Minimum solidarity or guarantor position

by | Jun 6, 2017 | Articles | 0 comments

(The case of the businessman Guillermo Riera Díaz)

In the case of the businessman Guillermo Riera Díaz, the Criminal Court ordered preventive detention for the term of 9 months for the alleged commission of the crimes of culpable homicide, in aggravation of three people and serious injuries, in aggravation of one more person, for running over them last May 5 in Costa Verde.

These facts led us to question whether in the context of the facts the businessman had the legal duty to provide assistance to the victims, since the Public Prosecutor’s Office also formalized the complaint for the crime of failure to provide assistance.

In this sense, although at the judicial level we already have experience of judging cases related to the non-observance of technical driving rules and imprudence of drivers that originate traffic accidents with deaths and injuries; in the present case, even though there may be a confession, it must be taken into account that in order to determine the responsibility of a defendant in a traffic accident, evidence such as the ocular inspection and the experts’ reports regarding the place where the facts took place must be taken into account.

At the same time, considering the facts, we could be in front of the so-called concurrence of crimes; because the businessman also left the place taking a cab and then left the country. This conduct could constitute the crime of escape from a traffic accident typified in Article 408° of the Criminal Code[2] for leaving the place without immediately informing the authorities; it could also constitute the crime of omission of assistance typified in Article 126° of the Criminal Code for leaving the injured parties of an accident without rendering assistance.

We must specify that these conducts should not be confused with other crimes, such as for example, the exposure or abandonment of minors and incapable persons (article 125 of the Criminal Code), which require that the passive subject is in charge of the active subject (specifically those who have a special duty with the passive subject); and, the omission of aid (article 127 of the Criminal Code).

Notwithstanding the above, and according to what was originally stated, the central point is to determine whether Guillermo Riera had the duty to render aid to the victims, which has also been questioned in the pretrial detention hearing, since according to the facts of the accident three of the persons died instantly; however, one of them would have been alive for an undetermined period of time.

In our opinion, if instantaneous death is proven, the charge of this crime cannot be sustained with respect to the deceased, since, materially, it is a legal impossibility to demand a duty of assistance when the persons would have died immediately. This thesis is debatable, of course, since the crime of omission to render assistance punishes the conduct of not rendering assistance to those who have endangered the life or health of a third party with their own antecedent act[3].

In doctrine, all social actors occupy a position of duty in society, so that interaction is possible to the extent that each actor organizes himself responsibly in his position of duty according to the general mandate of “not harming” the rights of others, which is summarized in Hegel’s maxim: “be a person and respect others as persons”[4]. Following this line in the “Riera Díaz” case, the general duty “not to harm anyone” was injured (crime of manslaughter and culpable injury).

However, following the historical context of the facts, the defendant had the legal duty to render aid, either (i) personally; but without putting his own life at risk (since this would release him from liability because the category of culpability is excluded due to the existence of a state of necessity exculpating the defendant); or, (ii) by performing another action with a third party (for example, by communicating to an authority to help them).

From the dogmatic point of view, this fact is based on the so-called “Guarantor Position” due to the omission of the duty to save. Thus, this duty is activated for the bearer of a guarantor duty when a danger that can reach a third party and injure his rights has come out of his sphere of organization, therefore his duty is to inhibit the danger created. In this sense, the obligee is the guarantor of the duty to reverse a harmful course so that the existing danger remains within the permitted risk.

Likewise, within this group is interference, as a particular assumption of the duty to save; therefore, a duty of guarantor is triggered by interference for anyone who organizes something dangerous (precedent action), and must avoid the damages resulting from such action. The basis of this obligation is clear: “whoever organizes a special risk must also bear the duty to save”[5]. For example, whoever opens a ditch in a public street without securing it has the duty to save whoever falls into it. It is evident that by means of the preceding action a space of freedom of others is usurped; therefore, the required rescue has no other meaning than to revoke such usurpation[6].

Finally; and, regardless of the legal positions, the consequences of this fact, which do not constitute a fiction, should call us to the following reflection. Although as people in society we have freedom of organization (using vehicles, machines, animals, etc.), we also have duties to ensure that it does not give rise to risks that exceed what is permitted.

1] Criminal Lawyer of Estudio Linares Abogados. Master in Criminal Law. University Professor.
2] “Whoever, after an automobile accident or other similar accident in which he has been involved and which has resulted in injuries or death, leaves the scene to avoid identification or to evade the necessary verifications or leaves for reasonable reasons, but fails to report immediately to the authorities, shall be punished with imprisonment of not less than six months nor more than four years and with ninety to one hundred and twenty days-fine”.
3] Article 126 of the Criminal Code describes it as follows: “Whoever omits to provide assistance to a person who has been injured or incapacitated, endangering his life or health, shall be sentenced to imprisonment for a term not exceeding three years”.
[4]Hegel, George Friedrich Wilhelm, Grundlinien der Philosophie des Rechts – oderNaturrecht und StaatswiyssenschaftimGrundriysse, Berlin, 1821, ed. with care of Eva Moldenhauer and Karl Markus Michel, 6th ed.
5]Jakobs, Günther, “La omisión: estado de la cuestión”, trans. Javier Sánchez-Vera, in Roxin, Claus (et al.), Sobre el estado de la teoría del delito (Seminario en la Universitat Pompeu Fabra), Madrid 2000, p. 140.
6] Cf. Jakobs, Action and omission, cit.