The Supreme one establishes that, in cases of mutual aggression of pair, the man always commits crime of sort violence.
The Room of the Penitentiary of the Supreme Court has adopted an Agreement of Plenary session that it establishes that in the cases of reciprocal aggressions man and woman in pair or ex- pair are done of sort violence, and domestic relative or, respectively. The Supreme Court also declares that the violence acts that exert the man on the woman on the occasion of an affective relation of pair constitute acts of being able and superiority in front of her regardless of which is the motivation or the intentionality. And that any aggression of a man to a woman in the relation of pair or ex- pair is done constituent of sort violence.
The sentence, STS 677/2018 of 20 of December, revokes the acquittal of both member of the pair by a mutual aggression at the expense of a discussion in a public site.
The Supreme one also declares that the violence acts that exert the man on the woman on the occasion of an affective relation of pair constitute acts of being able and superiority in front of her regardless of which is the motivation or the intentionality.
Acquitted by the Hearing
In tactical mission, the Provincial Hearing of Saragossa had confirmed the acquittal, that also a court decided the penitentiary of this locality, of a pair in which man and woman had attacked themselves mutually.
The Fiscal Ministry accused to them of the battering crimes, anticipated and punished in the article 153 p
°1 and in article 153,2 of the CP. Despite which, it was acquited to them to understand that when not being credited to the intention of domination or masculinity of the man to the woman in their aggression the facts were not constituent of act of violence of sort of the Art. 153,1 CP in the attack of him to her, nor of the Art. 153,2 CP of the woman towards the man, being immersed in the Art. 147,2 CP of battering without injury that previous denunciation demands, reason why when not existing this one could not be condemned to any of them.
The proven facts relate that in a while certain a discussion among them began motivated not to put itself in agreement at the moment who were to march to house, during which they reciprocally attacked, so that the prosecuted one offered to him a punch to him in the face and it gave tortazo him with the hand opened in the face, receiving he a kick offered by her, without the production of injuries consists. Neither it denounces to the other.
Any aggression of the man is chauvinistic violence
Nevertheless, the Plenary session of the Supreme Court in sentence of which Magistrate Vicente Magro Servet has been rapporteur considers that
1. - Any aggression of a man to a woman in the relation of pair or ex- pair is done constituent of sort violence.
2. - It is understood that the violence acts that exert the man on the woman on the occasion of an affective relation of pair constitute acts of being able and superiority in front of her regardless of which is the motivation or the intentionality.
3. - The Hearing had considered that in the reciprocal aggression man and woman is only slight crime, but the TS indicates that it does not exist base nor legal argument to degrade to a crime weighs to a mutual aggression between man and woman who are even or ex- pair, since it is not precise to credit to a specific chauvinistic intention because when the man attacks the woman or is by itself an act of violence of sort with connotations of being able and masculinity.
4. - In the fact to attack the even one it will only have to reflect a blow or battering without causing injury respectively to integrate crime of violence of sort and familiar violence without majors probatory additions.
5. - It could be valued in each case if there were right of self-defense in his aggressive answer, but cannot dictate an absolving sentence if it is stated the mutual aggression.
6. - It is considered that when the legislator approved the types who sanction the sort violence in no way wanted to add an exigency of intentional valuation to demand that a special intention of domination of the man tried on on the woman so that the fact was considered as sort violence. If there is aggression of the man on the woman it is sort violence, and if there is mutual aggression is not precise to prove a behavior of domination of the man on the woman. Proven the aggression the fact is constituent of sort violence and if there is mutual aggression, as in this case, both must be condemned by violence of sort to the man and relative to the woman.
For this reason, the Supreme Court revokes the acquittal which he decided the Hearing and he condemns to the man to the pain of 6 months of prison with order of distance and its accessories and to the woman to a pain of 3 months with accessory equals and distance.
Particular vote of four magistrates
The sentence includes a particular vote that subscribes 4 of the 14 magistrates of the Plenary session, that it rejects that it condemns by the crime of article 153,1 the defendant (sort violence), and considers that man and woman had to be condemned both as authors of a crime of article 153,2, and before the little gravity of the facts, to be applied to the pain inferior to them in a degree that allows article 153.4.
The particular vote, written up by magistrate Miguel Colmenero, and to that their companions Alberto Jorge Barreiro, Juan Ram³n Berdugo and Carmen Lamela have adhered, indicates that the proven facts do not contain any element that allows to understand that the aggression of the man to the woman took place within the framework of a relation of domination, humiliation or subordination of this last one with respect to that one.
On the contrary, of the factual story it is not difficult to deduce that the mutual aggressions took place in an equality level, in which two human beings, regardless of the personal and social rolls that each can attribute the other, face until arriving at the physical aggression, having as he bases a discrepancy on an insignificant aspect of his life, discrepancy that could have produced and have tried between any other two people, without implying initial superiority of none on the other. In any case, that one context is not declared proven in the opposed sentence, indicates the vote.
In those conditions, the discrepant magistrates indicate that the application of article 153,1 to the defendant man is automatic and mechanical, and implies a presumption in his against regarding the concurrence of the objective element that, according to the doctrine of the Constitutional Court, he justifies that the sanction is different and more serious than the one than would correspond to the other member of the pair that executes facts of identical penal relevance. To start off of the base of which the element concurs that justifies the unequal treatment is in opposition to the innocence presumption. And to cause that the defendant responds, of automatic and mechanical way, of a characteristic of the conduct, necessary to justify the treatment inequality, who has not tried on in the case, in addition, harms the culpability principle.
The magistrates of the particular vote emphasize that the treated matter is a debatable question in which in own Supreme and the other criminal courts they have maintained two different legal tendencies (the one of the majority sentence and the one of the vote). But they understand that with the decision made in the sentence of the Plenary session an opportunity to interpret and to apply the protection to the woman against the sort violence is had lost , whose convenience does not seem to be discussed, within its authentic limits, avoiding to extend the unequal treatment to the man and the woman, content in article 153 of the Penal Code, of an excessive and mechanical or automatic form to all the cases in which, in the scope of the relations of pair, present or passed, the man mistreats of work the woman.
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