Unenforceability of Conduct in Criminal Law
Unenforceability of Conduct
Assessment of fact and law based on the circumstances of the case, indicating whether a subject could adjust their conduct to the rule of law. The judge assesses if a person in a specific case was capable of adapting to the rule of law. Generally, individuals can adapt their behavior, though special circumstances exist where an average person might not know the legal duty to adjust their conduct.
In such special circumstances, an average person cannot be criticized for not deciding properly, i.e., cannot be prosecuted under the law. These circumstances require a power of resistance, a value or willpower beyond the average person.
Cases of Unenforceable Conduct
Article 10 No. 9 of the Criminal Code states: “are exempt from criminal liability: He who acts violated by an irresistible force or driven by an insurmountable fear”. This includes:
- Insurmountable fear
- Irresistible force
Fear
Roman law dictates fear must have two characteristics:
- Imminent danger
- Danger of a greater evil
This defense is effective only when the fear causes harm. The condition is that the fear must be insurmountable, depending on the scale of the fear.
Jimenez de Azua considers violence and fear as moral grounds for unenforceability. He divides the emotional cycle into stages, placing unenforceability in the early stages. Initial stages lack prudence or caution, not constituting a defense. Progressing through fear, anguish, and terror, a defense emerges. Consciousness may disappear, reaching pathological or psychological fear, only then negating criminal responsibility.
Moral Violence or Psychological Coercion
Defined as moral pressure exerted on a subject to perform or abstain from an act with criminal legal relevance, limiting their power of decision.
Elements of Coercion:
- Prior threat: An announcement of harm by a third party seeking a decision from another.
- Applied by a third party.
- Threat of harm can target the person or others.
- Threat must be wrongful: Some threats must be legally endured.
- Threat must be seriously wrong: Proportionate to the criminal act imposed. The seriousness can be viewed subjectively and objectively:
- Objective factors: Imminent evil and energy exerted by the threatener.
- Subjective elements: Personal characteristics of the threatened individual.
- Evil must be serious, actual, and imminent: Intended, already occurring, or certain to occur.
- Threatened individual should not be forced to endure.
- No other way to avoid the evil.
Requirements for Defense with Insurmountable Fear
Gustavo Labatut defines insurmountable fear as the psychological effect of moral violence, requiring:
- Imminent threatening evil
- Real and serious evil
Insurmountable fear arises in stages of panic or terror, where it’s unfair and there should be another way around.
Eduardo Novoa states disruption should be:
- Caused by real or imagined danger
- Danger dominates the will but doesn’t temporarily deprive reason, becoming insurmountable when it overcomes the will to act in a way otherwise not done.
Etcheberry believes the legislator is indifferent to fear. The fear must be insurmountable, requiring greater fortitude than a normal person, thus negating criminal responsibility. The evil must be serious and threatening, influencing the level of insurmountability.
Individuals Unable to Invoke This Defense
- Those in professions facing risks
- Those legally required to bear the feared evils (e.g., law enforcement)
Legal Nature of Insurmountable Fear
Older doctrine tends to view it as grounds for excluding criminal responsibility due to guilt (Labatut and Raymond del Rio).