Rocío Martín Ríos
Prosecutor Attached to the Prosecutor's Office
Road Safety of Andalucía, Ceuta and Melilla. Provincial Prosecutor's Office of Seville.
PhD on Law from the University of Salamanca.
Master in Road Safety and Traffic
CRIMES
OF MANSLAUGHTER AND RECKLESS INJURY COMMITTED WITH A MOTOR VEHICLE OR MOPED
CRIMES OF MANSLAUGHTER AND RECKLESS INJURY COMMITTED WITH A MOTOR VEHICLE OR MOPED
Summary: INTRODUCTION 1 REGULATORY CONSIDERATION OF RECKLESS CONDUCT IN OFFENCES AGAINST ROAD SAFETY. 2 JURISPRUDENTIAL CONTRIBUTION TO THE DEFINITION OF RECKLESSNESS IN OFFENCES AGAINST ROAD SAFETY. CONCLUSIONS.
Resumen: La preocupación por reducir las altas tasas de siniestralidad en el ámbito de la seguridad vial motivó que el legislador penal pusiera el foco de atención en los siniestros con resultado de fallecimiento o lesiones ocasionados por conductas imprudentes cometidas con vehículo de motor o ciclomotores.
A través de un análisis crítico de las sucesivas reformas a que se sometió el Código Penal en lo relativo a los delitos imprudentes cometidos en dicho ámbito se pretende ofrecer criterios orientativos para identificar las conductas que pueden considerarse efectuadas mediante negligencia grave o menos grave y cuáles, por ser catalogadas como imprudencia leve, quedan excluidas del reproche penal y han de buscar respuesta en la jurisdicción civil.
A tal fin, se tendrán en cuenta las aportaciones doctrinales y jurisprudenciales que han ido acompañando al aplicador de la norma en la interpretación de dichas reformas.
Abstract: The concern about reducing the high accident rates in the field of road safety prompted the criminal legislator to focus on accidents resulting in death or injuries caused by reckless behavior committed with motor vehicles or mopeds.
Through a critical analysis of the successive reforms made to the Penal Code regarding reckless crimes committed in this area, it is intended to provide guiding criteria to identify behaviors that can be considered as carried out through gross negligence or less severe negligence, and which, being categorized as slight recklessness, are exempt from criminal reproach and must seek redress in the civil jurisdiction.
To this end, doctrinal and jurisprudential contributions that have accompanied the applicator of the standard in interpreting these reforms will be taken into account.
Palabras clave: Imprudencia, deber de cuidado, peligro, riesgo, seguridad vial.
Key words: Negligence, duty of care, danger, risk, road safety.
INTRODUCTION
The technical and scientific progress made means that over the last century society has experienced unquestionable benefits in terms of general well-being, while situations have been created that may pose a risk to citizens. This has led to the need for criminal law to intervene to control, insofar as possible and always on the basis of the principle of minimum intervention, conduct that could lead to such situations.
An example of this is in the area of road safety. The increase in the number of journeys made using motor vehicle has led to a worrying situation as regards the number and severity of road accidents. In most cases, the human element was at the root of the problem, which is why the problem had to be tackled from all angles and, of course, from a criminal perspective. Legislators, aware of this reality and with a view to curbing both the number of road accidents and their consequences, specifically penalise reckless conduct committed with a motor vehicle or moped resulting in death or injury.
The commendable intention of legislators was clouded by the opacity of the regulation since, despite the fact that the criminal text has been amended several times, it is very difficult to understand in which recklessness should be considered serious, less serious or minor. The question is by no means trivial in view of the difference not only in procedural but also in criminal treatment.
In recent years, attempts have been made to give regulatory content to the cases that would fit within the scope of the offences of reckless manslaughter and injury committed by motor vehicle or moped as a breach of the rule of care, although none of the reforms made have been very well received by legal operators given the difficulty of understanding them. Although none of the reforms is completely satisfactory, the desire to shape this figure must nevertheless be acknowledged.
The aim of this paper is to shed light on the criteria to be taken into account in order to fit the conducts into each of the types of recklessness.
1 REGULATORY CONFIGURATION OF RECKLESS CONDUCT IN ROAD SAFETY OFFENCES
1.1 THE REFORM BROUGHT ABOUT BY ORGANIC LAW 1/2015 OF 30 MARCH 2015
To understand the current regulation of recklnessness and the punitive line set by the legislator, it is essential to have an understanding of the previous reforms that explore this matter. From 2014 onwards, the downward trend seen in previous years was reversed and the number of road traffic fatalities started to increase again. This led to a criminal approach to recklessness with a view to avoiding an upward trend, leaving aside other aspects of everyday life where careless behaviour was also the source of many harmful results (e.g. in the health or food sector).
Organic Law 1/2015, of 30 March, amending Organic Law 10/1995, of 23 November, of the Criminal Code (hereinafter, LO 1/2015) offered, in Arts. 142 and 152 CC, a new approach to reckless manslaughter and injuries, introducing the following new developments with respect to the previous regulation: it classified criminal offences into serious, less serious and minor offences[1], eliminating the category of misdemeanours (and, with this, the title relating to them); secondly, it decriminalised manslaughter and injuries caused by minor recklessness. And finally, it introduced less serious recklessness.
Specifically, in relation to the crime of reckless manslaughter (art. 142.2 CP), less serious reckless manslaughter was categorised, becoming a minor offence in consideration of the length of the penalty (Art.13.4. CC[2] in relation to Art. 33 CC); it established the penalty of deprivation of the right to drive motor vehicles and mopeds on an optional basis when the manslaughter was caused by the use of a motor vehicle or moped. It also constituted the offence as a semi-public offence (requiring a report being filed by the victim or their legal representative for its prosecution). This meant that forgiveness on the part of the victim ex Art. 130.1.5 CC extinguished criminal liability.
In turn, the crime of reckless injury (Art. 152.1 CC) was subject to the following changes: when the injuries were caused by serious recklessness, a fine was contemplated as an alternative to imprisonment; the injuries provided for in Art. 147.1 CC committed through less serious recklessness were excluded; the injuries established in Arts. 149 and 150 CC committed with less serious recklessness became a minor offence in terms of the penalty (fine of 3 to 12 months); the penalty of deprivation of the right to drive when the injuries were caused using a motor vehicle or moped committed with less serious recklessness became optional; for the initiation of proceedings (i.e. as a requirement for prosecution), the victim or their legal representative was required to file a report, which, as in the case of manslaughter, made it possible for the victim to forgive the offender to extinguish criminal liability (Art.130.1.5 CC).
1.1.1 The origin of the reform
The main innovations in the reform made under Organic Law 1/15 were the creation of less serious recklessness (a previously unknown concept) and the decriminalisation of minor recklessness. This meant that the injuries under Art. 147 CC committed by minor recklessness (former misdemeanour under Art. 621.3 CC) and manslaughter also caused by minor recklessness (included in the former Art. 621.2 CC) were criminally atypical.
The elimination of misdemeanours was based on the Explanatory Memorandum of Organic Law 1/2015 on the principle of minimum intervention in criminal law, limiting the punitive rebuke to “serious cases of recklessness”. Cases involving minor recklessness would therefore be limited to civil law.
However, this referral to civil jurisdiction was not well received by victims’ associations and a wide sector of both the doctrine and legal operators. It also eliminated the intervention of the Public Prosecutor's Office (hereinafter, PPO) in the proceedings, despite the fact that the most important legal assets were at stake: life and physical integrity. In fact, for De Vicente Martínez (2017), “it is probably the most debatable decision that has been taken regarding the decriminalisation of misdemeanours”. Secondly, it was indisputable that citizens deciding to take legal action were required to assume outlays not contemplated in criminal jurisdiction, as their involvement required defence by a lawyer and representation through a solicitor. This prompted, mainly, victims’ associations to raise their voices against the reform, suspecting that the only ones to benefit from it would be the insurers. According to De Vicente Martínez (2017, p.5), the disadvantages for citizens would result in a significant decrease in the number of claims originating outside road accidents, as citizens would refuse to file legal action in a slow and costly jurisdiction.
On the other hand, authors including Cuello Contreras and Mapelli Caffarena (2015) consider that the decriminalisation of minor recklessness was not a direct motivation of the legislator, but rather a collateral effect of the main consequence sought by the legislator: the elimination of Book III of the Criminal Code, on Misdemeanours.
Organic Law 1/2015 aimed to justify the elimination of minor recklessness from the criminal acquis through the Explanatory Memorandum of Organic Law 1/2015, alluding to the fact that the new regulation would allow a “better graduation of criminal liability depending on the conduct deserving of reproach while, at the same time, allowing for the recognition of cases of minor recklessness that should remain outside the realm of criminal law”. Through the second clause, it admitted the existence of cases that would receive a criminal response even when there is a minor breach of the duty of care.
1.1.2 Incorporation of less serious recklessness
One of the main innovations introduced by Organic Law 1/2015 was, therefore, the introduction of an intermediate figure between serious and minor recklessness: less serious recklessness, which could only be appreciated in cases of manslaughter and injury under Articles 149 and 150 CC, and was excluded in injuries under Article 147.1 CC. Given that the institution was born without specific content, doctrine and case law have been called upon by the need to make a conceptual definition that would make it possible to establish the cases to be included in one category or another.
Authors such as Delgado Sancho (2017) anticipated the interpretative problems that establishing the limits of the serious/less serious recklessness would entail. Thus, despite already being (on many occasions) difficult to distinguish between serious and minor recklessness, the introduction of the new category, which is even more similar to serious recklessness, adds a new layer of difficulty.
Some considered that this was a “terminological” modification in which the legislator only substituted the expression “minor recklessness” with “less serious recklessness” (Ramón Ribas (2015)), so that “minor recklessness” would remain in the CC after the reform.
In Opinion 2/2016 on Organic Law 1/2015 of 30 March 2015 amending the Criminal Code (hereinafter, Opinion 2/2016), the Public Prosecutor's Office for Road Safety Coordination (hereinafter, FSCSV) pointed out three reasons why such a comparison should not be made:
1. paragraph 31 of Explanatory Memorandum distinguishes them,
2. there are grammatical differences, as “less serious” recklessness entails a comparative analysis that distances it from minor recklessness,
3. the penalties provided for minor offences under arts. 142.2 and 152.2 are higher than those established for the former misdemeanours included in art. 621.1 and 3, with their correlative impact “on the statute of limitations for the offence and penalty of arts. 131.1 and 133.1 and in the cancellation of art. 136.1 c)”, which is why “it cannot be considered that the greater punitive response does not go hand in hand with a greater disvalue of the punishable conduct”.
A second thesis considers that less serious recklessness partially comprises minor recklessness, accounting for the most serious cases of minor recklessness. In this way, they argue, minor recklessness does not fall outside the criminal framework and very minor conduct is handled as part of civil proceedings, respecting the ultima ratio of criminal law.
For Galán Cáceres (2017), it is possible that conduct prior to the reform considered minor (the former misdemeanours) will end up being taken to the realm of less serious recklessness in order to ensure the right to compensation for victims and also “to prevent conduct causing serious results from going unpunished”.
As a criticism of this possibility, we believe that the new minor offence of manslaughter and injuries due to less serious recklessness would have the minimum penalty typical of a minor offence, but by having a maximum penalty of 18 months’ fine for manslaughter and 12 months’ fine for injuries, a higher amount was envisaged than contemplated for the former minor offences, imposing penalties that, in reality, were typical of less serious offences.
Specifically in order to prevent minor recklessness from suffering a criminally disproportionate punishment, a minimum penalty was set which was included in the range of minor offences so that, ex art. 13.4 PC, it would retain this nature.
The advantages of this conception are, on the one hand, that the increase in the penalty for this type of case is in line with the approach that it covers the most serious cases of minor recklessness and, on the other hand, that it eliminates the possibility of bringing cases of very slight recklessness before the criminal courts and avoids the disqualification of cases of careless conduct of a certain level.
Others consider that less serious recklessness covers minor conduct involving serious recklessness. In this way, the punishment for the most minor offences is reduced in terms of seriousness and they are punished as minor offences.
As a criticism, we must point out that they overlook the the main aim of the reform (as can be deduced from the Explanatory Memorandum), which was not to punish lesser forms of serious recklessness with lesser penalties, but to avoid the disqualification of the most serious conducts within the minor ones. The criticism of the previous thesis that there had been a punitive increase in relation to former misdemeanours, is used by advocates of this theory to turn it into an argument in their favour.
In our view, less serious recklessness constitutes a new conceptual category. It differs from gross recklessness in the intensity of the duty of care, which means that the seriousness of the breach of the duty of care that would constitute gross recklessness is reduced. To determine such a categorisation, a case-by-case analysis is required.
The reform places the infringement of the administrative rule as the starting point for determining the seriousness of the recklessness committed. In spite of this, there has been no shortage of judicial bodies that have continued to use the criterion of the infringement of the administrative rule as an essential criteria for weighing recklessness[3].
Opinion 2/2016 determined that, in order to assess the extent of the carelessness, attention should be paid to the elementary nature of the duty of care breached, “essential to safeguarding road safety”. To this end, both the serious or very serious nature of the infringements had to be taken into account (Arts. 76 and 77 Royal Legislative Decree 6/2015, of 30 October, approving the consolidated text of the Law on Traffic, Circulation of Motor Vehicles and Road Safety (hereinafter, LSV) as the nature of the risks created for the legal assets of all users “taking into account the traffic of density and the number of potentially affected persons”.
The Opinion, aware of the need to avoid automatisms, encourages a case-by-case analysis. Even so, it offered some guidance on how to distinguish between serious and less serious recklessness. Its Conclusion 11 included the manoeuvres in which serious recklessness could be considered due to the seriousness of the rule of care infringed, while its Conclusion 12 contemplated the conduct that could be considered as serious recklessness as they affect the regulatory duty of care of the LSV that affect the basic conditions of road safety, the elementary rules for risk-free driving and which are associated with the serious or very serious infringements foreseen in Arts. 76 and 77 LSV.
Opinion 2/2016, in a educational manner, equates serious recklessness to the violation of elementary rules of caution or duties of care required of any person; less serious recklessness to the violation of rules of care respected by the average citizen; and slight recklessness to the omission of duties of limited relevance. It does not confuse serious infringement with gross recklessness, but rather weights it according to the breach of the duty of care. There are behaviours that constitute serious or very serious offences according to the LSV and that leave no doubt as to their serious recklessness given the nature of the breach of the duty of care, such as reversing on a motorway. However, if a vehicle was reversed down an urban road with no direct danger to third parties, the conduct could be considered less serious.
This being so, the breach of the administrative rule aimed at controlling the risk of traffic offers indications that a standard of care has been infringed, but the administrative rule cannot be equated with the duty of care. Thus, a breach of the duty of care does not always occur when there is a serious infringement of the LSV. In this sense, Daunis Rodríguez (2018, p. 18) is in favour of linking the seriousness of the recklessness to “the intensity or seriousness of the breach of the duty of care and not the seriousness of the administrative offence”. Rueda Martín (2009) agrees.
Therefore, in order to determine whether the agent engaged in reckless conduct, we cannot only look at the infringement of the administrative rule, but also at the endangering or damaging of the protected legal asset, as the situation may arise in which an administrative rule is infringed but does not involve an action that is not altogether prudent from a criminal point of view, as no asset has been endangered. And vice versa. However, as we shall see, subsequent reforms have tended to use the seriousness of the offence as a criteria for classifying recklessness.
As Trapero Barreales (2019) warns, conduct consisting of the omission of essential rules of care would exclude the possibility of less serious recklessness as they should be considered as serious (provided that there is a causal link with the result produced), and the same would happen when the lack of attention is minimal, because this would constitute minor recklessness rather than less serious recklessness.
Daunis Rodríguez (2018, pp. 39-40) proposes a formula for distinguishing between serious recklessness and less serious recklessness: recklessness deriving from mere absent-mindedness or lack of due attention would constitute minor recklessness, which would be excluded from criminal proceedings; cases in which the diligence required of an average person is omitted would constitute the intermediate form of recklessness and, when there is a serious attack on the standard of care, this should be considered serious. In any case, we add, it would always be necessary to analyse the case in hand to assess the breach of the rule, the breach of the duty of care and the causal relationship with the result, without any merely a priori criteria being possible for the classification.
1.2 THE REFORM BROUGHT ABOUT BY ORGANIC LAW 2/2019 OF 1 MARCH 2019
1.2.1 The new regulation of recklessness
Organic Law 2/2019, of 1 March, amending Organic Law 10/1995, of 23 November, of the Criminal Code, on reckless driving of motor vehicles or mopeds and penalties for leaving the scene of an accident (hereinafter, Organic Law 2/2019) amended certain aspects with respect to the regulation made in 2015.
In relation to the crime of manslaughter, it introduced a hypothesis ope legis: driving in which the concurrence of some of the circumstances foreseen in Art. 379 CP (excessive speed, driving under the influence of alcohol and/or drugs or exceeding the legal limits) determined the production of the fact would be considered serious recklessness. In turn, Art. 142.2 CC, in relation to cases of less serious negligent manslaughter, added a new factor, establishing a criteria to determine when recklessness would be considered less serious, suggesting that recklessness that is not serious and in which there is a serious breach of traffic regulations, provided that said breach is the cause of the fact, should be considered less serious. In any case, it indicates that this would be “subject to assessment” by the court authority.
Furthermore, less serious negligent manslaughter could only be prosecuted following “a complaint by the injured party or their legal representative”, bestowing upon it the nature of a semi-public offence.
Through Art. 142 bis CC, lawmakers incorporate two aggravated categories for the cases of Art. 142.1 (manslaughter caused by gross recklessness), providing for the penalty to be increased by one or two degrees if two or more people have died or the death of one person and the others have suffered injuries pursuant to Art. 152.1. 2 or 3, and the possibility of imposing the penalty two degrees higher in case of multiple deaths.
With regard to the offence of causing injury, it is presumed that serious recklessness would be considered as cases of driving in which any of the circumstances foreseen in Art. 379 CC occur and cause the production of the fact. This is punished when the less serious recklessness causes injuries that require medical or surgical treatment in addition to initial medical assistance (Art. 147.1 CC) and, lastly, it considers less serious recklessness using the same formula used for manslaughter.
Similarly, the procedure can only be initiated when a complaint is filed by the aggrieved party or their legal representative.
Finally, it introduces into Article 152 bis CC a specific offence equivalent to Article 142 bis for injuries in identical terms to the provisions in the case of manslaughter.
1.2.2 The origin of the reform
The Preamble of the Organic Law bases the reform on the “increase in accidents” (road accidents) caused by the use of motor vehicles or mopeds in recent years involving pedestrians and cyclists as victims. This gave rise, according to the Preamble, to a “significant social demand”, mainly on the part of these groups considered to be vulnerable. There has been no shortage of criticism of this justification, on the grounds that the root of the reform lies not so much in the objective increase in figures as in the “media impact” of certain accidents in which the victims were pedestrians and cyclists. The critical core includes Lanzarote Martínez (2019, p 2 et seq.). Indeed, the regulatory review was triggered by a campaign launched by the widow of a cyclist hit by a hit-and-run lorry driver[4]. On the other hand, in absolute terms, there was no increase in the number of accidents, rather the decrease in the number of crashes meant that, within the total number of casualties, vulnerable victims increased as a percentage of the total number of casualties.
The 2019 reform gave a criminal response to those who urged that the cases causing injuries under Art. 147 1 CC committed involving less serious recklessness would receive a response ius puniendi. Despite this, it was criticised for leaving conduct involving minor recklessness outside the scope of criminal law, forcing the victim to go to civil court to pursue their interests.
In our opinion, lawmakers missed the opportunity to raise the penalty for manslaughter caused by gross recklessness. The limited maximum penalty that could be imposed for the offence (4 years) means the preventive purposes (both special and general) pursued go unfulfilled. On the one hand, this is because it is rare that people will be imprisoned for a crime of this nature and, on the other hand, it creates an image in society that the punishment attached to the crime is not particularly severe.
1.2.3 The definition of serious and less serious recklessness
The 2019 reform was intended to facilitate an understanding of what should be considered serious recklessness, presuming that it would be “in any case” when any of the circumstances contemplated in Art. 379 CC were present and this was a determining factor in the production of the fact. It does not act as a numerus clausus, as there may be other cases of driving in which the breach of an essential standard of care gives rise to a serious risk resulting in a serious outcome (manslaughter or injury) and constitutes gross recklessness. This consideration is supported not only by the fact that the legislator mentions that this is considered “in any case”, without ruling out other possibilities, but also by the fact that less serious recklessness will be so when “it is not qualified as serious”. Frías Martínez (2019) is in favour of this consideration. In the opinion of Rodríguez Lainz (2019, p.9) a very serious administrative offence could lead to serious or less serious recklessness, just as serious offences can lead to less serious recklessness.
The expression “shall in any case be considered as serious recklessness” has been criticised for applying a formula of automatic interpretation in which whenever one of the circumstances of Art. 379 CC is present, the recklessness must be considered as serious. An attempt was made to mitigate the harmful effect of the presumption iuris et de iure by specifying that it would also be required to “determine the production of the fact”. Thus, a causal link between the infringement of the rule and the result was required. The existence or absence of the causal link was decided at the discretion of the court authority.
Therefore, it was not in all cases in which one of the conducts of Art. 379 PC was committed and an injury was caused, that serious recklessness should be assessed ope legis, as a causal link must be established between the seriousness of the breach of the duty of care and the result of manslaughter or injury. And this is despite the restrictive formula “in any case”, because otherwise an accident could be classified as having been committed due to gross recklessness for falling within the type of art. 379 CC when the cause of the accident could be found, for example, in a distraction at the wheel caused by the use of a mobile phone.
Case law has reached a consensus in relation to the consideration that the determining factor for the degree of recklessness is not the result produced, but the transcendence or intensity of the duty of care infringed, based on the requirement that has to be asked of an average person (Roig Torres, 2022, p. 89).
Less serious recklessness was defined by Organic Law 2/2019 in Arts. 142.2 point two of the second paragraph and Art. 152.2 point two of the second paragraph, for cases of manslaughter and injury, respectively. The wording was imprecise, defining less serious as whatever was not a serious infringement of administrative road rules. However, the appreciation of the facts was left to the discretion of the judge.
If in relation to serious recklessness we concluded that the reference to Art. 379 could not be understood as a closed list (“shall be considered in any case”, leaving other avenues open), the Explanatory Memorandum of Organic Law 2/2019 seems, on this occasion, to provide a closed catalogue in relation to the assumptions that can be included in the less serious offence. Thus, the Explanatory Memorandum refers to an “authentic interpretation” of less serious recklessness, which should be considered binding. This seems to be the conclusion reached by the expression “shall be regarded as less serious recklessness (...) provided that the act is the consequence of a serious offence”, as this is only the case when the perpetrator commits a serious traffic offence.
A contextual interpretation of this expression would lead to the immediate application of at least less serious recklessness whenever there is a serious traffic offence. The legislator qualifies this presumption and makes it even more cumbersome with the clause “the judge or court shall assess the seriousness of the recklessness”, as it once again grants the court authority the power to assess the seriousness of the recklessness. As a result, the judge could assess the conduct as serious, less serious or minor, after analysing the infringement of the standard of care and the causal relationship with the harmful result. In line with the opinion of Roig Torres (2023), it does not seem that the legislator advocated this solution when introducing the authentic interpretation of less serious recklessness.
In our view, it is not always the case that where there is a very serious or serious infringement, the recklessness should systematically be considered as at least minor. The administrative traffic regulations classify offences as very serious, serious and minor and, although it is true that the classification of offences can serve as a benchmark for the determination of recklessness as regards the determination of the infringement of the duty of due care (in such a way that very serious offences could constitute serious recklessness and very serious or serious offences would correspond to less serious recklessness), this is insufficient, especially when not all offences that are classified as serious constitute reckless driving, as they do not increase the risk of driving. There is therefore a disconnection between conduct classified as serious and the definition of less serious recklessness in the CC. The specific circumstances of the injury or manslaughter must be assessed, not only whether or not the rule regulating the activity that caused the harmful result was breached. And this assessment will lie with the judge, in accordance with the letter of the law (“the judge or court shall assess the nature of the case”).
In fact, when Art. 76 states that “these are serious offences, when they do not constitute a crime”, we can conclude that the LSV itself assumes that there may be conduct that is administratively reproachable in a serious way but which does not merit criminal reproach, either because the offence did not cause the accident or because it is not considered a major breach of the duty of care.
We have seen that the LSV makes a threefold classification of infringements: very serious, serious and minor. Although the CC only mentions serious offences, the fact is that, in line with what has already been indicated, not all serious offences give rise to serious recklessness, nor can a minor offence exclude the possibility of less serious recklessness being applied. If, for example, the driver is unfit to drive the vehicle because they are unwell or drowsy, but nevertheless decide to drive, this could lead to injury caused by inattention while driving. This would be a minor offence which could lead to less serious or serious recklessness. In fact, Supreme Court Ruling 1491/1982 of 27 November 1982 (ECLI:ES:TS:1982:609) already considered that the conduct of a person who drove under the effects of medicine whose side effect was drowsiness and, as a result, fell asleep at the wheel, causing an accident that resulted in several fatalities, constituted gross recklessness or recklessness.
Magro Servet (2019, pp.4-7) takes the opposite view, considering that the reference to administrative regulations implies that in those cases in which a serious administrative offence is committed in the field of road safety, according to the new regulation of Arts. 142.2 and 152.2 PC, it should be considered as less serious recklessness.
For Aguado López (2019), one of the main criteria for defining the degree of recklessness is the foreseeability of the result, so that the more foreseeable the result, the more serious the recklessness.
On the other hand, we cannot detract from the introductions made by the reform that are worth praise. This includes the punishment of the injuries foreseen in Art. 147.1 CC that were committed involving less serious recklessness.
1.3 THE REFORM BROUGHT ABOUT BY ORGANIC LAW 11/2022 OF 13 SEPTEMBER
1.3.1 The new regulation of recklessness
In a single article, Organic Law 11/2022, of 13 September, modifying the Criminal Code regarding reckless driving of motor vehicles or mopeds (hereinafter, Organic Law 11/2022) reformed art. 142 and 152 CC introducing the following new features: added to the definition of manslaughter due to less serious recklessness the legal presumption “in any case” when the requirements already established by the provision are met, as well as that it would be up to the judge to reasonably assess the existence of the causal relationship between the breach of the duty of care and the occurrence of the event; converted less serious reckless manslaughter into semi-public; modified Art. 152.2 paragraphs one and two, sanctioning anyone who, through less serious recklessness, causes injuries under Art. 147.1, increasing the penalty for the injuries referred to in Arts. 149 and 150 and introduced the same presumption with regard to injury for the assessment of less serious recklessness as for manslaughter.
Once again, the approach to recklessness taken by Organic Law 11/2022 is limited to the field of recklessness committed through the use of a motor vehicle or moped.
1.3.2 Justification of the so-called “cycling law”.
The cycling community was not considered sufficiently protected under Organic Law 2/2019, which is why the Spanish Cycling Association demanded a new reform to “avoid the loopholes in the law that allow less serious recklessness to be archived when injuries or death occur after the commission of an offence classified as “serious”” in the LSV, and which, “as a matter of routine, the courts consider “minor” and therefore do not generate criminal liability, using the power given to them by the law with this wording”.
The truth is that, despite the continuous legislative will to protect the victims of road crimes, the modifications introduced by Organic Law 1/2015 and Organic Law 2/2019 led to proceedings being shelved when the conduct was judicially classified as minor recklessness, even when injuries or even death were caused. This obliged victims to resort to civil jurisdiction, which led to strong criticism, as we have seen, both from a doctrinal sector and from road safety victims' associations.
However, the Preamble insists, it is not intended to reduce the courts’ powers to determining whether there was recklessness, whether there was a serious administrative infringement of traffic regulations or whether there was a “causal link between the reckless act and the result of death or relevant injuries”. These words were used to justify the introduction of new formulas which, without eliminating the judge’s assessment with regard to the assessment of recklessness, would facilitate the assessment of less serious or serious recklessness if a serious infringement of the LSV was committed. [5]
Organic Law 11/2022 aims to remove the option of judges deeming that there has been minor recklessness in cases where there is a serious infringement of traffic rules and there is a significant harmful result (death or injury). However, Roig Torres (2023) considers the regulation confusing. First of all, it seems to establish ope legis that if the judge or court decides that the motor vehicle or moped was driven recklessless, resulting in a serious infringement of traffic regulations (art. 76 of the LSV) resulting in death or significant injuries, the recklessness must be classified at least as less serious, but never as minor. However, it includes the clause “...the assessment of whether or not the determination exists must be made in a reasoned decision”, which means that the judge or court must not only decide on the seriousness of the offence or the type of recklessness, but also establish a causal link between the serious infringement of traffic law and the result of death or injury. Moreover, this causal link must be established by means of a reasoned decision in order for it to be considered an objective offence, so as not to exclude such conduct from criminal proceedings.
For the Spanish Cycling Association, the wording still leaves loopholes through which, even if there was a serious infringement of traffic rules and the conduct resulted in death or injury, could lead to proceedings being closed under the judicial power to classify the conduct as minor.
1.3.3 The definition of serious and less serious recklessness
The hypotheses established by Organic Law 2/2019 to define serious and less serious recklessness by means of a reference to the offences of the LSV were criticised for being perceived as limiting the jurisdictional power to define the degrees of recklessness. This meant that the courts gradually qualified the legal provision by recognising the judge's power to identify the degree of recklessness, so that not every time an injury was produced as a result of a serious administrative offence, should it necessarily be related to serious recklessness. However, if a serious offence was committed and the judge classified it as minor recklessness, he had to give reasoned and sufficient reasons for this[6].
Organic Law 11/2022, aimed to make progress in the fight against the automatism in which, according to the different associations, the courts were incurring by applying minor recklessness and, through the arts. 142.2 and 152.2 introduced, the presumption iuris et de iure that went beyond the jurisprudential trend that empowered the judge to assess slight recklessness. On the basis of this hypothesis, when the injuries resulting from a road accident are fatal or serious injuries and a serious infringement of road regulations had been observed, judges or courts were unable to consider the recklessness as minor. In this way, as Roig Torres (2023, p.166) observes, “they converted the formula introduced by Organic Law 2/2019 into a presumption iuris et de iure".
The new features of the current regulation compared to the previous regulation of 2019 focus on the definition of less serious recklessness with respect to serious recklessness through Arts. 142.2 and 152.2 CC, the aim of this amendment is that, in all cases in which a serious harmful result is caused and a serious offence occurs, the assessment of recklessness in its lesser degree, that is, minor, is not possible.
However, it misses the opportunity to provide a clear regulation that clarifies the distinction between serious and less serious recklessness and instead presents a text that is difficult to understand. On the one hand, it establishes a presumption ope legis and then indicates in the final paragraph that the assessment of the “existence or not of the determination must be made as part of a reasoned decision”, which only refers to the causal link between the breach of the duty of care and the result, not to the fact that it is up to the judge to determine whether the recklessness is serious, less serious or minor. This is because the first part of the precept made it clear that minor recklessness was ruled out when there was a serious breach of the road safety rule. In the words of Roig Torres (2026, p.186) “there is a lack of such a motivation also required with regard to the level of serious or less serious recklessness”, referring exclusively to the judgement of causality and not to the nature of the carelessness “which requires greater justification because it depends on the subjective assessment of the judge on the basis of objective data”.
The main criticism is that the focus is no longer on the breach of the duty of care and the seriousness of the resulting risk, but on the administrative rules. Non-compliance with the administrative rule will be the prevailing criteria for the criminal qualification of the conduct, in such a way that, if the rule breached is classified as very serious or serious, the conduct will receive the punishment of ius puniendi by the State, provided that the judgement of causality is appropriately established by the court. However, such an offence cannot be considered a minor offence.
In cases such as disregarding road signs or right of way, if this leads to an accident resulting in a serious injury, this will give rise to the offence of reckless manslaughter or injury if, in accordance with Arts. 142 and 152 PC, the nexus of causality was established, depriving the judge of the ability to assess the other concurrent circumstances.
The motivation behind the most recent wording is none other than to prevent the victims of serious accidents from being forced to resort to civil proceedings, with all the economic and time disadvantages indicated above.
The fact that the reform is so recent, however, prevents us from knowing how it will ultimately be applied by the courts. They may refrain from employing a literal interpretation of the rule and assess the concurrent circumstances, not appreciating an offence even if the conduct would constitute a serious administrative offence in cases where the recklessness associated with it is considered to be minor.
For Rodríguez Lainz (2022), the emphasis must be placed on the decisive nature of the causal relationship between the infringement and the harm caused, since not only must it exist, but it must also be relevant. In their view, this determination is as an element of the offence. However, he warns, the judge is given a moderating capacity by subjecting the relevant nature of the breach in the production of the harm to his criteria. In this regard, he states: “This same power of weighing the administrative infringement as a determining factor of the harm would make it easier to take into account the nature of the infringement, as established in the rule that is being amended”.
Magro Servet (2022) stresses the idea that the difference between serious and less serious recklessness lies in the intensity of the breach of the duty of care, in such a way that it would be considered serious when there is a “more intolerable neglect of the factual conduct that the perpetrator must control”, causing a risk that leads to a harmful result.
Following the latest reform in relation to harm caused by under Organic Law 11/2022, the FSCSV issued the following Opinion 1/2023 on the reform introduced by Organic Law 11/2022, of 13 September, amending the Criminal Code in the area of reckless driving of motor vehicles or mopeds (hereinafter, Opinion 1/2023), with a view, amongst other issues, to clarifying the concept of less serious recklessness.
The new wording, according to the Opinion, aims to limit the judge’s discretion, as in the previous wording, by eliminating the expression “once the judge or court has assessed its seriousness” and including the formula “in any case” (“shall be considered, in any case, as less serious recklessness”).
For the purposes of this study, the Opinion emphasises the provisions of the previous opinions 2/2016 and 1/2021, the need to avoid automatisms and make case-by-case assessments for the classification of recklessness.
It concludes that whenever there is harm caused with a motor vehicle or moped in which there has been a serious infringement of traffic rules and an objective allocation of the result is made, the recklessness must be considered at least as less serious. Thus, the infringement of the serious administrative rule will act as an indication of the seriousness of the recklessness.
However, if the result caused by the conduct was not objectively foreseeable or would have occurred even with a negligent attitude, strict liability would have to be denied. On the other hand, if the elements of objective allocation are present and the infringement of the serious rule was decisive in the production of the result, the recklessness must be assessed at least as less serious.
2 JURISPRUDENTIAL CONTRIBUTION TO THE DEFINITION OF RECKLESSNESS IN OFFENCES AGAINST ROAD SAFETY
One of the most difficult and controversial issues in the field of recklessness in the framework of road safety is to establish which conducts would be included in serious recklessness and which in less serious recklessness, due to the changes made to criminal law in recent times (three modifications in seven years).
Despite the fact that criminal law has tried to establish objective criteria to classify the breach of the duty of care and to limit the jurisdictional power in this task[7], successive reforms have left such a wide margin of discretion that it contradicted the intended objectivity and continued to leave to the decision about the degree of recklessness to the judge’s discretion. In this context, the case law of the Supreme Court has been fundamental in setting the parameters for defining both figures.
The first time the High Court ruled on less serious recklessness was in Supreme Court Ruling 805/2017, of 11 December (ECLI:EN:TS:2017:4867), on the “Madrid Arena case”, where it concluded that recklessness is a criminal concept, not an administrative one.
Plenary Supreme Court Ruling 421/2020 of 22 July (ECLI:ES:TS: 2020:2533) was issued for the unification of doctrine in matters of recklessness in road traffic. To distinguish serious recklessness and less serious recklessness, it followed the line marked by the aforementioned Supreme Court Ruling 805/2017, of 11 December (ECLI:ES:TS:2017:4867), which in turn followed in the wake of Opinion 2/2016. It defines less serious recklessness as that which gives rise to a lesser risk than serious recklessness, in which there is a “breach of the average duty of foresight in the activity of the agent in the conduct corresponding to the conduct in question” and which is in a casual relationship with the harm caused. Gross recklessness is described as “the omission of the most intolerable care”, through an action or omission that results in harm.
The Supreme Court Ruling 945/22 of 12 December (ECLI:ES:TS:2022:4627) states that the incurrence in a serious infringement of the LSV, when it was decisive in producing the damage, is a solid indication that less serious recklessness was committed. It warns that there can be no automatism, since the same offence, depending on the other concurrent circumstances, may give rise to the three types of recklessness (serious, less serious and atypical minor). Thus, citing Supreme Court Ruling 284/2021, of 30 March[8](ECLI:TS:2021:1159), which in turn cites Supreme Court Ruling421/2020, of 22 July (ECLI:ES:TS:2020:2533), it is recalled that the 2019 reform sought to clarify the differentiation by focussing on a serious traffic offence, but such an offence can give rise to the three types of recklessness depending on the “magnitude of the breach of the duty of care”.
Supreme Court Ruling 284/2021, of 30 March (ECLI TS:2021:1159) considered that lawmakers in 2019, by referring to the conducts in Art. 379, established a presumption of serious recklessness that is “exhaustive”, but not exclusive. It is “exhaustive” in the sense that whenever these cases occur and a result deriving from the risk in question is produced, the recklessness will be serious, except in the case that the serious infringement of the standard of care was not a determining factor in causing the result. In relation to less serious recklessness, on the other hand, the reference to administrative regulations is for the purposes of guidance only. Even if the offence is serious, it may be considered as entailing either serious or minor recklessness, depending on the circumstances. Otherwise, given the breadth of Art. 76 m) LSV which classifies “negligent driving” as a serious offence, most non-serious conducts would automatically be considered as less serious through this kind of Pandora’s box, which must be rejected.
It criticises the authentic interpretation of the rules, which would lead to the objectivisation that is at odds with the assessment of the circumstances involved[9].
Supreme Court Ruling 344/22 of 6 April (ECLI:TS:2022:1492) recalls that a serious road traffic offence can give rise to both serious and less serious criminal recklessness, depending on the circumstances. Similarly, very serious offences under Art. 77 LSV may entail serious or less serious recklessness, as there is no indication in the CC that the very serious offence is limited to gross recklessness, even though “it is a factor to be taken into account in classifying the conduct”. It stresses that in defining less serious recklessness in Art. 142 PC, it establishes the “floor”, but not the “ceiling”.
The aforementioned Plenary Supreme Court Ruling 421/2020 (ECLI:ES:TS: 2020:2533) pointed to the possibility that a serious infringement of administrative traffic regulations could constitute less serious recklessness. This is a first approach that acts as a presumption, as the judge cannot be a “slave to administrative cataloguing”.
Supreme Court Ruling 2543/2022 of 22 June (ECLI:ES:TS:2022:2543) is particularly eloquent with regard to distinguishing between the different types of recklessness. The decision concludes that the key differentiating factor between serious and less serious recklessness is to be found in the “intensity or relevance” of the breach of the duty of care, with serious recklessness being that in which there is an intolerable disregard of the rules of care that causes a risk leading to a harmful result. In the less serious case, on the other hand, there is less demand “in the level of foreseeability and requirement of that duty of care”. The High Court insists on the need to take into account the conditions surrounding the specific case in order to assess the parameters that will be decisive in classifying the level of recklessness, such as the “level of requirement of observance” of the standard of care, the “scope of the infringement”, “the intensity or relevance of that infringement” or the risk resulting from the lack of diligence.
In conclusion, the Supreme Court insists on the need for the courts to individualise the circumstances of each case, as the same offence can give rise to serious, less serious or minor recklessness depending on the other elements in the equation. A very serious or serious breach of the standard will serve as an indication that there has been at least less serious recklessness. However, the degree of disregard of the diligence omitted must be taken into account to determine what type of recklessness we are dealing with.
The reference to the conducts under Art. 379 CC (provided that they were a determining factor in the harmful result) will imply the consideration of serious recklessness, but does not close the door to the classification as serious of conducts other than those in which a serious rule is infringed and there is a gross disregard for due diligence.
In the same sense, less serious recklessness may be found when a very serious or serious infringement of road regulations is committed which is a determining factor in the occurrence of the accident, but it may also be found in conduct involving a failure to observe the average duty of care and which does not fall under any of the administrative offences. However, the latter possibility is more remote, as the formula used in Art. 76 m) LSV according to which “negligent driving” is a serious offence covers such a wide range of cases that it is difficult to imagine acts that fall outside its scope.
3 CONCLUSIONS
Lawmakers have been shaping recklessness based on social demand, especially with regard to the offences of manslaughter or injury involving the reckless use of a motor vehicle or moped.
There is still no precise rule to avoid some level of discretion being left to the courts, which clearly affects legal certainty. Lawmakers use the terms “serious”, “less serious” and “serious recklessness” without giving them any actual substance.
The determination of serious recklessness poses fewer interpretative problems by establishing the concurrence of certain circumstance under Art. 379 CC that were “decisive” in the production of the result as an objective element. In this way, it has been possible to provide the person applying the rule with criteria that coexists with the court’s power of assessment. Despite the alleged objectivity clause, it is necessary to rule out the automatic application of the precept which would require one to consider ope legas recklessness as serious when any of the circumstances under Art. 379 CC are involved. It will always be necessary to establish a causal link between the seriousness of the breach of the duty of care and the result of manslaughter or injury.
Less serious recklessness has, from the outset, given rise to problems that have not been resolved despite the efforts first tackled by Organic Law 2/2019. The reform carried out under this law was unfortunate in its wording, as the disparity of the criteria used in its application led to significant legal uncertainty. The definition of less serious recklessness as "that which is not classified as serious" is void of content, and the reference to the serious infringement of traffic regulations when it this is a determining factor in the production of the act does not offer clarification, among other reasons, because it does not resolve what happens when the infringement is a very serious infringement. In this case, it would be consistent to consider the conduct, at the very least, as less serious recklessness, without being able to rule out its consideration as serious if this was decisive in the production of the result.
We are inclined to understand less serious recklessness as an independent and different figure from the previous minor and serious recklessness, an intermediate step that will need to be looked at in each specific case.
Organic Law 11/2022 sought to prevent judges from applying minor recklessness in the event of death or injury, for which it would have been sufficient to remove the final clause “once the judge or court has assessed the nature of the latter”. Instead, however, the precept was drafted in a cumbersome way, subordinating criminal law to administrative law, presuming serious or less serious recklessness (never minor) when the death or injury was due to a serious infringement of traffic regulations. The clear purpose of the new wording was to prevent victims from having to resort to civil proceedings, thus rendering ineffective the doctrine established in Plenary Supreme Court Ruling 421/2020, of 22 July (ECLI:ES:TS:2020:2533).
There is clearly room for improvement in the definition of recklessness addressed in the latest reform for the following reasons: the precepts are difficult to understand; it limits the freedom of the judge to assess minor recklessness when they consider it appropriate based on the circumstances of the case; it responds to social demands rather than the needs of criminal policy; the successive reforms on the matter (imperfect from a technical perspective) generate insecurity amongst legal operators and, finally, the need to link the degree of recklessness to a catalogue of offences which, in some cases, seem far removed from situations where a real risk to road safety is produced.
The understanding of the legal text could be improved lege ferenda by altering the expressions used. Thus, where it says “(...)serious infringements of traffic regulations (...)” it could be changed to “(...) a serious infringement of traffic regulations (...)”, avoiding the automatic referral to the serious administrative infringement and allowing the judge to assess the seriousness of the infringement and its determination for the accident according to the objective duty of care breached, the risk caused and the relationship with the production of the damage.
This amendment would avoid the automatic consideration that recklessness is less serious when we are faced with a serious traffic offence, especially if we take into account that the offence provided for in letter m) of Art. 76 LSV is so broad that it would classify the majority of conduct as less serious.
The amendments introduced by Art. 142 bis and 152 bis CC entailed a logical increase in the punishment of conduct with more serious results. However, we do not agree with the articles as they fail to specify the cases in which the penalty may be increased by one or two degrees. The deficient legislative technique applied will lead to disparate interpretations by the different courts, meaning it will be necessary to wait for the Supreme Court to establish case law in order to apply the precepts with legal certainty.
4 REFERENCES
Aguado López, S. (2019), La imprudencia menos grave: concepto y criterios para su correcta calificación jurídica tras las últimas reformas. La Ley Penal, nº 141, pp. 1-38.
Cuello Contreras, J. C. (2015). Curso de Derecho Penal Parte General (3ª ed.), Madrid, España: Tecnos.
Daunis Rodríguez, A. (2018). La imprudencia menos grave. Revista para el análisis del derecho, pp. 1-48.
Delgado Sancho, C. D. (2017). Los delitos imprudentes tras la reforma de la Ley Orgánica 1/2015, especial referencia al homicidio y las lesiones. Revista Aranzadi Doctrinal, nº 11.
De Vicente Martínez, R. (2009), Seguridad vial y Derecho penal. En especial el homicidio imprudente con vehículos a motor, Abogacía, nº 1.
De Vicente Martínez, R. (2017). La Reforma Penal de 2015 y su incidencia en los accidentes de circulación. Revista Aranzadi Doctrinal, nº5, pp.41-47.
Dictamen 2/2016 sobre Ley Orgánica 1/2015, de 30 de marzo, por la que se modifica el Código Penal. Los nuevos conceptos de imprudencia grave y menos grave de los arts. 142 y 152 y su incidencia en la utilización actualizada del Ministerio Fiscal para una efectiva protección penal de la seguridad vial, Madrid: Ministerio de Justicia. Fiscalía General del Estado.
Dictamen 1/2023 sobre la reforma operada por la Ley Orgánica 11/2022, de 13 de septiembre, de modificación del Código Penal en materia de imprudencia en la conducción de vehículos a motor o ciclomotor, Madrid: Ministerio de Justicia. Fiscalía General del Estado.
Frías Martínez, E. (2019). Novedades en el Código Penal, Ley Orgánica 2/19 de 1 de marzo. Imprudencia en la conducción de vehículos a motor o ciclomotores y sanción del abandono del lugar del accidente. Revista de Tráfico y Seguridad Vial, nº 237.
Galán Cáceres, J. C. (2017). La imprudencia menos grave luego de la LO 1/2015 de reforma del Código Penal. Las consecuencias en la responsabilidad sanitaria. Actividad de la Asociación de Fiscales, nº 25, pp. 1-58. https://www.fiscal.es/documents/20142/100242/Ponencia+Juan+Calixto+Gal%C3%A1n+C%C3%A1ceres.pdf/96c6f765-0a02-104e-6974-e353a681e295
Lanzarote Martínez, P. A. (2019). El nuevo delito de abandono del lugar del accidente y otras importantes novedades de la inminente reforma del Código Penal en materia de imprudencia. Diario La Ley, nº 9359, pp 2 ss,
Magro Servet, V. (2019), ¿Cómo se van a tramitar ahora las reclamaciones por accidente de tráfico en la vía penal?, La Ley, nº 9370, pp 4-7.
Magro Servet, V. (2022), La jurisprudencia del TS y la clarificación entre la imprudencia grave y menos grave, Revista de Derecho de la circulación, nº 112, pp. 2-7.
Trapero Barreales, M. (2019). Comentario urgente sobre la reforma penal vial y otros aspectos controvertidos. Revista Electrónica de Ciencia Penal y Criminología, nº 11
Ramón Ribas, E. (2015). Comentarios a la reforma penal de 2015, Pamplona, España: Aranzadi.
Rodríguez Lainz, J. L. (2019). Los nuevos delitos leves de imprudencia menos grave en materia de tráfico: aspectos sustantivos y procesales. Diario La Ley, nº 9392.
Rodríguez Lainz, J.L. (2019), Comentario de urgencia a la reforma de los delitos leves por imprudencia menos grave en materia de tráfico en la Ley Orgánica 11/2022. Diario La Ley, nº 10141.
Roig Torres, M. (2023). Los delitos de homicidio y lesiones causados por imprudencia con vehículo a motor o ciclomotor, Valencia, España: Tirant lo Blanch.
Rueda Martín, M. Á. (2009). La concreción del deber objetivo de cuidado en el desarrollo de la actividad médico-quirúrgica curativa. Revista para el análisis del Derecho. InDret, nº 5, pp.1-58.
5 ABBREVIATIONS AND ACRONYMS
BOE Official State Gazette.
CC Criminal Code
FGE State Prosecutor's Office.
FSCSV Road Safety Coordination Prosecutor
LO Organic Law.
LSV Road Safety Law.
PPO Public Prosecutor's Office
MP Prosecution Authorities
P Page
TS Supreme Court
i.e. for example