Criminal Law: Error, Unlawfulness, and Defenses
Criminal Law: Error
From a criminal perspective, error is defined as “the ignorance or misrepresentation of any or all facts considered unlawful or their significance.” Plato distinguished between ignorance (a complete lack of knowledge) and error (false knowledge). There are two main types of error:
Types of Error
- Error of fact (error facti): A mistake concerning the elements of the offense.
- Error of law (error juris): A mistake concerning legal elements.
Further distinctions include:
- Error in the object: The action is directed at an object other than the intended one (e.g., mistaken identity).
- Error in the blow (aberratio ictus): The action is directed at the intended object, but affects a different one.
- Error in the prohibition: Ignorance that the conduct is forbidden, despite knowing the action itself. This can stem from believing the conduct is lawful or that a justification exists.
Article 14 of the current Criminal Code states: Invincible error regarding an act constituting a criminal offense excludes criminal responsibility. If the error concerning the circumstances of the act and the person of the author was beatable, the offense will be punished as reckless. Error regarding an aggravating circumstance prevents its application. An invincible error excludes liability; a beatable error results in reckless misconduct.
Excluding Unlawfulness: Justifications
Justifications prevent a conduct described in the Penal Code from being punishable. These are often called “defenses.” In the Spanish system (Articles 19 and 20 of the Criminal Code), they are termed “causes exempting from criminal responsibility.”
Self-Defense (Article 20.4)
Self-defense exempts from criminal responsibility those acting in defense of their own or others’ person or rights, provided the following conditions are met:
- Illegitimate aggression: In property defense, this is deemed unlawful aggression when there’s a serious risk of impairment or impending loss. In dwelling defense, it’s improper entry.
- Rational means employed to prevent or repel aggression: Legally defensible means, including defense of others.
- Lack of sufficient provocation: The provocation wouldn’t have caused an aggressive reaction in an average person.
The aggression must be real, not imagined (“putative defense”). In mutual brawls, proving who initiated the aggression is crucial. Proportionality between the attack and the defense is essential.
Rule of Necessity (Article 20.5)
This exempts from criminal liability those who, to avoid harm to themselves or another, infringe a legal right of another or violate a duty, provided:
- The harm done is not greater than necessary.
- The situation wasn’t intentionally caused by the subject.
- The person acting under necessity has no obligation to sacrifice (e.g., soldiers, firefighters).
Case law defines necessity as “a state of present danger to legitimate interests, avoidable only by injuring the legitimate interests of others.” It requires imminent danger, a lack of less harmful alternatives, and a violation of a duty only when disobeying a binding order to avoid serious harm. Necessity can be:
- Own: Protecting oneself.
- Foreign (ajeno): Protecting another.
Putative necessity involves a mistaken belief that the necessity exists. Incomplete necessity occurs when the action exceeds what’s necessary (e.g., excessive damage to a neighbor’s house to prevent a fire). This includes concepts like “necessary theft” (stealing food to survive).