Brief theoretical and practical considerations concerning crimes against life. Possibility of coexistence of manslaughter and homicide with regard to the same victim
| Author | Constantin Ioan Gliga |
| Position | Senior Lecturer, Ph.D. - Faculty of Law, Transilvania University of Brasov |
| Pages | 138-145 |
138 CONSTANTIN IOAN GLIGA
CRIMINAL LAW
BRIEF THEORETICAL AND PRACTICAL CONSIDERATIONS
CONCERNING CRIMES AGAINST LIFE.
POSSIBILITY OF COEXISTENCE OF MANSLAUGHTER
AND HOMICIDE WITH REGARD TO THE SAME VICTIM*
Constantin Ioan GLIGA **
Abstract: This article intends to carry out an analysis of the practice of Prosecutor's Offices to order the
prosecution regarding certain defendants for having committed manslaughter, in the context in which
investigations were carried out in terms of homicide committed by another person, with regard to the same
victim. Thus, assuming that the crime perpetrator cannot be held criminally liable or is not identified, the
criminal investigation bodies have ordered the prosecution for manslaughter by persons who, by failing to meet
some legal or contractual obligations, facilitated the occurrence of death.
Key words: Public Law, Criminal Law, Manslaughter, Crimes against Life
Introduction
Lately, in criminal cases which deal with the investigation of facts which
resulted in the death of people, we note an increasing trend of the prosecuting
authorities to proceed to trigger the criminal prosecution under the accusation of
manslaughter against persons other than the immediate author of the act, in
situations where the identification of the manslaughter perpetrator did not succeed
or the latter is not criminally liable.
Thus, although the data existing in the case file show with obvious evidence
that the victim's death was caused by the willful misconduct of a person who, for
various reasons, cannot be prosecuted, the prosecution authorities choose to
investigate other persons, for which there is no reason to prevent the further
prosecution or the initiation of criminal proceedings for the crime of manslaughter.
This article aims to analyze, from a theoretical and case-law point of view, to
what extent the two crimes - murder or involuntary manslaughter - can coexist in
the presence of the same victim.
Law Review special issue, Decembre 2019, pp. 138-145
Brief theoretical and practical considerations cencerning crimes against life 139
Thus, we shall briefly present the main theories developed in the specialized
literature with regard to the causal connection as part of the objective side of the
crime.
We shall also present two cases of judicial practice, where the Public Ministry
ordered the prosecution of defendants for committing the crime of manslaughter,
although it was known that the victim's death was due to the intentional action of a
third party who was either not identified (in the first case) or did not meet the
requirements of the law to be criminally responsible (in the second case).
1. Brief theoretical Considerations on Causation
In the doctrine, causation was defined as a variable concept consisting of the
cause and effect relationship, which must exist between the action or inaction as
provided in the incrimination norm, which constitutes the material of the offense
and the immediate consequence thereof1. Thus, it was argued that it is necessary to
determine, on a case by case basis, whether a particular act or omission committed
by a certain person may be retained as a cause of generated result2.
Published literature revealed the existence of two current trends with reference
to the theories developed on causation: one current supports the monistic thesis,
while the other supports the pluralist thesis3.
According to the theories advocating the monistic thesis, the immediate
consequence has only one cause, so that, in the event of the existence of a plurality
of human contributions, these are considered to be simple conditions without
criminal significance4.
In general, monistic theories are accused of narrowing the causal antecedence
to only one human contribution5.
On the other hand, according to the theories that support the pluralistic thesis,
the production of the result may be due to a concurrence of causes6. The most
* The article was prepared for the International Law Conference, "Current Issues within EU and
EU Member States: Converging and Diverging Legal Trends", 3rd edition, organized by the Faculty of
Law – Transilvania University of Braşov on the 29th-30th of November 2019.
** Senior Lecturer, Ph.D. – Faculty of Law, Transilvania University of Brasov
(gliga.ioan@gmail.com).
1 M. Udroiu Drept penal: partea general (Criminal Law: General Part), 5th Edition, Bucharest: C.H.
Beck, 2018, page 107
2 Ibid; For an exhaustive discussion of the main theories regarding the causation relationship, see
M. Hotca, Curs de drept penal. Partea general (Course on Criminal Law. General Part). Bucharest: Editura
Universul Juridic (Universul Juridic Publishing House), 2017, pages 181-183.
3 C. Mitrache, C. Mitrache, Drept penal român: partea general: conform Noului Cod penal: curs
universitar (Romanian Criminal Law: general part: according to the New Criminal Code: University Course),
Bucharest: Universul Juridic Publishing House, 2014, page 163.
4 Ibid.
5 Ibid.
6 Idem, page 164.
140 CONSTANTIN IOAN GLIGA
important of these are the theory of equivalence conditions and the theory of
necessary conditions.
The theory of equivalence conditions, also known as the causa sine qua non
theory, was formulated in 1860 by the German author Von Buri7. According to this
theory, the causes of the produced result are all the conditions that preceded it and
without which the result would not have occurred. In other words, it is considered
that any condition which preceded and is related to the outcome, is equivalent to
the cause8.
In the doctrine, this theory was criticized for placing on the same level all
conditions, without emphasizing the differences between their contribution to the
production of the outcome and without distinguishing between the different
conditions in terms of their role in the production of the outcome9.
According to the theory of the necessary condition, any condition necessary for
the production of the outcome is considered as its cause, taking into account the
actual contribution of each condition10. The doctrine appreciated that this theory
offers most of the possibilities to solve the issue of causation as it correctly
established the sphere of contributions with a causal link11.
However, the published literature expressed the view that this theory would
not bring any new element as regards the issue of causation in the context where
post factum all conditions appear necessary after the outcome has occurred12.
All these theories have both advantages and disadvantages, so the judicial
doctrine and practice have reached an agreement on the line of thinking which
would be preferable to follow in terms of establishing the existence or
non-existence of the causal link between the actions or inactions of a person and
the result produced in a given case.
Judicial practice showed that most of the problems arising from the need to
establish the causation occurred primarily in relation to crimes against offenses
against life and limb13. Thus, there existed situations where it was difficult to
determine the causal link due to the fact that many people had contributed to the
exercise of violence, due to the victim’s own contribution to the worsening of their
own state of health, the latter medical fault, when providing medical treatment and
attention to the victom, as well as due to the subsequent contribution of a third
party to the worsening of the victim’s health condition14.
7 Ibid.
8 Ibid.
9 Ibid.
10 G. Antoniu, Raportul de cauzalitate în dreptul penal (Causation Relationship in Criminal Law),
Bucharest, Editura Ştiinific, 1968, pages 138, 157.
11 C. Bulai, B.N. Bulai, Manual de drept penal, Partea general (Manual of Criminal Law, General Part)
Bucharest: Universul Juridic Publishing House, 2007, page 182.
12 C. Mitrache, C. Mitrache, op cit., page 164.
13 M. Udroiu, op cit., page 108.
14 Ibid, page 109.
Brief theoretical and practical considerations cencerning crimes against life 141
2. Legal Proceedings against the CEO of a Company, under the Accusation
of Manslaughter, as he failed to take the necessary Measures for the Safety and
Health of two of his Employees who were the Victims of an armed Attack by a
third Party
In 2009, on the territory of the municipality of Brasov an armed robbery took
place on a motor vehicle for the transportation of money, belonging to a company
that conducted foreign currency exchange activities. Following this attack, one
person died and another was seriously injured, both were employees of the
aforementioned company. So far, the attacker has not been identified, nor held
criminally liable.
The indictment of the Prosecutor's Office attached to the Brasov District Court
(Judecatoria Brasov), ordered, among other things, the prosecution of the said C.V.,
executive manager of SC. E.C. SRL, in relation with the perpetration of the crimes
provided by art. 37 paragraph 1, 2 and 3 of the Law no. 319/200615, manslaughter,
provided by art. 178 of the Criminal Code paragraph 1, 216 (the victim I.C.), and
involuntary bodily injuries, provided and punished by paragraphs 2, 4 of art. 184
of the Criminal Code (the injured party G.R.P.), consisting in the fact that as the
employer of the victim I.C. and of the injured party G.R.P., out of negligence, failed
to provide for all legal measures for the safety and health at work, as provided by
article 8, paragraph 1, article 12, paragraph 1, letters a, b, article 13 letters a, b, f, h, j,
r, article 25 paragraph 2 of Law no. 319/2006 on the safety and health at work, in
the sense that he did not provide the employees with the appropriate protective
equipment, fire arms and a vehicle adequately equipped to transport monetary
values, i.e. equipped with bulletproof windows, armor in vulnerable areas,
armored safe, etc., thus exposing them to a very likely risk of aggression which
was materialized by the armed attack by an unknown person on the two
employees, who were carrying about 425,000 euros, an aggression which resulted
in the death of one of the employees and the very serious injury of the other
employee, who suffered traumatic injuries requiring 90 days of medical care,
endangered his life and caused him permanent physical infirmity and an organ
loss.
During the trial, the defendant C.V. asserted in his defense that in this case
there was no causal link between the inaction of which he was accused (that he had
not taken measures for the safety at work) and the actual outcome (death of I.C.
and the injury suffered by G.R.P.), an outcome which was caused solely by the act
of the attacker who fired several shots on the two employees. Thus, it was argued
that it was impossible for a the same result to be caused both by a deliberate action
15 Law no. 319 of the 14th of July, 2006 on Health and Safety at Work, published in the Monitorul
Oficial al României (Official Gazette of Romania), Part I, no. 646 of the 26th of July 2006.
16 Law no. 286 of the 17th of July, 2009 on the Criminal Code, published in the Monitorul Oficial al
României (Official Gazette of Romania), Part I, no. 510 of the 24th of July, 2009.
142 CONSTANTIN IOAN GLIGA
and an omission due to negligence, so either we admit that the outcome was due to
the armed attack or it was caused by the inaction of which C.V. was accused,
meaning that he failed to take the necessary measures for the safety at work.
It was also asserted that in the event that the attacker were to be identified and
subject to criminal liability, we would find ourselves, in case the thesis of the
Public Ministry were to be accepted, in a situation where two different people were
sentenced for causing the same result (death or bodily injury), under the same
circumstances (the event on the 29th/01/2009) on the same passive subjects (I.C.
and G.R.P.), but acting under different types of fault: C.V. out of negligence, i.e. he
had not taken the necessary labor safety measures and the attacker by intention, as
a result of the shots he fired on the two victims.
This situation would be unacceptable in terms of legal logic, as it is virtually
impossible for the same change of the objective reality to be caused both
intentionally by action and out of negligence, by inaction, by two different authors.
By the judgment no. 1990 of 10th/11/2015 the District Court of Brasov17
ordered the acquittal of the defendant C.V. in relation with the committing of
manslaughter, respectively bodily injury by negligence.
The court noted that from the evidence submitted in the case one may retain
the failure of the S.C. E.C. SRL and of the defendant C.V. to apply the statutory
requirements as imposed by Law no. 319/2006 on the safety and health at work.
However, the court did not consider that the socially dangerous outcome - in this
case the death of the victim I.C., and the bodily injury of the injured person G.R.P.
was not a direct consequence of the non-compliance with provisions on the health
and safety at work, but is the result of the act committed by a third party - author
of the armed attack - for which the two defendants are not held liable.
Thus, the judge called to decide in the case was of the opinion that in the case it
was necessary to verify whether produced outcome - death and bodily injury - is a
consequence of the state of danger created by the inaction of the defendants by not
taking measures to comply with the law on safety and health at work. Only to the
extent that the typical result is a manifestation of the state of danger caused by the
inaction of the two defendants by not taking the legal measures for safety and
health at work, the result can be attributed to the author. The imputation will,
however, be excluded if the result was determined directly by a cause outside the
action of the author, owing to an external factor.
Thus, although by the inaction of the two defendants a state of danger was
unquestionably created in terms of social relationships with regard to the health
and safety at work, the produced outcome cannot be attributed to them, nor is it
within the scope of the infringed law, which is aimed at preventing any accident
that might occur during the carrying out of the activity by the employees.
17 District Court of Brasov, Criminal Division, criminal Sentence no. 1990/2015, unpublished.
Brief theoretical and practical considerations cencerning crimes against life 143
In this case, it held that the act of the third party who opened fire on the two
employees of the S.C. E.C. SRL contains the entire causality of the produced
outcome, reason why these were considered as the sole cause of the death of the
said I.C. and of the injury of the victim G.R.P., an aspect which exonerates the two
defendants from responsibility for the facts adduced against them by the
indictment.
In other words, the court held that in the absence of a causal link between the
failure of the defendants to implement the provisions on health and safety at work
and the actual results produced by the action of a third party, one cannot argue
that the act of the defendants corresponds objectively to the abstract model as set
out in the incrimination norm, reason why their acquittal is necessary, pursuant to
art. 16, para. 1, letter b of the Criminal Procedure Code.
The same point of view was embraced by the Brasov Court of Appeal, which,
in the Criminal Decision no. 400/2016 dated 18th of May, 201618, held that the
armed attack on the two men is normally a totally unexpected and unpredictable
event in Romania, reason why one cannot argue that the two defendants did not
foresee the possible result of infringing their obligations to provide for conditions
of safety and health at work, although they should and could have foreseen it.
3. Indictment of a physician on duty under the accusation of manslaughter
because she had was alleged not to have complied with the rules applicable to
the restraint of patients suffering from mental illnesses, a situation which made
the victim unable to defend herself against the assault a hospital ward colleague,
which resulted in her death.
Through the indictment of the Prosecutor’s Office attached to the Sf. Gheorghe
District Court, the defendant V.I.C. was sent to trial for having committed the
crime of manslaughter, as provided and punished by art. 192 para. 2 Criminal
Code, consisting in the fact that, as a physician on duty at the Psychiatry Section of
the Hospital in the municipality of S., on the 19th/11/2013, she did not comply
with the legal provisions in force, i.e. the Order of the Ministry of Health no.
372/2006 on the enforcement procedures of the Law on mental health19 allowing
the restraining of the victim P.J. in breach of the law, then by not monitoring her
while she was restrained, thus the victim was made unable to defend herself
against the action of suppression of her life, committed by a ward colleague of the
victim, the said B.Z.
18 Brasov Court of Appeal, Criminal Division, decision in the Criminal Case no. 400/2016,
unpublished.
19 Order of Ministry of Health no. 372 of 10th of April 2006, on the enforcement rules for the Law on
Mental Health and Protection of People with Mental Disorders no. 487/2002, as amended, published in the
Official Gazette no. 373 of the 2nd of May, 2006
144 CONSTANTIN IOAN GLIGA
The prosecutor alleged that, as regards the material element of the crime, it
was represented by an inaction, resp. the fact that the defendant V.I.C. remained
passive when she was informed that the defendant D.A.Z.– a registered nurse in
the Psychiatric Section, had restrained the victim. Thus, the defendant V.I.C. was
accused by the prosecution that she did not check whether the taking of such
measure was necessary and neither did she make sure that the victim was properly
monitored after the restriction. At the same time, the prosecution accused the
defendant that she did not perform checks on the other patients in the same ward
with the victim, and as a consequence she did not know that murder perpetrator
had previously been admitted to the Psychiatric Section on numerous occasions as
a result of aggressive manifestations, so he was a potential danger to the other
patients.
Likewise, the prosecutor considered that the immediate consequence arose
from the action of the said B.Z., but it would not have occurred had the victim not
been restrained and therefore unable to defend herself, and if she had been
appropriately monitored by the medical staff after the restriction.
Regarding the causal link which must exist between the material element of
the crime and the generated result, in this case the victim's death, the prosecutor
argued that it exists, because if the legal provisions applicable in the matter had
been complied with, the death would not have occurred. The two defendants – the
physician on duty and the nurse who decided on the restraining – are
professionals, people with medical background and rich professional experience,
who should have anticipated that a restrained patient, left unattended in a ward
with other patients with psychiatric disorders, would be extremely vulnerable to
the actions of the latter.
Finally, the prosecution alleged that the form of guilt which characterized the
actions of the two defendants is the actionable negligence - they did not foresee the
result of their action, although they could and should have.
By the judgment in the criminal case no. 87/2019, pronounced on the
25th/06/201920, the District Court of S. ordered, pursuant to art. 16 para. 1 letter b
thesis I of the Criminal Procedure Code, the acquittal of the two defendants for
having committed the crime of manslaughter, considering that in the respective
case there was no causal link between the actions or inactions adduced against
them and the produced result – the death of the victim P.J.
The court held that the objective imputation theory of the outcome was the
most suited to the particular circumstances of the case and involved first the
establishment whether the action of the defendant created a legally relevant risk
for the protected social value, then whether the result produced was a consequence
of the state of danger created by the action. Thus, in a first step, one should check
whether the produced result is the outcome of the exposure to danger as created
20 District Court of Sf. Gheorghe, judgement in the Criminal Case no. 87/2019, unpublished.
Brief theoretical and practical considerations cencerning crimes against life 145
by the action. To the extent that the typical result is a materialization of the state of
danger as mentioned in the first stage, the result can be attributed to the author.
Similarly, the imputation will be excluded when, although the author created a
danger for the protected value, the result does not appear as a materialization of
said danger, but is due to an external factor, which occurred by accident.
Therefore, it was considered that in the respective case, although the existence
of the socially dangerous outcome is undeniable, neither of the two defendants can
be accused for the death of the victim P.J., which is a materialization of the state of
danger generated by the sending of the said B.Z. to the same ward with the victim
and a direct consequence of the action of the latter, which the defendants could not
objectively anticipate.
The court pointed out that for the deficiencies ascertained in the performance
of their professional duties, the defendants can be accused of the infringement of
the rights of the patient P.J. to receive an adequate medical care, but the guilty
conduct of the defendants cannot attract their criminal liability, neither for the
crime of manslaughter, nor for any other criminal offense, as it is situated outside
the sphere of the criminal offense.
Conclusions
As can be seen from the court cases above, the courts of law tend to embrace
the point of view that, in the event the produced result – the death of the victim - is
due to the actions of a third party which, for various reasons, cannot be held
criminally responsible for the crime of homicide, the person who recklessly, did
not fulfill certain obligations, thereby facilitating the production of the death,
cannot be criminally prosecuted since there is no causal link between their actions
or inactions and the occurred outcome.
Thus, we can see that the theories of causation developed in the published
literature as presented above, the ones belonging to the monist trend were the only
ones which found resonance in the judicial practice.
We consider that the acquittal solutions pronounced in such matters are legal
and justified, as the courts made a pertinent analysis of the causation, both in
theoretical and in practical terms, taking into account the specific circumstances of
each case.
Given this case-law orientation, in the sense of finding that the typical
elements of the crime of manslaughter are not met in such cases, we hope that, as a
result of the dissemination of the argumentation used by the courts of law to
substantiate the delivered solutions, a change will occur also as regards the
practice of the Prosecutor’s Offices so that in future such cases may already be
solved during the criminal prosecution phase by ordering a nolle prosequi solution
(of taking no further action).
