CRIME OF INJURY

The crime of injury is regulated in arts. 147 to 156 quinquies PC. These articles regulate different criminal modalities, which we will see below:

Basic type

Article 147 of the Penal Code regulates the basic type of the crime of injury, which punishes anyone who causes an injury to another that impairs his bodily integrity or his physical or mental health, provided that the injury requires, for its healing, medical or surgical treatment, in addition to an initial medical assistance. Included in this criminal modality, among many others, are injuries requiring stitches, rehabilitation, immobilization of body areas…

This conduct is punishable by imprisonment of 3 months to 3 years or a fine of 6 to 12 months.

Attenuated modalities

1. If the injury caused does not require, for its healing, medical or surgical treatment, it is punishable by a fine of 1 to 3 months.
2. If the conduct consists of hitting or mistreating by force, without causing injury, the penalty to be imposed is a fine of 1 to 2 months.

In both cases, the facts can only be prosecuted if there is a complaint from the injured party or his legal representative.

Aggravated modalities

1. In the first place, art. 148 of the Penal Code allows the imposition of a sentence of 2 to 5 years imprisonment, when the injury caused requires medical or surgical treatment, in addition, any of the following circumstances concur:
2. If the aggression involves the use of weapons or means especially dangerous to the life or health of the victim.
3. If there is overkill or malice aforethought.
4. If the victim is under 14 years of age or a person with a disability.
5. If the victim is or has been a wife or a woman bound by an analogous relationship of affectivity with the perpetrator.
6. If the victim is a particularly vulnerable person who lives with the perpetrator.
7. Secondly, the facts are punished with a higher penalty if the injury caused consists of the loss or uselessness of a major organ or limb, or of a sense, impotence, sterility, serious deformity, or a serious somatic or psychic illness (art. 149 of the Penal Code). The applicable penalty in this case is a prison sentence of 6 to 12 years.

The same penalty is imposed on anyone who causes genital mutilation. In addition, in this case, if the victim is a minor or disabled person, the penalty of special disqualification may be imposed for the exercise of parental authority, guardianship, conservatorship, guardianship or foster care for a period of 4 to 10 years.

1. Finally, Article 150 of the Penal Code punishes, with a prison sentence of 3 to 6 years, causing the loss, uselessness or deformity of a non-major organ or limb.

Injuries due to recklessness

The above precepts punish the intentional infliction of injuries, i.e., those cases in which the perpetrator acts with the knowledge and intent to injure the victim. However, art. 152 of the Penal Code also punishes the reckless causing of injuries in two cases:

• In the first place, the penalty for causing injury due to gross negligence varies according to the seriousness of the injury caused:

1. If they are injuries that require, for their healing, medical or surgical treatment, imprisonment of 3 to 6 months or a fine of 6 to 18 months.
2. In the case of injuries consisting of the loss or disablement of a major organ or limb, or of a sense, impotence, sterility, serious deformity, or serious somatic or mental illness, imprisonment of 1 to 3 years.
3. If the injuries entail the loss, uselessness or deformity of a non-major organ or limb, imprisonment from 6 months to 2 years.

In the latter two cases, the penalty may be imposed one degree higher if the act is notoriously serious, or even two degrees higher when the number of injured persons is very high.

Within the crime of serious negligence, there are specific cases that carry specific penalties:

1. If the crime is committed using a motor vehicle or moped, as occurs in traffic accidents, the judge must impose, in addition to the corresponding prison sentence, the penalty of deprivation of the right to drive motor vehicles and mopeds from 1 to 4 years. According to the Penal Code, there is serious negligence if the injuries are caused by driving under the influence of alcohol or other drugs, or exceeding the speed limits established in the regulations, in both cases provided that the limits established in the Penal Code are exceeded.

1. If the injuries are caused by the use of a firearm, in addition to the prison sentence, the penalty shall be deprivation of the right to carry or possess firearms for a period of 1 to 4 years.
2. If the injuries are committed due to professional negligence, as occurs in cases of medical negligence, the judge imposes, in addition to the prison sentence, the penalty of special disqualification from the exercise of the profession, trade or position for a period of 6 months to 4 years.

• On the other hand, the Penal Code punishes the causing of injuries due to less serious negligence, the penalty for which also varies according to the seriousness of the injury caused:

1. If they are subsumable injuries that require, for their healing, medical or surgical treatment, a fine of 1 to 2 months.
2. In the case of injuries involving the loss or disablement of a major organ or limb, or of a sense, impotence, sterility, serious deformity, or serious somatic or mental illness, or the loss, disablement or deformity of a non-major organ or limb, a fine of 3 to 12 months.

Within the crime of injury due to less serious negligence, there are specific cases that entail the imposition of additional penalties:

• If the crime is committed using a motor vehicle or moped, as occurs in traffic accidents, the judge must impose, in addition to the corresponding prison sentence, a penalty of deprivation of the right to drive motor vehicles and mopeds from 3 to 18 months. This includes cases in which the facts occur as a consequence of serious infractions of the rules of traffic, circulation of vehicles and road safety.
• If the injuries are caused by the use of a firearm, in addition to imprisonment, the penalty shall be deprivation of the right to carry or possess firearms for a period of 3 months to 1 year.

Injuries due to less serious negligence can only be prosecuted if there is a complaint from the injured party or his legal representative.

Participation in tumultuous brawl

Art. 154 of the Penal Code punishes persons who assault each other in a tumultuous manner using instruments that endanger the life or integrity of persons. The applicable penalty is imprisonment of 3 months to 1 year or a fine of 6 to 24 months.

In order to apply this crime, the Courts require the concurrence of the following elements (Supreme Court Ruling No. 755/2022 of September 14):

• That there is a plurality of people who quarrel among themselves with physical aggressions between several groups reciprocally confronted.
• The aggressors attack each other in a tumultuous manner, without being able to determine who was the aggressor of each one.
• That in that tumultuous quarrel there is someone (or several) who use means or instruments that endanger the life or integrity of persons, without it being necessary that all the intervening parties use them.

Consent of the injured party

The consent of the injured party is relevant when determining the liability of the perpetrator in the crimes described above, since it may result in the imposition of a lesser penalty or even exemption from criminal liability.

1. On the one hand, if the crimes described above are committed with the consent of the injured party, the penalty to be imposed must be reduced by one or two degrees (art. 156 of the Penal Code). The consent must be valid, free, conscious and express, not being valid the consent given by a minor or a person with disability.
2. On the other hand, the consent of the injured party exempts from criminal liability in cases of organ transplants, sterilizations and transsexual surgery performed by a physician. In this case, the consent must also be valid, free, conscious and express. Therefore, there is no consent when it has been obtained viciously, or by means of price or reward, or when the grantor is a minor or lacks the capacity to give it.