The funeral for the Dana victims, which took place on October 29, began with the reading, one by one, of the names of the deceased, to whom homage was paid. Whether these deaths constitute murder crimes is what the Court of First Instance and Education Number 3 of Catarroja is investigating, a Herculean task given the number of victims and the extent of what happened.
There are those who advise against placing too much hope in the criminal trial, doubting that it will end in a conviction and warning of the frustration that this can generate in families. I, however – and despite the difficulties to which I will refer – believe it is feasible that, with respect to some of the deaths, we could end up applying article 142 of the Penal Code, which punishes anyone who recklessly causes the death of another. To do this it will be necessary to demonstrate a series of elements that are interesting to know – even in very general terms – to understand whether or not criminal liability exists.
The first thing to note is that these were murders by omission, and the complexity of the case derives from this particularity. The deaths must be traced back to behaviors that did not consist of an action – the victims did not die because someone gave the order to open a dam – but rather in an omission, in what was not done. The investigation seems to pay particular attention to the delay in sending the alarm to the population, in particular in sending messages to mobile phones through the Es-Alert system, activated only at 8.11pm. and with the only indication to avoid travel. This statement is correct, since it is a system whose purpose is to protect the life and integrity of people, although, undoubtedly, there are other protective measures that could have been adopted.
Secondly, to be convicted of manslaughter by omission it is necessary to have the legal duty to act, to adopt the relevant protective measures. So far, the then Minister of Justice and the Interior – whose scope includes civil protection and emergencies – and the then Regional Secretary for Emergencies, are under investigation. that the resignation president of the Generalitat, Carlos Mazón, it is only a matter of time. In addition to what we learn from his telephone conversations and what he did that afternoon, he had the duty to direct and coordinate the action of his Government in the face of the foreseeable gravity of the situation and the possibility that, due to his lack of experience in emergencies and his short time in office, the councilor could be overwhelmed.
Third, it is necessary to demonstrate that the action was negligent, so the following question must be answered affirmatively: with the information available, was the risk to people’s lives foreseeable? This is how the instructor understood it, given the overwhelming number of danger signs she reported – weather forecasts, news stories appearing in the media, 112 calls, among many others – in a land with a history of deadly floods.
The fourth and final requirement of manslaughter by omission is the most complex. Homicide is a crime of result, which means that, in addition to the above, there must be an objective connection or connection between the deaths and the culpable conduct, which connection must be verified with respect to each of the deaths. How most courts have interpreted this connection may be the main obstacle to classifying some deaths as homicides.
This jurisprudence requires it to be demonstrated that, with almost absolute certainty, the death in question would have been avoided with correct behaviour, i.e. if the civil protection measures had been adopted in good time. There will be cases where this can be demonstrated without particular difficulty, such as, a priori, that of Miguel and Sara, husband and daughter of Toñi García, who told how they both left the house at 7.26pm. to get their car out of the garage, with the firm faith that, if there was danger, some warning would arrive. If the correct message had been sent before 7.26pm, it can be said with almost absolute certainty that Miguel and Sara would not have died.
However, regarding Dana’s other deaths, it will be impossible to make such categorical statements. In general, requiring – to punish a murder – that the death was avoided with correct behavior significantly reduces the chances of punishment. Let’s think, for example, of the doctor who, due to gross negligence, does not diagnose cancer and the patient dies. He could not be convicted of manslaughter, even if that type of cancer had a 60% chance of being cured, because it cannot be said with sufficient certainty that adequate diagnosis and treatment would have prevented death.
Due to the dissatisfaction that impunity generates in these cases, some criminal lawyers propose to rethink the link between the omission and death. In this sense, it has been proposed that it is not necessary to demonstrate that the correct behavior would have avoided death, but that it is sufficient to demonstrate that it would have reduced the risk of this outcome. There are even those who believe it is sufficient to verify that the protective measures that should have been adopted were aimed at minimizing the type of risk that ultimately caused the death, without resorting to hypothetical questions about what would have happened. With either approach, the chances of conviction in the Dana case would increase considerably.
Little by little, jurisprudence echoes these ideas. A well-known example is the ruling of the Second Section of the Supreme Court of 11 December 2017 (in the ruling Madrid Arena case). This resolution – which was voted against – condemned the doctor for manslaughter who had not treated a seriously injured young woman, mistakenly believing her to be dead. The severity of the injuries did not allow it to be said that the victim would have survived with adequate medical care, which is why the doctor was initially acquitted. However, the Supreme Court considered the finding that correct medical intervention would have reduced the risk of death sufficient and convicted him of manslaughter.
The process will be long and painful. Whatever happens, we trust that criminal justice will be able to offer the necessary explanations to the relatives of the deceased and the victims of the injuries also under investigation and will treat them with the humanity they deserve.
