Vicarious Liability and Criminal Law: A Comprehensive Analysis
Art. CP 121 contains specific provisions for state vicarious liability for harm caused by public employees who are criminally liable if the injury is a direct result of the operation of public services.
The text includes only vicarious liability for intentional or reckless crimes, excluding misdemeanors. Arguably, this exclusion is intended to prevent forcing criminal responsibility to qualify the event as needed solely to establish liability. However, this should be avoided by establishing efficient mechanisms for state compensation for damage arising from the operation of public services, which would obviate forcing the criminal charge.
Cases where compensation cannot be obtained in criminal proceedings should be routed to the liability requirement for normal or abnormal functioning of public services, according to the rules of administrative procedure.
Repair of the Crime: An Alternative Sentence?
Attributing an important role in the punitive system to repairing the crime, a victim-oriented approach is chosen to overcome the “classic” Criminal Law, as exemplified in cases of subjects who do not need rehabilitation.
The need to focus on the victim, making it an object of attention for invoking criminal law and criminal law as ultima ratio, would advise replacing traditional punishment with a less aggressive intervention: repairing the harm done to the victim. Reparation to the victim has a beneficial preventive effect, particularly on the perpetrator, who thus better understands the scope of their behavior.
Reparation to the crime victim as a penalty (primary or secondary) is, at least as a starting point, doubtful: that criminal law be used to “solve the problem” of the victim.
Criminal law is geared toward preventive purposes and social regulation rather than compensating victims, although penalties should be proportionate to the seriousness of the facts, and the victim’s degree of involvement should be assessed, as is done in property crimes. The penalty does not apply to repairing the damage caused to the victim but to the citizens, confirming the validity of criminal law as a legal conservator and demonstrating the State’s presence in managing coexistence.
Criminal liability is liability to the State, not a means of settling disputes between private parties (the perpetrator and the victim). The issue of criminal liability arising from civil obligations (civil liability) is separate. The State must establish mechanisms to make them effective; state vicarious liability in cases of insolvency or inability to compensate is necessary. The State’s care for the effectiveness of civil obligations cannot be confused with criminal liability.
The most important argument for separating criminal and civil liability lies in the different criteria governing their weight: punishment should be proportionate to the seriousness of the act, and liability must equal the damage caused, which may be lower or higher than the crime’s seriousness. Example: A terrorist placing an explosive, causing reckless damage (broken glass) and tetraplegia to a victim. The criminal response could not address damage repair because it would be grossly disproportionate: either an excessive sentence for minor conduct or a ridiculous penalty for serious conduct. Repair must be accompanied by another penalty in serious cases to distinguish between the severity of the conduct and injury.
Accessory Consequences
Arts. CP 127 to 129 contain institutions difficult to classify among the traditional legal consequences of crime, as they cannot be considered remedial action for damages, punishment, or security measures.
- Penalties are not commensurate with the crime’s severity or the author’s guilt.
- They cannot be considered security measures because they are based on a trial on the charge of personal danger.
The CP groups them under this category, indicating they are consequences (of crime), ancillary to the penalty. They may affect certain goods or activities related to the crime’s commission and focus on avoiding criminal continuity. See Arts. 127, 128, and 129 CP.
Seizure deprives the custodian of the offense’s “effects,” goods used in its commission, and profits obtained. If seizure of non-lucrative items is impossible, seize the “equivalent value” (Article 127.1 and 3). Confiscation of crime proceeds and effects seeks to prevent the perpetrator’s unjust enrichment, the traditional basis of confiscation. However, seizing goods or instruments used in the offense is better directed at countering the objective danger of such property to prevent crime recurrence. Seizure is agreed upon, but objects have undergone transformations, unless they belong to third parties in good faith who acquired them legally.
Recent seizure regulations have extended to include confiscating the “equivalent value” of property used to commit crimes when it cannot be confiscated. This departs from the seizure’s foundation because it does not fall on potentially hazardous objects but on a cash amount or equivalent assets, closer to a financial penalty. It recovers some of the grief that had been tried to overcome, plus judicial discretion to waive forfeiture if the objects are of lawful commerce and deprivation can be disproportionate.
Cancellation of Criminal Background
Criminal history, registered in the Central Register of Convicted Persons and Rebels of the Ministry of Justice, is not a result of the crime itself but a burden on the offender. A criminal record is required to enter the administration, hold certain jobs, etc.
To mitigate these effects, the CP regulates canceling a criminal record, which may occur ex officio or upon request if the requirements of Art. 136 are met: having satisfied civil liability (except in cases of insolvency) and certain deadlines have passed without re-offending. The period is counted from the day following the sentence’s extinction, and in case of suspended sentence execution, from the day following its issuance.
If deadlines pass without cancellation, the CP treats the background as canceled where its existence undermines the defendant, in the aggravating circumstance of recidivism or granting suspended sentences.
Despite reducing the effects of criminal history, the CP has not deleted this institution due to its stigmatizing effects on the offender, limiting it to mere judicial effects that are practically nonexistent if recidivism purposes are renounced—a fact about which the main virtual tour of the history focuses.