Failing to act can bind as much as acting — but only for those with a duty to act.
Spanish criminal law also punishes failing to act: pure omission (failing to rescue, failing to prevent an offence) and commission by omission (Art. 11), which equates to action the failure of a person in a position of guarantor who lets a result occur that they were bound to prevent.
In brief. Article 11 CP governs commission by omission: the result is attributed to a person under a legal duty to act (position of guarantor) who fails to prevent it, where the omission is equivalent to action. Alongside, pure omission — failure to rescue (Art. 195) or to prevent certain offences (Art. 450) — punishes the inaction itself. The position of guarantor is the central issue.
Not all inaction is punishable. Commission by omission (Art. 11) requires a specific legal duty to prevent the result — the position of guarantor — and an equivalence between the failure to prevent it and its active causation.
The position of guarantor has precise sources. It arises from a legal or contractual obligation, or from the perpetrator’s prior creation of a risk (interference). Outside these sources, there is no commission by omission.
Pure omission stands alone. Failure to rescue (Art. 195) or to prevent certain offences (Art. 450) punishes inaction regardless of any result, provided intervention was possible without risk to oneself.
| Concept | Article | Condition | Key point |
|---|---|---|---|
| Commission by omission | 11 | Position of guarantor | Equivalence to action |
| Legal / contractual duty | 11 a) | Specific obligation | Source of the duty |
| Interference | 11 b) | Risk created | Duty to neutralise |
| Failure to rescue | 195 | Manifest danger | No risk to oneself |
| Omission after accident | 195.3 | Accident caused | Aggravated sentence |
| Omission by carer | 196 | Health duty | Refusal of assistance |
| Failure to prevent offence | 450 | Preventable serious offence | Intervention possible |
| Failure to prosecute | 408 | Authority capacity | Duty to prosecute |
Indicative elements based on the Spanish Criminal Code. Liability depends on the existence of a duty to act and the equivalence of the omission to action. This overview does not replace a lawyer’s analysis.
The position of guarantor is the key to the case. Establishing — or refuting — a specific legal duty to act determines whether the inaction equates to action and thus grounds liability.
We dispute the duty and the ability to act. The absence of a source for the guarantor duty, the material impossibility of intervening or a risk to the omitter are all arguments to rule out the offence.
Carers, safety officers or directors bound by a guarantor duty.
People accused of failing to prevent a result or to rescue.
Officials targeted for a failure to prosecute or to intervene.
Relatives seeking to understand liability tied to an abstention.
Speak to a criminal lawyer
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