Causation in Offenses Committed by Omission

Keywords: omission; causation; duty to act; preventability; negligence; professional liability; proof.

1. Omission as a basis for individual criminal liability

The most difficult question concerning a criminal omission is not why the person failed to act, but why the resulting harm can be attributed to that person as something they caused. A boundary separates moral condemnation of passivity from criminal liability for death, bodily injury, or property damage. That boundary cannot be crossed merely by finding that timely intervention would have been desirable. A specific duty to act, a genuine opportunity to discharge it, a causal connection, and the requisite form of culpability must be established.

The Criminal Code recognizes omission as a form of conduct, but contains no general formula converting every unfulfilled duty into causation of all subsequent harm. Applying Articles 9(1) and 11 and the relevant offense in the Special Part requires each prerequisite to be examined separately. The principle of individual responsibility under Article 35 is particularly important: membership in a medical team, an enterprise, or an administrative body does not replace proof of the individual's conduct. ^[1]

The central thesis of this study is that causation by omission must be examined on three distinct levels: the factual preventability of the particular result; whether preventing that result fell within the person's legal duty; and the culpable failure to discharge that duty. Conflating these levels risks turning an organizational failure into criminal liability without fault.

2. A legally relevant omission and causation of a result

Offenses penalizing the failure to discharge a particular duty must be distinguished from result-based offenses committed by omission. For the former, the statute may not require additional harm to occur. For the latter, the result is an element of the offense, and the prosecution must establish its connection to the particular omission. Failure to render assistance and causing death by breaching a special duty of care are not interchangeable legal classifications. ^[1]

A person may have breached an occupational rule without that breach causing the victim's death. The reverse is also possible: an omission may have causal significance, while evidence of the requisite culpability is lacking. Thus, the conclusion that “there was a breach and a death occurred” is an initial factual finding, not a completed criminal-law syllogism.

For a result-based offense, the result itself must also be specified. It is insufficient to discuss whether the victim would eventually have died from an underlying illness. What matters is whether the particular death, occurring at the established time and through the established mechanism, was preventable. A preexisting vulnerability does not deprive life and health of protection under criminal law.

3. Source and scope of the duty to act

The criminal-law analysis begins by asking who was required to perform a particular act, on what legal basis, and during what period. The source may be a statutory provision, a legally regulated professional function, or a specific assignment within a legally recognized relationship. A contract or job description may specify the duty, but cannot itself create a new criminal offense. Where an offense incorporates requirements from other rules, the applicable rule must be identified rather than referring abstractly to “good practice.” ^[1]

The concept of a “guarantor” is useful as a theoretical description of a person charged with protecting a particular legally protected interest or controlling a source of danger. It is not, however, an independent statutory basis for conviction. It must be explained why that particular person bore the duty, what means were available, and whether the danger fell within the substantive scope of the assigned function.

Prior creation of a danger may also be relevant to subsequent duties. It does not entail unlimited responsibility for every later adverse development. The legal basis for the required intervention, its connection to the particular risk created, and the factual possibility of controlling that risk must be established. The opposite approach would turn the preceding causal history into a presumption of guilt.

When shifts change or work is handed over, it is especially important to distinguish duties to act personally, to notify someone, and to arrange action by another competent person. Transmitting information does not automatically discharge an already existing duty to intervene immediately. Conversely, a lack of managerial authority cannot be ignored where the prosecution attributes an organizational failure to an ordinary employee.

4. Actual ability and the time window for intervention

The required action must have been practically possible. Available resources, response time, qualifications, access to the relevant object, and the ability to obtain assistance all matter. The requirement is not confined to physical ability: a person lacking the necessary authority may be required to raise an alarm but not authorized to carry out a particular specialized activity independently.

The assessment must be situated at the time when intervention was required. Hindsight about the harm that occurred does not establish that the person possessed the same information beforehand. Objective preventability concerns the state of the process; culpability concerns what the person knew or was obliged and able to ascertain at that time. These questions are connected, but they are not identical.

If the result was already irreversible before the duty arose, the subsequent failure cannot have caused it. The failure might constitute another offense or a disciplinary breach, but the seriousness of the blameworthy conduct cannot restore a causal connection to an already irreversible result.

5. Counterfactual assessment and its limits

For an act, the usual inquiry is how the conduct changed reality. For an omission, it is necessary to reconstruct what would have happened had the required action been performed in time. This conditional inquiry is not an arbitrary hypothesis: it must rest on established facts and reliable specialized knowledge. The hypothetical addition is not the ideal behavior of an omniscient professional, but the specific lawful action that was required and possible.

In practice, three questions should be asked in sequence. What precise action was omitted? What was the latest point at which it could have affected the process? What effect would it have had on the particular result under the proven factual conditions? An answer such as “intervention probably would have helped” leaves both the mechanism and the degree of preventability unspecified.

Criminal proceedings do not permit a conviction based on assumptions. Article 303 of the Criminal Procedure Code requires the charge to be established beyond doubt, while Article 103 does not require the accused to prove innocence. A statistical reduction in risk therefore cannot, by itself, replace proof that the particular omission caused the result forming an element of the offense. ^[2]

This does not require mathematical certainty, which is unattainable in empirical science. The distinction is between a reasoned inference from the evidence as a whole and unresolved causal uncertainty. Increased-risk theory may guide the inquiry, but must not operate as an independent presumption of causation. Likewise, the loss of a chance of a better outcome is not automatically equivalent to causing death under the Criminal Code.

6. Multiple omissions and intervention by third parties

Where several persons act or fail to act in succession, the causal analysis must remain individualized. A later professional error does not necessarily break the connection between an earlier omission and the harm. If the initial breach set a process in motion and the subsequent breach aggravated it, several courses of conduct may have causal significance.

An illustration is Judgment No. 63 of July 30, 2020, in criminal case No. 175/2020 of the Supreme Court of Cassation, Second Criminal Division. The court examined successive omissions in obstetric and gynecological care and did not accept that another doctor's subsequent conduct or transfer to another medical facility necessarily severed the initial causal connection. At the same time, it distinguished breaches connected with the result from other alleged breaches that did not justify liability for that result. ^[3]

This approach does not create collective guilt on the part of the team. Where several persons negligently cause harm, each person's responsibility must be examined independently; participation under Article 20 of the Criminal Code presupposes an intentional offense. It is insufficient that everyone worked in the same organization or could collectively have contributed to a better outcome. ^[1]

The victim's conduct is not a universal ground for excluding causation either. It must be established whether that conduct created an independent process, whether it was a foreseeable element of the initial danger, and whether the person's duty included protection against that very reaction. Civil-law contributory fault cannot be mechanically transposed into a percentage reduction of criminal liability.

7. Expert evidence and the limits of specialized knowledge

The expert examines the technical, medical, or other specialized mechanism. The court decides whether the elements of the criminal offense are satisfied. Questions such as “is the defendant guilty?” or “has an offense been committed?” cannot be delegated to an expert. The opinion must be examined and assessed alongside the other evidence. ^[2]

A properly formulated expert assignment should address alternative mechanisms producing the harm, the time at which the result became irreversible, the effect of the specific omitted action, and the data distinguishing probability from an established causal mechanism. Where experts disagree, the factual premises of that disagreement must be clarified rather than simply preferring the opinion bearing more signatures.

Missing documentation may complicate proof but does not justify reversing the burden of proof. An incomplete register, a missing observation, or an unprepared record must be evaluated in relation to the charge. These omissions do not automatically prove either the particular physiological mechanism or intent.

8. Hypothetical and sequence of legal assessment

The following is an analytical example, not a description of an actual case. An employee on duty is required to activate an emergency shutdown upon a particular signal. The employee fails to do so, and serious injury occurs. Establishing the signal, the omission, and the injury is insufficient for liability. Evidence is required concerning whether the system worked, whether timely shutdown could have prevented the particular injury, and whether the employee could have recognized the signal.

If automatic protection had been irreversibly damaged before the shift and manual shutdown could not have affected the outcome, breach of the instruction alone does not prove causation through that omission. If, however, manual shutdown was operational and timely activation would have interrupted the dangerous process, knowledge, the required standard of care, and the particular form of culpability remain to be assessed.

Where there is evidence that the employee had not been trained, the employee's abilities and duties must be distinguished from a possible breach of the manager's duties. The manager's organizational fault does not absorb the employee's individual responsibility; nor may the employee be used as a substitute for managerial failures that have not been investigated.

9. Conclusion

Causation by omission is not a criminal-law assumption inferred from an unfulfilled duty. It is an independent element requiring proof that a specifically identified, required, and possible action would have prevented the particular result. The legal duty defines the scope of responsibility, while culpability determines whether the established causation is punishable.

For practice, two symmetrical errors must be avoided: convicting for every harm following a professional omission, and excluding causation whenever other factors were also at work. A lawful conclusion lies in the individualized connection between the duty, the time for intervention, the factual mechanism, and the culpable attitude toward the result.

This article is a general discussion of legal theory and practice. A specific matter requires consideration of the law applicable at the relevant time and Article 2 of the Criminal Code. Hypotheticals serve legal analysis only and do not describe actual cases.