are punishable are expressly set forth in the law, either in their active or omissive form.
Forms of Relevant Criminal Omission
a. Pure or Simple Omission: This is the failure to provide relief specifically criminalized in the Penal Code. It consists merely of the omission, regardless of the outcome.
b. Commission by Omission (Art. 11 CP): “Crimes or offenses that consist in the production of a result can only be understood as committed by default when the failure to prevent it, by violating a special legal duty of the author, is equivalent, according to the meaning of the text of the Act, to its causation. To this effect, the omission shall be deemed to be action:”
b.1. Position of Guarantor: This exists when there is a specific legal or contractual obligation to act.
b.2. Position of Interference: This occurs when the omitting party has created an opportunity for risk to the legally protected interest through a previous act or omission.
c. Improper Omission (Failure and Result): This generally occurs in crimes committed by public officials (e.g., a public official who has custody of documents allows another person to take them, knowing that it is for their destruction).
Relevant Articles in the Penal Code
Article 195.1 CP: “Whoever does not assist a person who is helpless and in obvious and serious danger, when able to do so without risk to themselves or others.”
Article 195.2 CP: “Whoever, unable to provide relief, does not urgently request external aid.”
Article 195.3 CP: “If the victim was caused by an accident fortuitously missed by the aid.” The penalty may be greater “if the accident was ascribed to negligence” (position of interference).
Article 196 CP: “The professional who, being obliged to do so, denies healthcare or abandons health services when the refusal or neglect results in a serious risk to the health of people.” This provision does not require a specific result, only that there is a serious health risk.