Art 382 bis cp

what is a penal code

The author deals with the new wording of art. 382 bis CP included in the reform of the Penal Code regarding the existence of a new crime of escape or abandonment of the place of the accident to avoid the impunity that exists to date when the person responsible for a crime against road safety caused with his conduct the death of other people, and in the absence of a manifest and serious danger he could not be prosecuted for the crime of omission of the duty to help of art. 195 CP.

The text of the article develops the characteristics of this new crime, its punitive regime, the circumstances of its application, as well as its comparison with the omission of the duty to assist.

Among the most relevant issues that we have already highlighted in a recently published study (1) is the introduction of a new crime in the Penal Code, which is the object of the present analysis, called “crime of escape”, or abandonment of the place of the accident, to refer to those cases in which after a traffic accident caused by a driver, the latter leaves the place of the accident, instead of stopping to help the injured party. What was the reason for this typification?

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someone who could be injured or even deceased, the lack of solidarity with the victims, criminally relevant due to the direct involvement in the accident prior to the abandonment, and the legitimate expectations of pedestrians, cyclists or drivers of any motor vehicle or moped, to be attended in case of a traffic accident.”

The non-operability of the crime of omission of the duty to provide assistance, typified in arts. 195.1 and 195.3 PC, was evidenced by the enormous number of acquittals, mostly due to the difficulties in demonstrating the “helplessness” required by the crime.

In fact, the non-operability of the crime of omission of the duty to rescue in relation to traffic accidents basically lies in the difficulty of proving that the elements of the objective type were present: an omission of the duty to rescue a helpless person in manifest and serious danger, in need of protection in a clear and known way by the active subject and that there is no risk for this or a third party (suffering an injury or a disproportionate damage). These elements are amply collected by the jurisprudence of the Supreme Court, among others SSTS 140/2010, of February 23, 482/2012 of June 5 or STS 706/2012 of September 24.

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Organic Law 2/2019, of March 1st, amending Organic Law 10/1995, of November 23rd, of the Criminal Code, regarding imprudence in the driving of motor vehicles or mopeds and punishment of leaving the place of the accident.

This Organic Law responds to an important social demand, in view of the increase in accidents involving pedestrians and cyclists due to reckless driving of motor vehicles or mopeds, and is based on three axes:

It guarantees higher penalties for certain particularly serious conducts resulting in death, in particular when the driver of the motor vehicle or moped is driving under the influence of toxic drugs, narcotics, psychotropic substances or alcoholic beverages or speeding. It is expressly recognized that there are certain circumstances indicative of special negligence on the part of the driver and must be unequivocally considered in the criminal consequences as gross negligence.

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On March 2, 2019, Organic Law 2/2019, of March 1, amending Organic Law 10/1995, of November 23, 1995, of the Criminal Code, on reckless driving of motor vehicles or mopeds and punishment of leaving the scene of an accident, was published in the Official State Gazette (BOE). This introduces, as far as we are concerned, a new crime: the abandonment of the scene of the accident.

Article 382 bis reads: “1. The driver of a motor vehicle or moped who, outside the cases contemplated in Article 195, voluntarily and without risk to himself or others, leaves the scene of the accident after causing an accident in which one or more persons were killed or in which an injury constituting an offense of Article 152.2 was caused, shall be punished as the perpetrator of a crime of leaving the scene of the accident.

On June 30, 2017, the parliamentary procedure was initiated. In the presentation of the initiative, the reason for the proposal was appreciated. The court that judged the hit-and-run of a cyclist by a truck understood, as in many other similar cases, that the crime of omission of the duty to provide assistance did not apply when the person hit by a truck dies on the spot. The truck driver did not stop and fled the scene of the accident.

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