A person who commits a crime must be held responsible for his or her actions if the crime is committed with a certain form of guilt, in an unjustified and illicit manner. Thus, criminal liability (i.e. being held responsible for an illegal behaviour that causes harm or damage to someone or something) is a legal consequence of committing criminal actions under certain conditions. But how can one identify these conditions, especially considering the fact that one’s responsibility does not eliminate liability nor reduces it? 

The aim of this article is to give an answer to this question from the perspective of criminal responsibility and the situation called actio libera in causa. 

This last notion is defined by a German doctrine as a situation in which the subject is self-inducing alcohol intoxication with the aim of committing an offence later, while being in a state of incapacity. Even so, he will remain liable for the offence due to his previous guilt in self-inducing the irresponsible state (Foster and Sule, 2010, p.356). The action libera in causa may be a basic principle in some continental legal systems, but it is in fact an exception from a generally accepted rule, according to which the subject’s intentional position is analysed at the very moment of the crime, and not earlier in time. This exceptional nature, however, determines a very strict interpretation of the notion. Consequently, this article will review and analyse doctrinal, legal and jurisprudential matters concerning the evolution of the relation between responsibility and liability connected to the actio libera in causa issue. Examples will be offered for a better understanding of this approach, along with the jurisdiction of Romania’s Supreme Court, and a comparative view of the actio libera in causa in different legal systems in Europe. 


1. Subjective liability with reference to the concept of responsibility 

Holding a person responsible for criminal actions also means finding a way of imputing these actions as illicit in a subjective manner. Criminal law has faced a shift in approach when the personal imputation of a crime was finally considered an element of the criminal action’s structure by abandoning the psychological theory of responsibility (Streteanu and Nițu, 2014, p.409). An important distinction was made between objective and subjective liability, as the objective way involved making a person criminally accountable for causing social harm without establishing guilt. It pertains tothe application of punishment for actions and their consequences in cases where the person being held accountable did not or could not have foreseen the consequences. However, objective liability is the manifestation of a rather primitive approach, since already the Code of Hammurabi separated the intentionally committed crimes from the culpable ones (Mirișan, 1996, p.19).  

Responsibility is defined as one’s capacity of understanding the value, the consequences of his or her actions, and determining – in an intentional way – the free will by which conscious choice is to be made between many possible circumstances. Contrary, irresponsibility implies a total lack of psychological capacity of will and understanding in a certain situation (Streteanu and Nițu, 2014, p.416). The Romanian Criminal Code includes causes which eliminate the possibility of imputing one’s criminal action, two of which are irresponsibility and complete intoxication with psychoactive substances, such as alcohol and drugs. 

According to a well-known scholarly work, the traditional approach towards the action libera in causa is roughly the same as the approach we can find in German law (Shute and Simester, 2002, p.147). The generally accepted solution, and in my opinion the most coherent one, is to strictly analyse the subject’s intentional position regarding the result of his or her actions referring to the moment or the point when the subject caused the irresponsible state in which the crime was committed. Actus reus non facit reum nisi mens sit rea is a Latin maxim, which means that the act is not culpable unless there it implies a guilty mind as well. On the other hand, the lack of voluntariness is not simply a ‘mens rea’ (meaning proof of fault and culpability) negating defence, but provides something more: the defence negates the ‘actus reus’ (meaning the external behaviour or conduct which is prohibited by the criminal law) required for the crime (Shute and Simester, 2002, p.148). 


2. The legal frame of reference in Romania’s legislation on the matter

Nevertheless, Romania’s current legislation denies this perspective, since Article 28 of the Criminal Code (which shows one of the causes that eliminates imputation), according to various voices of legal literature, only covers the situations in which the subject did not self-induce the irresponsible state (Streteanu and Nițu, 2014, p.416). This is an affirmation requiring an observation, as it is uncertain what will be the subject’s fate if the irresponsible state and the actio libera in causa committed were not intentionally induced, but only culpable. What will be the solution if the person should have or could have predicted the consequences of his or her actions, but culpably did not? Indeed, this is a gap of the mentioned legislation, which should be de lege ferenda, covered (here, the Latin maxim is a concept proposing a legislative improvement, what the law ought to be, opposed to what the law is at the present moment – a view to the future law). That is because the legality principle, which prevails in criminal law does not allow the judge to extend the meaning of law beyond its legal interpretation, and, in our matter, only pertains to intentionally induced states.  

In order to give the issue a clearer and more practical view, an example shall be provided. A wants to kill B, but he is afraid that he might not have the courage to fulfil the deed. In order to overcome his scruples he gets intoxicated and then – in a state of incapacity – carries out the manslaughter. As A’s intention covered getting into an irresponsible state, as well as killing B, both actions were linked to one another by his intent. Furthermore, he had sufficient capacity of guilt at the moment when he initiatedthe chain of events (Foster and Sule, 2010, p.356). Thus, he can be considered liable for manslaughter in connection with the action libera in causa. This is the first hypothesis tackled in which the intention covers the whole chain of causalities. 

Thus, the element of guilt, which is missing at the time of the commission of the offense, is hypothetically brought forward when the offender intentionally got into alcohol intoxication. In other words, he must show ‘double intent’ or as it is called in the German legal system, ‘Doppler Vorsatz’. 

According to Foster and Sule (2010), the commission of the whole crime is actually commenced at this first point (getting intoxicated). I cannot agree with this argument largely because in my view, this affirmation implies that some actions, which can barely be considered preparatory acts for the following crime, are in fact acts of commencement. This is a perspective offering the possibility for deeper consideration, since some general elements of a crime’s structure (in our case, preparatory acts) are not generally punished, but only in some exceptional circumstances where the law clearly prescribes so. 


3. Questionable court cases 

The previous demonstration reflects on a rather simple problem: the intention that covers the whole chain of causalities. The delicate and problematic issue is basically the situation pertaining to a person culpably self-inducing the irresponsible state. In order to depict the problems with this perspective of the action libera in causa, a Romanian author refers to two cases of the Supreme Court (Mirișan, 1996, p.102).In one of them, the judges decided that the person is not irresponsible by the interpretation of Article 28, even if – at the moment of the crime – he was completely incapable due to the complete self-induced inebriation. In fact, the subject was suffering from a psychological disease, which, combined with alcohol, resulted in his irresponsible state of mind. In the other one, a person suffering froma severe and complex disease called encephalitis with a strong potential of epilepsy has consumed a certain amount of alcohol and, in that background, lost his sense of mind and committed a crime. 

The problem with both cases is the lack of analysis concerning the internal and subjective position of the person at the moment of the consumption of the substances. The value of the person’s culpable attitude is not enhanced, but a comfortable solution is given as simply ‘not irresponsible’ in the light of the interpretation of Article 28 from the Romanian Criminal Code, because it is considered to be a ‘complete voluntary drunkenness’,while the voluntary aspect in this case is extremely doubtful. 

Examining this last case, we can see that encephalitis is a severe medical condition that involves a problem with one’s brain–its neurological symptoms include intellectual disability, nervousness, mental confusion and sometimes convulsions. With a strong potential of epilepsy, this condition is basically worse and can affect all of the body’s functions, including the cognitive and visual ones and also the behaviour, in a severe way. Confronted with these facts, can anyone argue that the ‘drunkenness’ is voluntary? 

There can certainly be found hypothesis where the subject has no guilt at all, being thus very far from the intention which Article 28 speaks about. The irresponsibility is caused first of all by the person’s severe medical condition, which may or may not have been worsened by the alcohol consumption. Also, if there was guilt on the person’s behalf, the law instance does not analyse the person’s possibilities and real determination regarding the understanding of those unlawful consequences following his or her actions of consuming certain substances, such as alcohol.  

This might be disastrous for the hypothesis of the action libera in causa, because it comes to the application of an absolute and indisputable presumption of guilt, determined merely by a person consuming certain psychoactive substances in a givenamount. Such a presumption cannot be accepted under any circumstances in a legal system directed by constitutional (criminal) principles, such as the legality principle and the presumption of innocence (Article 23 of the Romanian Constitution and Article 6 of the Human Rights Act). Therefore, these kinds of solutions, which ignore the person’s previous form of guilt in the action libera in causa situations, represent a tendency to open a path for objective liability in criminal law, which is absolutely unacceptable. 


4. A brief comparative law perspective

The issue of a person’s criminal liability for an offence committed as a result of self-induced alcohol intoxication (or another state of irresponsibility) is tackled in most European legal systems. To provide an instance, the Swedish Criminal Code states that if the subject could have avoided the irresponsible state, and thus committing the offence, he will not benefit from the legal causes of impunity. The actio libera in causa is also regulated by the Rome Statue of the International Criminal Court, which only excludes the possibility of benefiting from exoneration if the person voluntarily intoxicated himself. 

Thus, the Statue is trying to prevent the dishonesty of some individuals by creating an incapacity state to cover the commission of certain crimes. Finally, in the German criminal legal system, the actio libera in causa was lifted upto a higher position, namely, it became a principle of law. This is actually the achievement of the German’s doctrine and jurisprudence, and in this system the actio libera in causa can be committed both intentionally (corresponding to Article 77 of the Romanian Criminal Code) and culpably. This last aspect, involving one’s culpable attitude, is not regulated in Romanian legislation and represents a serious gap and problem for those commenting on the actio libera in causa.



To conclude, I strongly believe that there is a need for the legislator’s intervention in covering the gap in the Romanian Criminal Code concerning the many possible situations of the actio libera in causa and especially the completely voluntary self-induced irresponsible state, where the person did not intend to do so, but is culpable for inducing this state or for committing a resulting offence. There is a significant need for a legal basis of analysis and decision on this matter in the Romanian legal system, which could be solved, in my opinion, by finding inspiration in the German legal approach of the actio libera in causa matter. 



By Maria Neștiut


This article was originally published in issue 4.2 of the magazine, which can be accessed here.

This article has been awarded the 2nd prize at the ELSA Essay Competition on Criminal Law (2016)


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