Consideraciones generales sobre la responsabilidad penal por la no evitación imprudente del delito doloso ajeno: dos «residuos»

The article takes as a point of departure the fact that the criminal liability for not preventing others from committing intentional criminal offenses can be explained as a reaction to the evidentiary difficulties raised by crimes committed within organized structures. From that standpoint, some critical concerns raised in relation to the general clause regulating liability for omissions in the Spanish Penal Code (art. 11) are firstly analyzed. Secondly, the paper examines two forms of negligent omissions that, as a result of the aforementioned general clause (art. 11), the rules regulating principal and accessory participation in crimes (arts. 28 and 29) and the exceptional criminalization of negligent behavior (art. 12), turn out not to be punishable. Finally, the collateral consequences of the criminalization of (even negligent) omissions in this field are analyzed: the possible loss of a witness for the prosecution in relation to the offense committed by another person and the restriction of the principle of self-responsibility, especially serious in «failure to protect» cases.