The state of necessity as an exemption from criminal responsibility


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He state of necessity it consists of a fact that protects any individual who carries out a bad act or who transgresses the judicial norms.

The law understands that the necessity pardons the person who carries out an act of sanction of criminal responsibility or decreases it.

What is the state of necessity?

The definition of a state of necessity is a matter of discussion among legal practitioners in court. Far beyond the dissimilarities, a series of usual assumptions are admitted in most opinions.

In the first instance, the Differentiation Theory is used. This makes it possible to determine an admitted state of necessity that is palliative of criminal responsibility.

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The Penal Code considers it expressly. The conduct is defined as judicially correct and acquitted of guilt. In this case, there is no question.

The state of necessity as an exemption from criminal responsibility
The state of necessity as an exemption from criminal responsibility

Most opinions agree that the state of necessity is sustained when the individual who threatens the judicial good is under high personal pressure.

It is about the use of the example that the prosecutors define as "Theory of the Table of Carnéades". Two castaways are supported by the same board, which can only support one. In this case, one of the castaways ends the life of the other in order to survive.

The Penal Code and the state of necessity

The state of necessity is found in the Penal Code, specifically in Chapter II, which is entitled: "Of the causes that exempt from criminal responsibility."

Article 20.5 defines that they are released from criminal responsibility:

That person who, in a state of necessity, to mitigate his own harm or that of someone else, attempts against a judicial asset of another individual or violates an obligation. This, as long as the following conditions occur:

1. That the damage caused is not more serious than the one that has been tried to be avoided.

2. That the state of necessity is not caused on purpose by the individual.

3. That the person in need does not have, due to his position or job, the responsibility of sacrificing himself.

This same article describes in detail each of the conditions that must be met for the state of necessity to be possible. According to the context in which the action is executed by the offender, the state of necessity may be defined.

What are each of the conditions?

That the damage caused is less than what is intended to be avoided

To analyze this aspect, the Court interprets and assesses everything that happened. Particular attention will be paid to the proportion existing between the offender's interests and the assets that have been affected.

Consequently, with this link between the harm avoided and the harm caused, the level of exemption from the situation of necessity is established.

· If the damage caused is less than what is avoided, the individual is totally absolved of any criminal responsibility.

· If the harm caused is slightly greater than what is intended to be avoided, the privilege will be incomplete.

· Finally, in the scenario that the damage caused is greater than that avoided, a criminal sanction will be applied.

That the need is not caused by the offender on purpose

He need context must be true. In other words, there must be no intention to cause the problem that leads to the behavior that goes against the rules in order to solve it.

That the individual does not have, due to his position, a duty to sacrifice himself

This third condition It is related to the position or trade in which the individual performs.

The Civil Code defines that the individual who causes the damage due to necessity, must not have a job or position that represents the duty to sacrifice himself.

This condition is based on the fact that there are positions that imply voluntary responsibility of running some risks.

It is the case of professionals like policemen, rescuers, firefighters, among others. In this type of situation, it is very difficult to define a state of necessity when the individual who causes the harm protects himself from a risk inherent to his job.

What happens if these conditions are not met?

When the three conditions mentioned in advance exist, the acquittal of criminal responsibility can be established. In the event that these requirements do not occur, the state of necessity will be determined as a mitigating case.

It is in the presence of an incomplete defense case, in accordance with what is defined in article 21 of the Penal Code.

They are extenuating situations:

1st The reasons stated in the previous section, when all the conditions to absolve from responsibility in their specific cases do not meet.

Consequently, at Article 68 of the Penal Code mentions that:

In the scenarios known in the first condition of article 21, the courts or judges assign the minor sentence by one or two degrees to that established by law.

How do you get to the state of necessity?

In order for it to be possible to argue the state of necessity in the event of an infringement, in addition to the conditions set forth above, the Court will consider others. One of these is the urgency of the real and serious damage that said infraction prevented.

Is financial need considered an exemption from criminal liability?

Particularly in contexts of crisis, situations in which the condition of financial need arises as a defense to criminal liability tends to reach the courts.

The jurisprudence is quite careful when assenting the state of economic necessity.

In particular, it is not usually accepted as an excuse in situations of drug trafficking, since, in this case, the property affected (public health), far outweighs any monetary inconvenience the offending individual may have.

Economic need has been accepted with mitigation or exemption in the scenarios of parents who have committed a robbery because they need money for urgent surgery to save the life of their child or any other family member.

In all contexts, conditions of real distress and extreme economic position must always be met.

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