Os Limites Temporais da Negligência nos Crimes de Resultado

Abstract

In so-called «result crimes» the ascription qua negligence is especially open to time. Not only to the future but also and mainly to the past. This means that the responsibility may refer to a previous behavior more or less distant from the event that properly performs the punishable conduct described by law. Indeed, this reference to the past — the infringement of a onus (Obliegenheit) — defines the logical structure of criminal negligence. At the decisive moment, the agent is unable to accomplish his duty to avoid the disapproved result. But he himself is responsible for his inability, because he has not kept or not acquired the necessary skills to act in accordance with the legal norm. If the criminal liability is really based on facts — and not on character defects or unpleasant lifestyles — that reference to the past must respect some strict limits. Under this chronological horizon, the problem is how to know until when the judge can search backwards on the timeline a support point to jus- tify the punishment. This support point can not be established by the first free act nor by the behavior that leads immediately to the criminal result. Furthermore, an analogy with the intentional crimes does not offer an appropriate solution. The cor- rect answer says: the responsibility may achieve that moment in which the agent had a concrete (evident, clear, manifest) reason to conserve or obtain the capacity to avoid the forbidden result at the decisive instant.