Quarrel mutually accepted by Rafael Juan Juan Sanjosé
When what actually happened is a fight mutually accepted, we consider both contenders in isolation, in order to qualify the facts, as aggressors and attacked, since both, knowingly and voluntarily decided to be participants in the brawl.
Tengo el privilegio de publicar el trabajo del brillante jurista Rafal Juan Juan Sanjosé, Alternate Judge of the Provincial Court of Castellón.
This work is deeper than the entries that usually public, but sure to be of interest especially for legal professionals.
Here are the work of Juan Juan Rafael San Jose
TIFF mutually accepted
His relationship with justifications and domestic violence
Rafael Juan Juan Sanjosé
Alternate Judge of the Provincial Court of Castellón
3.- Quarrel mutually accepted and legitimate defense.-
4.- Quarrel and mutually accepted outburst.-
5.- Mutually accepted quarrel and domestic violence.-
On many occasions we face, in practice, factual situations in which there have been mutual aggression between different people, these being both active subjects of aggression, as taxpayers, He is having received the onslaught of the other party.
In these cases we analyze if what we face is an assault, and its subsequent response by the aggressed, or what has actually happened is a fight mutually accepted.
In this paper we make an analysis of the consequences that such situations can lead, focusing on assumptions mutually accepted quarrel and its relationship with some of the circumstances of justification most commonly exposed by the defenses, to finish analyzing its relationship in the context of domestic violence and gender.
In order to realize the object of this work, first, we will try to provide clarity to a concept such as the fight mutually accepted, that while it seems clear, is one of the main escoyos that we will qualify when the facts before us, as well as the implementation of the various justifications that could compete on the same.
So things, the Supreme Court, in sentence 21 November 2007 (1), defines mutually acceptable quarrel, or brawl, as a conflict arose between some people who, embroiling in any verbal discussion, to gain the same degree, flow, after the insolent words, outrageous or offensive in dangerous ways of doing things, expressly or tacitly accepting the challenge from or leading to double and reciprocal attack force.
In the same way, High Court, in sentence 8 July 1998 (2), It clarifies that in the scuffle that agree to maintain faced contenders seems to underlie a tacit agreement to settle differences through interpersonal forms of physical violence which have been, and even constitute, by way of traditions undertaken by individuals, socially recognized means of resolving personal oppositions, not often arising from trifling reasons. The existence of this kind of agreement excludes the possibility that the aggression of one party by the other responds forcefully and without access to support the fight, only with self-defensive purpose.
In consequence of the above we could say that the main elements that characterize the fight would be mutually accepted:
a) The physical confrontation between two or more people.
b) The existence of an express "agreement" tacit or mutual aggression
These elements, and especially the second, They will be of vital importance for us to qualify as an interpersonal confrontation quarrel mutually accepted, with the consequences that then we will study.
Ultimately, if the confrontation does not occur in a context of "agreement" between opponents, we could not only qualify the events as an attack by one of the participants and a defensive act of another, which would lead to totally different qualifications (depending on the outcome of harm) to any that would occur in the case of the existence of a tacit acceptance of the confrontation.
3.- Quarrel mutually accepted and legitimate defense.-
In forensic practice, and in the context of brawls, Many times we find defenses based on the existence of self-defense, complete or incomplete, by one of the contenders, a matter which requires the judge to two levels of analysis, namely, to study if it really occurs parallel self-defense and if there is an attack and response, or a mutual attack tacitly or expressly accepted by the contestants.
As for self-defense, the Supreme Court, repeatedly, has determined the elements that shape, and so, inter, in Case 27 May 2015 (3), states that:
The requirements of legitimate defense can be summarized in the following three (art. 20.4 CP):
1) Legitimate aggression. Their existence may be actual or imminent. By unlawful violence it can be understood the creation of an imminent risk to protected rights, legally defensible. The creation of this risk is associated generally to “a physical act of force or offensive materials acometimiento”, unlawful violence but also exist in the same cases in which it is perceived “an attitude of impending attack or make it immediately obvious aggressive purpose”, such as the menacing attitudes and circumstances of the act are such as to enable a real danger fear of assault, de tal suerte que la agresión ilegítima no siempre y necesariamente se identifica con un acto físico, but can also come from danger, risk or threat, provided they are imminent.
2) Need rational means employed to prevent or repel aggression in the double sense of need for defense and necessity of the means employed, but not simply as an objective judgment of proportionality between the class or type of medium used in the attack and used by the defender, but considering all the circumstances, both in relation to aggression as to the situation that defends and how does, all under the prospects that could be seen as an effective response. Note that it is sometimes not possible excogitación or defensive means choosing.
3) Lack of sufficient provocation on the part of the defending, namely, they have not been words, actions or gestures, tending to excite, incite or provoke the other person.
So things, what must be done to determine whether the application of self-defense in case of possible mutually acceptable brawl, will, first, determine whether the above requirements can attend when the mutual aggressions of contenders in a context of "consensus" or tacit agreement.
To this end the High Court has developed a doctrine whose essentials can see them exposed in Case 30 December 2014 (4), where it is not possible to determine a finding of unlawful violence in cases of quarrel mutually acceptable because at that stage of mutually consensual fight, the contenders are located outside the criminal protection actors to be provocative each confrontation, so that when the damaging effect occurs as a result of a quarrel caused by a challenge launched or accepted resulting in pathways made, there can be no appeal to self-defense, full o semiplena, because, as is said- the base thereof is the existence of illegitimate aggression, and it is not possible to admit such a character in a fight voluntarily accepted.
Similarly, the Supreme Court, in sentence 31 October 2013 (5), refers to the doctrine and adds that in situations of mutual assault and reciprocal aggression the existence of the justification of self-defense is removed in its two facets of complete or incomplete, in the absence of the requirement “sine qua non”, basic and fundamental and priority assessment, the unlawful violence repeatedly with current characters, imminent, unforeseen and sufficient and efficient entity for the endangerment of the person or rights of the victim, the reciprocal erected contenders aggressors and becoming the harmful results suffered by any of them assumed episodic incidents contest, disconnected from the situation of absolute or relative necessity implies that the defense, priority being indifferent aggression.
Notwithstanding this, also clarifies the jurisprudence (6), that should not be omitted observation by the judge of all the events to define when an initial assault happens to become quarrel with mutual acquiescence of those involved in it, and a, On the contrary, in the case of the initial fight an aggravated form of media used conflict occurs using a contender for the use of weapons or means of damage more serious and dangerous than the hitherto used by both sides that could constitute a real aggression it becomes separated from the initial scuffle.
As the High Court said in the judgment of 30 March 2007 (7) Admittedly, this situation can be put on record fight opponents on an overreaction to one. Now, the precedent of an argument does not eliminate, absolutely, situations that could be estimated that an attack was not expected that went beyond a fight. An answer, not only disproportionate, but absolutely unexpected and unjustifiable, from the point of view of the situations of normal life, You can not prevent the existence of cases in which self-defense is admissible.
In summary, and as stated the judgment of the Supreme Court 21 November 2007 (8), to quote many other resolutions, in principle, on mutually accepted quarrel appreciate the possibility of self-defense is excluded (SSTS. 29.1.2001, and 214/2001 of 16.2 ), the priority being indifferent aggression (SSTS. 31.10.88, and 14.9.91 ), although it has stated that it does not relieve the judges to find out "the genesis of aggression and determine, if it's posible, the person or persons started, so as thereby to avoid that may appear as a component of quarrel, who it was nothing more than a merely beaten to repel aggression " (SSTS. nº 1265/93 of 22.5, 312/2001 of 1.3, 399/2003 of 13.3).
And this assumption that self-defense is admitted, the case where the action of one beyond the limits of the express or tacit acceptance is added, regarding modes or means “making an unmannerly attacks presence or dangerous weapons, with which he was not available” (STS. 1253/2003 of 13.3), producing a qualitative change in the situation of the contenders (SSTS. 521/95 of 5.4, 20.9.91).
It is noteworthy in this context Case 2 October 2005 (9) High Court, in which self-defense is analyzed in a fight mutually accepted, when the means used by the contestants are not in principle they were the "concerted" and thus one of the conditions for the participation of the justification of self-defense is the rational necessity of the means employed to prevent or repel unlawful aggression.
What the Supreme Court interprets doctrine is that it is not enough the need “abstract” defense but also his “Concrete” need, deducted from the means used and understood as not only the instruments used but the mode of defense.
So, says the judgment of 22/07/2005 , recalling other previous, that “but the similarity material or weapons used instruments must be weighed the actual situation in which they find the aggressor and victim, in which you can play the mood of the victim and the disturbance in its reasoning on the adequacy of the defensive means used to cause the risk to which it is subjected to aggression. Therefore, to judge the rational necessity of the means employed in the defense, It should not only take into account the nature of the medium, per se, but also the use that is made of it and the existence of other less costly alternatives defense depending on the specific circumstances of fact. It is therefore a judgment derived from a perspective “ex ante”.
With that consideration of the rationality of the means employed it is to have another perspective connection defense: the acceptance of the fight; because such consent is analyzed to conclude the absence of aggression or lack of defensive mood, one can say that, if during the initial battle and freely accepted reached a significant unilateral change in the media or modes occur, They disappeared reservations to the appreciation of the defense in the new situation who suffer, accepting the fight would have been exceeded.
Under the above we can conclude that although prima facie defense based on the occurrence of acts of self-defense in mutually accepted quarrel would not be admissible, we can not rule root, since it will have to specifically analyze the initiation and development of this fight in case the assumption that all started with an illegitimate attack one of the contestants were given, or if the dispute process than initially began as a quarrel tacitly or explicitly accepted, given the performance of one of the contenders the "agreement" was exceeded and became illegitimate one attacker and the other in taxable person who merely defend.
4.- Quarrel and mutually accepted outburst.-
Another cause of recurring justification that are presented as defensive argument in situations fights mutually accepted is the concurrence of mitigating outburst (art. 21.3 CP), whereupon we need to make a study of it and so, outburst, in the words of the High Court (10), lies in a sensitive alteration of the subject's personality type whose temperamental reaction to external stimuli affects their intelligence and will, mermándolas in relationship of cause and effect and reasonable temporary connection, appearing as a response that can be understood within understandable parameters in a normal environment of coexistence.
Supreme Court clarifies that it is not valid any kind of stimulus to cause an attenuation of criminal responsibility, and it has been excluded outburst in cases of simple angry reactions.
The case law has referred to various requirements:
1) First, It must be found to exist stimuli or causes, usually from the victim (STS núm. 256/2002, of 13 February), that qualify as powerful, and that they understand enough to explain to some extent the subject's reaction, thus they excluded the trivial stimuli to which any average person would react normally. It is in this sense that must be understood concerning the requirement that there must be proportionality between stimulus and disturbance of consciousness and the will that accompanies the action. If the reaction is absolutely notorious excess discordant by the fact motivator, attenuation can not be applied (sentence 27 February 1992), it is not possible to grant atenuatorios effects to any passionate or angry reaction if not proven the importance of emotional disturbance provocative stimulus that the rapture is and who is to be waning influence on the will and intelligence of the author (STS núm. 1483/2000, of 6 October).
2) Secondly must be accredited obfuscation of consciousness, or sudden or sudden emotional state, or other such passionate state, accompanying the action.
3) Thirdly, there must be a causal link between one and the other, so that the behavior is a consequence of the importance of the stimulus.
4) Fourthly, there must be some temporary connection, since the outburst can not be assessed if time has mediated between stimulus and reaction to estimate prudently who has recovered the coolness of mind.
5) And fifth, the response to the stimulus is not reprehensible from the perspective of an impartial observer within the normal framework of coexistence (STS núm. 1301/2000, of 17 July).
So things, and similarly in self-defense, previously analyzed, within mutually accepted a fight it can hardly be the rapture, since the consensus among the contenders is assumed as fact "rational", it does not eliminate all possibility that it can be applied in very specific cases where the nature of the quarrel and affected the course of events do see, plainly, a qualitative change in the situation of opponents or the facts.
5.- Mutually accepted quarrel and domestic violence.-
Article 153 CP establece que “1. Who by any means or process causes another mental impairment or injury less serious than those provided for in paragraph 2 Item 147, or beat you or mistreats another person without causing injury, when the victim is or has been wife, or woman who is or has been linked to him by a similar emotional relationship even without cohabitation, or particularly vulnerable person living with the author, shall be punished with imprisonment of six months to a year or work in the community benefits thirty-one to eighty days, in any case, deprivation of the right to possess and carry weapons from a year and a day to three years, as well as, when the judge or court deems appropriate to the interests of children or disabled person in need of special protection, disqualification of parental rights, protection, curatorship, foster care or up to five years.
2. If the victim of the offense under the preceding paragraph any person regardless of that article refers to 173.2, except for those persons referred to in the preceding paragraph of this article, the offender shall be punished with imprisonment of three months to one year or work for the benefit of the community thirty-one to eighty days, in any case, deprivation of the right to possess and carry weapons from a year and a day to three years, as well as, when the Judge or Court deems appropriate to the interests of the minor or disabled person in need of special protection, disqualification of parental rights, protection, curatorship, foster care or six months to three years. "
If we just coolly read the article, without making a systematic interpretation of it, we could conclude, even in cases of quarrels mutually accepted, in which one of the contestants is the husband and the other woman, This article would apply to acts performed by the first.
Notwithstanding this, We share the criterion, inter, by the Audiencia Provincial de Castellón (11), whereby not appropriate to apply Article. 153 the C.P. in cases of quarrel mutually accepted , they are both members of the couple (or family relationship) who display violence during dissensions and quarrels among equals, and completely disconnected from abusive situations, submission or subjugation on the basis of gender, or more generally the weakest by the strongest characteristics of the domestic violence and gender.
And as we understand it, in the same way as a large part of the lower case (12), that the facts would fall within Article 153 CP, these have to respond to a situation of domination or subjugation by the perpetrator on the taxpayer, or arising in such a context of domination of the active subject on the weakest member of the family relationship. From this overall approach, there are many decisions that keep the inapplicability of Article 153 CP in cases of quarrel mutually accepted, where it is considered that, by the very logic of things, lack the budget of domination or subjugation of one family over the other.
According to the Court of Castellon (13), we share, a logical interpretation, teleological, systematic, historical and sociological Article 153 CP leads to a restrictive interpretation and application of that provision, to integrate their literal content based on the concepts of "domestic violence" and "gender violence", in that defining concepts or contexts of the areas in which it makes sense and is justified penological indicated aggravation Article entails.
You can not do without such concepts, cornerstone of all legislation on the subject, to interpret and integrate the crime of ill-treatment contained in Article 153 CP. Thus, in our opinion it must be necessary for the conduct described in the offense constitutes a concrete manifestation of these two phenomena known as “domestic violence” and “gender violence”.
The concept of “domestic violence” It is not expressly defined by the legislature of the way today (after L.O. 1/ 04) It is defined and configured concept “gender violence”. But not excessively problematic well infer its meaning, and asserting that situations of domestic violence are produced as a manifestation of an abusive situation, domination or subjugation of a family member on another family (or also, by express assimilation or legal inclusion, in the context of the situation in which they find people for their special vulnerability are under custody or care in public or private schools).
With regard to the concept of “gender violence”, in the preamble to the L.O. 1/ 04 begins by stating that “Gender violence is not a problem that affects the private sphere. On the contrary, it manifests itself as the most brutal symbol of inequality in our society. It is a violence that is directed against women because of it be, to be considered, by their abusers, lacking the basic rights of freedom, respect and decision making.”.
From the foregoing, continues the judgment of the Audiencia Provincial de Castellón, se deduce, you can not do without the concepts of gender violence and domestic violence, cornerstones, motivating and inspiring of all legislation on the subject, to interpret and integrate the criminal family about bad treatment contained in Article 153.1 and 2 CP. Necessary, therefore, that, in the case of women who, as taxpayers crime, It referred to in that article, the conduct described in the offense is a manifestation “discrimination, the situation of inequality and power relations of men over women”, which characterizes itself or gender violence.
O sea, or gender violence appears by the mere fact that the victim is a woman abuse; nor Article is automatically applicable 153.1 CP, always and in any case, when the victim is a woman abuse. The application of that provision requires a plus, an additional element, which is that violent or abusive behavior can be classified as a manifestation of discrimination, the situation of inequality and power relations of men over women (14).
Thus, we understand that the reference to the legislator indicates that the crime victim Article 153 It is designed for those cases in which the typical actions deployed by the offender against any liabilities related subjects in one, namely, for cases where there is an aggressor and aggressed, but not for those hypotheses in a fight situation occurs mutually accepted, where the participants are the aggressors and attacked again, because in such cases would become meaningless simultaneous application to both the range of protective measures referred to by the legislature in the preamble of the LO. 11/2003.
In the same sense, the Supreme Court decides in Case 8 June 2009 (15), and so requires, so that they can apply Article 153.1 CP, the fact “it occurs in the context of so-called own behaviors “macho””, or “male superiority”, constitute gender violence”.
In conclusion, to determine whether or not applicable Article 153.1 CP must take into account the context in which the abuse occurs and consequently, if it concludes that it has been in the context of a mutually consensual fight in which nothing has to do the macho behavior, It does not apply precept studied.
According to the discussion in the preceding sections, when what actually happened is a fight mutually accepted, what occurs is a disconnection between the attacks penological contenders, namely, we consider both, and in isolation, in order to qualify the facts, as aggressors and attacked, since both, knowingly and voluntarily decided to be participants in the brawl.
This makes it impossible circumstances justified as self-defense or the defense may serve outburst or attenuation of the criminal activity of the assets subject, and that for this to be given would require the attacked had not "concerted" with the aggressor, and vice versa, a kind of pact to settle their disputes through the use of violence.
So things and in relation to the application of provisions such as Article 153 CP, the mere fact of being two equal subjects who come to aggression as a means to resolve conflicts, no one can see a glimmer of a situation of sexist domination dyes each other, makes it can not come into play the protection of victims when they really are not, as a mutually acceptable contenders fight become active subjects, ie aggressors, which in turn they can be abused for the sake of prior agreement, either tacit or express, set including.
Juan Juan Rafael Sanjose
Alternate Judge of the Provincial Court of Castellón.
(1) STS, Penal sección 1 the 21 November 2007 ( ROJ: STS 7798/2007 – ECLI:ES:TS:2007:7798); Sentence: 932/2007 | Resource: 11107/2006 | Speaker: BERDUGO Juan Ramon Gomez de la Torre - Legal Grounds second.
(2) STS, Penal sección 1 the 08 July 1998 ( ROJ: STS 4600/1998 – ECLI:ES:TS:1998:4600); Sentence: 923/1998 | Resource: 43/1998 | Speaker: JOAQUIN MARTIN CANIVELL - Basis second law.
(3) STS, Penal sección 1 the 27 May 2015 ( ROJ: STS 2596/2015 – ECLI:ES:TS:2015:2596); Sentence: 325/2015 | Resource: 2416/2014 | Speaker: JOSE RAMÓN SORIANO SORIANO – Fundamento de Derecho cuarto.
(4) STS, Penal sección 1 the 30 December 2014 (ROJ: STS 5526/2014 – ECLI:ES:TS:2014:5526); Sentence: 885/2014 | Resource: 854/2014 | Speaker: MIGUEL COLMENERO Menéndez de Luarca - Legal Grounds first.
(5) STS, Penal sección 1 the 31 October 2013 (ROJ: STS 5438/2013 – ECLI:ES:TS:2013:5438); Sentence: 834/2013 | Resource: 208/2013 | Speaker: CARLOS PEREZ GRANADOS - Basis second law.
(6) Ver, inter, STS, Penal sección 1 the 08 July 1998 ( ROJ: STS 4600/1998 – ECLI:ES:TS:1998:4600); Sentence: 923/1998 | Resource: 43/1998 | Speaker: JOAQUIN MARTIN CANIVELL- FD 2º y STS, Penal sección 1 the 30 March 2007 ( ROJ: STS 2508/2007 – ECLI:ES:TS:2007:2508); Sentence: 294/2007 | Resource: 1707/2006 | Speaker: JOSE ANTONIO MARTIN PALLIN – FD 1º
(7) STS, Penal sección 1 the 30 March 2007 (ROJ: STS 2508/2007 – ECLI:ES:TS:2007:2508); Sentence: 294/2007 | Resource: 1707/2006 | Speaker: JOSE ANTONIO MARTIN PALLIN - Legal Grounds first.
(8) STS, Penal sección 1 the 21 November 2007 (ROJ: STS 7798/2007 – ECLI:ES:TS:2007:7798); Sentence: 932/2007 | Resource: 11107/2006 | Speaker: BERDUGO Juan Ramon Gomez de la Torre - Legal Grounds second.
(9) STS, Penal sección 1 the 02 October 2005 ( ROJ: STS 5811/2005 – ECLI:ES:TS:2005:5811); Sentence: 1213/2005 | Resource: 2054/2004 | Speaker: SIRO FRANCISCO GARCIA PEREZ - Basis second law.
(10) Ver, inter SSTS No. 1147/2005 and No 885/2014.
(11) See SAP Castellon, Penal sección 2 the 19 May 2015 (ROJ: SAP CS 520/2015 – ECLI:ES:APCS:2015:520); Sentence: 138/2015 | Resource: 577/2014 | Speaker: ALTARES PEDRO JAVIER MEDINA - Basis second law, and SAP, Penal sección 2 the 09 April 2015 ( ROJ: SAP CS 327/2015 – ECLI:ES:APCS:2015:327); Sentence: 118/2015 | Resource: 130/2015 | Speaker: ANTON JOSE LUIS BLANCO - Legal Grounds second.
(12) Ver, inter, the number sentences 291/07, of 21-3, sez. 20ª de la A.P. Barcelona; the 251/07, of 9-3, de la sec. 20ª de la A.P. Barcelona; the 144/06, de 23-nov., de la sec. 4ª de la A.P. Pontevedra; the 271/06, de 8-nov., de la sec. 3ª de la A.P. Cadiz; the 428/06, of 3-4, de la sec. 7ª de la A.P. Barcelona; the 200/06, of 29-9, de la sec. 6ª de la A.P. Barcelona; the 193/06, of 13-3, de la sec. 20ª de Barcelona; the 60/06, of 30-1, de la sec. 2ª de la A.P. Tarragona; the 87/06, de 11-oct., de la sec. 2ª de la A.P. Ciudad Real; the 415/05, 9 Dec., de la sec. 2ª de la A.P. Castellon; the 1110/05, de 27-oct., de la sec. 8ª de la A.P. Barcelona; the 1044/05, de 20-oct., de la sec. 2ª de la A.P. Barcelona; the 901/04, of 1-9, de la sec. 3ª de la A.P. Barcelona; the 535/05, de 4-oct., de la sec. 2ª de la A.P. Valencia; No. 515/05, 9-6, de la sec. 5ª de la A.P. Barcelona; No. 535/05, of 17-5 de la sec. 2ª de la A.P. Barcelona; the 121/05, of 18-3, de la sec. 7ª de A.P. Seville; No. 38/05, of 17-3, de la sec. 3ª de la A.P. Navarre; the 1222/04, 14-Dec., de la sec. 2ª de la A.P. Barcelona (by appointment numbers 123, 260 and 1308/04 the same court); No. 1054/04, de 15-nov., de la sec. 6ª de la A.P. Barcelona.
(13) SAP Castellón, Penal sección 2 the 19 May 2015 (ROJ: SAP CS 520/2015 – ECLI:ES:APCS:2015:520); Sentence: 138/2015 | Resource: 577/2014 | Speaker: ALTARES PEDRO JAVIER MEDINA - Basis second law.
(14) The same would apply to Article 153.2 CP, in the context of domestic violence.
(15) STS, Penal sección 1 the 08 June 2009 (ROJ: STS 4793/2009 – ECLI:ES:TS:2009:4793); Sentence: 654/2009 | Resource: 11003/2008 | Speaker: LUIS LUIS ROMAN DOOR - Legal Grounds - Basis second law.