Accident, fault in the strict sense or eventual willful misconduct?

Accident, fault in the strict sense or eventual willful misconduct?
Accident, fault in the strict sense or eventual willful misconduct?

The best-known thought about eventual intent appears in the so-called hypothetical theory of consent, developed by Hans Frank, according to which this subjective element will be present when the author of the fact, although he foresees the occurrence of the injury as certain (or highly probable) – that does not seek -, even so, it does not stop acting, because the legal good protected by the penal norm appears to it of lesser value (or of no value), when compared to the end it intends to achieve. Differently from what happens with those who act with conscious guilt, the result – which is predictable for the agent in both cases – is accepted as a possibility for those who operate with eventual willful misconduct and are not able to inhibit their risky activity (those who act with conscious guilt, on the contrary, does not agree with the damage, which, if it proves to be right, will determine that he does not perform the risky behavior).

In view of this, what conclusion can we reach when we have news that, in the city of Osório/RS, on 09/16, a Military Brigade vehicle, in pursuit of suspects of criminal practices, at high speed, invaded an urban road located in the central region, ran over – as it was even likely to happen – and injured a motorcyclist, to the point that she had a leg amputated?

Before answering the question raised above, it should be clarified that even those who act with possible intent may eventually be under the excluding cause of unlawfulness or culpability. This is what would happen, for example, if there was a kidnapping victim inside the vehicle being pursued or if the police had received false information that such an event was taking place.

As far as is known, this has not been the case.

I still ask: and if the garrison, despite acting in the inconsequential way as it did, had achieved the result it had set out to achieve and managed to reach and arrest the fugitives (without running over anyone), what would have been the command’s reaction to knowing that such a fact had occurred after the Brigadiers had placed the population at risk of death or serious injuries due to their unreasonable action? Would the commanded have been at least pedagogically warned that the ends do not justify the means, or would they have been praised, seen as “doers of duty” and encouraged to continue doing so?

This is not an exercise that is difficult to carry out: it is enough to listen to soldiers involved in previous investigations and to collect the material produced by the press in such cases. In this regard, check out the way in which the media reported the issue, inducing to be the victim who “gets involved in an accident with a police car”, and disregarding that: (1) it was not the motorcyclist who gave rise to the alleged ” accident”, so she didn’t “get involved”, but was involved in an otherwise unfortunate situation, sponsored by public agents who were supposed to protect her, and which cost her a leg; (2) there was no fortuitous event or force majeure, so it was not an “accident”, as the journalistic article wants, but the commission of a crime of very serious bodily harm, clearly caused with eventual intent.

I don’t think it is an attempted murder just because the attempted crime presupposes that there was a desire to achieve the harmful result, which is not achieved by “circumstances beyond the control of the agent” (Art. 14, II, of the CP), a situation that is not consistent with the presence of eventual intent (for the reasons set out in the first paragraph of this writing), which allows the conclusion that the authors must answer for the injuries that they actually caused criminally.

Finally, I suspect that the answers to the questions proposed above may still be influenced by article 29 of the CP: “Whoever, in any way, concurs in the crime will be subject to the penalties imposed on him, according to his guilt”.

The article is in Portuguese

Tags: Accident fault strict sense eventual willful misconduct

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