The Title II of the Book I of the Spanish Criminal Code (CP) is entitled “Of the persons criminally liable of the crimes”. In it, as we can deduce from its name, are established those who can be regarded criminally liable for the commission of a crime, this, likewise, will suppose their civil liability (art. 116 CP).
– The criminally liable of the crimes:
Those who can be considered as criminally liable for the commission of some of the crimes typifies in the CP, are gathered in the art. 27: “The authors and accomplices are criminally liable of the crimes.”
Afterwards, in the articles 28 and 29, it is offered a short definition of what is understood for author and accomplice, respectively: According to the article 28: “The authors are either who commit the fact on their own, jointly, or by means of another whom they use as an instrument”. And subsequently, the same article adds another two kinds more of authors: “a) Those who directly induce other or others to execute it” and “b) Those who cooperate in its execution with an act without which it would not have been carried out”.
On the other hand, the art. 29 CP defines the accomplices as: “The accomplices are those who, not being in the above article, cooperate in the execution of the fact with previous or simultaneous acts”.
Let us see with more detail what we have to understand for authors and accomplices. Although the article 28 comprises under the concept of author, the instigators and the necessary co-operators, we should understand that it is with regard to the application of the punishment, for the article 63 of the CP only distinguishes two sorts, the authors and the accomplices, imposing to the latter “the inferior punishment in degree to that fixed by the law to the authors of the crime”. Let us make use of an example, the author of a burglary with forced entry is punished with imprisonment from one to three years (art. 240 CP), now we have to take as a reference the minimum punishment, which is one year of imprisonment, to this year of imprisonment we have to subtract its half, this is six months. The inferior punishment in degree in this case would oscillate between six months and one year (minus one day).
But there exist great differences between an author, an instigator and a necessary co-operator. An author is who execute the typified fact, either on his own, jointly with others, or by means of another whom he uses as a instrument (art. 28 CP), but always with the absolute domain of the action characteristic of the authorship.
On the contrary, the instigator is who willingly makes to emerge in other person (instigated) the idea of committing a crime, for this, the instigation has to have enough intensity in order to be penally relevant, besides the instigation must refer to the commission of a concrete crime upon determined person, something which distinguishes it from the provocation of the art. 18 CP. In the Spanish Supreme Court´s sentence (STS) 1337/2002, are mentioned the characteristic elements of the instigation: “a) The influence of the instigator has to be applied upon someone who previously is not decided to commit the offense; b) The instigation has to be intense and proper, in a way in which it enough motivates the instigated to the carry out the desired fact; c) The instigation has to be aimed to a determined executor and to the commission of a concrete crime; d) The instigated has to commit the crime to which he was instigated and e) The instigator has to act with the double intention of provoking the criminal decision and of assuring the commission of the crime”.
On the other hand, the necessary co-operator is distinguished from the coauthor, in the fact that the coauthor has the absolute dominion of the action, being a functional coauthorship if there exists a division of functions between those who intervene in the commission of the crime, while the necessary co-operator executes the indispensable act for the commission of the crime, his participation has a subordinate character with respect to that of the author of the crime. Or how it is remembered to us by the STS 3096/2022: “there exists necessary cooperation when there is a collaboration with the direct executor contributing with a behavior without which the crime would have not been committed, when there is a collaboration by contributing something which is not easy to obtain in another way, or when who collaborates can impede the commission of the crime.” Besides, this sentence adds others elements to define the necessary co-operator, he has to act with malice, being enough the eventual malice y there must exist an arrangement to collaborate. Let us make use of another extract of the same sentence: “It is precise that the subject knows the criminal purpose of the author and that his will is aimed to contribute with his own acts in a conscious way to the realization of it. In the STS 1531/2002, is affirmed that it is enough with an eventual malice by the part of the necessary co-operator regarding the result which may follow the willful action that the author executes, to whose successfulness the contributor aims his contribution. On the other hand, it is necessary an arrangement to collaborate, which can be both previous and contemporary, and it can be either expressly or tacitly adopted.
Thereby, when who intervene is a cooperator, the eventual malice must be manifested in the knowledge, on the one hand, of the probable intention of the main author and, besides, on the other hand, in the probable consequences of the contribution with respect to the execution by the main author of a minimally determined fact. Therefore, the cooperator must know that exists the concrete danger of the realization of the crime by the part of the main author and that his contribution, reflected in the level of the increasing of the risk, will determine the imputation as necessary co-operator or, in its inferior state as accomplice ( STS 503/2008)”.
And the accomplice, like the necessary co-operator, does not have the domain upon the fact, what distinguishes both figures is the relevance of the contribution. He makes a facilitating action, but it is not indispensable for the commission of the crime, unlike what happens with the necessary co-operator. Let us see this interesting extract from the Spanish Supreme Court´s resolution 10665/2022: “the accomplice…is an assistant of the author, who lacks the domain of the fact, but who contributes to the production of the criminal phenomena through employing before or simultaneously physical or psychic means, aimed to the realization of the project, taking part in the common purpose through his willful contribution, materialized in acts (or omissions) of secondary character. He makes a facilitating contribution, not necessary for the development of the iter criminis, but which rises the risk of the production of the result. It is a contribution not essential, accidental and no determinant, of second character or inferior.”
Therefore, the author or authors are who have the absolute domain of the fact, they are who directly execute the crime. The instigator is who make to arise the malice for the commission of the crime upon the instigated. The necessary co-operator, is who contributes with an essential element to the crime, without which the crime would have never been committed. And the accomplice, is who participates in the crime in an accessory way, who has a secondary contribution, not essential, without which the crime would have been committed too, but which has helped to its commission.
Another of the ways envisaged in the CP to participate in the commission of a crime, is like accessory after the fact, defined in the art. 451 CP as who: “with the knowledge of the commission of a crime and without having intervened in it as author or accomplice, intervenes after its execution, in some of the following ways:
1º Helping the authors or accomplices in order to allow them to take advantage of the benefit, product or price of the crime, without the purpose of enriching himself.
2º Hiding, altering or making useless the body, effects or the instruments of a crime, for hindering their discovery.
3º Helping the alleged liable of the crime to elude the investigation of the authority or its agents, or to avoid their search and arrest, always that concurs some of the following circumstances:
a) That the covered fact is regarded as treason, homicide of the King or the Queen or any of their ascendants or descendants, of the Queen Consort or the Queen´s consort, of the Regent or some member of the Regency, or the Prince or Princess of Asturias, genocide, crime against the humanity, crime against the persons and protected goods in case of armed conflict, rebellion, terrorism, homicide, piracy, human trafficking or illegal traffic of human organs.
b) That the contributor has acted with abuse of public functions. In this case, it will be imposed besides the punishment of imprisonment, the special disqualification for public employment or public office for a term from two years to four if the covered crime is a less serious offence, and the absolute disqualification for a term from six to twelve years if it is a serious offence.”
Thus, the accessory after the fact unlike the coauthor, the necessary co-operator or the accomplice, does not facilitate or take part in the commission of the crime, but helps the authors or accomplices to benefit of the effects derived from the crime, or to elude the action of the justice.
– The special case of the crimes committed through mechanic means or media:
In the case that the crime or crimes, are committed through mechanic means or media, the art. 30 of the CP has established an authentic exemption, neither the accomplices nor who has personally or in reality favored the commission of the crime will be criminally liable. It will be the authors of the art. 28 CP who will only have criminal liability (authors, instigators and necessary co-operators), but according to the staged, exclusive and subsidiary way established in the second section of the art. 30 CP.
And for the case that neither of the persons comprehended in the second section of the art. 30 may be punished, the third section of this art. 30 envisages that, the criminal proceedings will aim against the persons mentioned in the art. 31 CP, in other words, against either the manager in fact or by right of a legal entity, or who act in behalf or as legal or willful representative of other, “although the conditions, qualities or relations which the corresponding crime requires do not concur on him for being an active subject of it, if such circumstances are met by the entity or person in whose behalf or representation acts”, as is envisaged by the own art. 31 CP.
At this juncture, we have to clarify various questions. Firstly, what we have to understand by the manager in fact or by right of a legal entity, for this we can make use of the definition of both given by the Madrid Provincia Court´s resolution 4664/2022: “The manager by right is who has been appointed according to the corresponding corporate law, being reflected like such publicly and in all the registers in all the concerning corporate activity (STS of 19 April 2012). Regarding the concept of manager in fact, the STS of 26 January, considers as such “who, without having the condition of manager of the entity, exercises powers of decision in the entity and concreting in him the power of a manager by right.” In other words, he is the person who gives the orders in the legal entity.” We can make use likewise of the definition of manager in fact given by the art. 236.3 of the Spanish Corporate Law: “The liability of the managers is extended too, to the manager in fact. To such end, it will be regarded as manager in fact either the person who in the reality of the traffic carry out without title, with a null or extinguished title, or with another title, the proper functions of manager, like, in its case, that who gives instructions to the managers of the legal entity.«
Secondly, what we can understand for whom acts on behalf or legal or willful representative of other, those will be either the legal representatives of a minor or handicapped (art.267 of the Spanish Civil Code), or who act with power of representation or with the consent of the represented.
And lastly, there exists a special procedure in the Spanish Criminal Procedure Act (LECrim) for the crimes committed by means of the press, the engraving or another mechanic means of publication (art. 816 – art. 823 bis LECrim). It is a special procedure, although not wholly autonomous for it must be completed with the norms of the Abbreviated Procedure, which is characterized for the possibility of adoption of preventive measures by the Examining Magistrate at the beginning of the procedure, either for impeding or hindering the commission of the crime or its continuation, he can agree “the seizure of the publication or the prohibition of spreading or projecting the means through which was produced the illicit activity” (art. 823 bis LECrim). Besides, the art. 823 bis of the LECrim extends the application of this procedure to the crime which has been committed through sonorous or photographic means, spread in writing, radio, television, cinema or others similar to these, something which has to leas us to understand that with the art. 30 has to happen the same, since this art. 30 and the special procedure of the LECrim are closely connected.
– The criminal liability of whom acts like manager in fact or by right of a legal entity, or on behalf or as legal or willful representative of other:
In the art. 31 of the CP is established the criminal liability of whom acts as manager in fact or by right of a legal entity, or on behalf or legal or willful representation of other, although the conditions, qualities or relations which the corresponding crime requires do not concur on him for being an active subject of it, if such circumstances are met by the entity or person in whose behalf or representation acts.
If we read the art. 31, which practically corresponds with what you have read above, seems that what is being established is an objetive liability which has effects automatically always that, is proven the existence of a criminal behavior under the protection of a legal entity, but this would be against the fundamental right to the presumption of innocence stated in the art. 24.2 of the Spanish Constitution (CE). Let us now go hand by hand of the STS 4033/2018: “In this sense the Constitutional Court in the sentences 150/89 and 253/93 has already established that the norm of the art. 31 CP is not a rule of criminal objective liability, what it follows is precisely to avoid the impunity in which would be kept the criminal actuations committed under the protection of a legal entity.
For this this Chamber, SSTS. 18.12.2000, 23.1.2001 y 25.10.2002, has declared that the art. 31 CP establishes the conditions of the liability of the organs or the representatives of the legal entities or physic persons in the special own crimes, but does not fulfill any function in the rest of the crimes in which the subject not qualified can be an author on his own: “the application of this precept requires that the typified crime envisaged in the CP has special elements of authorship”.
Hence, what is established in the art. 31 CP is only applicable to the special own crimes with special elements of authorship, which concurs only in the legal entity or physic person represented. But at the same time is demanded that, the manager in fact or by right, or who acts on behalf or as legal or willful representative of other, participates in the criminal fact, though his actions does not need to completely fit in the crime described in the CP. The same sentence STS 4033/2018 says afterwards: “In the end, if it is expected to demand criminal liability to the director or manager of the legal entity, it is not enough with the fact that he has a post, he has to develop an action or omission which contributes to the realization of the crime for which he has been convicted, or in other words, he has to make some material act of execution which contributes to the typified result ( STS 297/2005, of 7-3).
It is not a presumption of authorship which does not take into account the art. 28, but a complement of it for those special cases in which the typified crime demands certain and special elements of the authorship which concur in the person represented (physic person or legal entity) but not in the representative (physic person which acts as representative in fact or by right STS 304/2008, of 29-5).”
For the definitions of managers in fact or by right, or of whom acts on behalf or as legal or willful representative of other, we can use what we have said in above section.
– The criminal liability of the legal entities:
The criminal liability of the legal entities was regulated for the first time in the Organic Law 5/2010, of 22 June, through which is modified the Organic Law 10/1995, of 23 November, of the Criminal Code. Its object was to give an answer to the increasing international demand of punishing the legal entities for the crimes in which clearly they had participated (corruption in the private sector, in the commercial international transactions, pornography and prostitution of minors, human trafficking, money laundering, illegal immigration, attacks upon IT systems…).
But, the last reform of the art. 31 bis has been carried out by the Organic Law 1/2015, or 30 March, through which is modified the Organic Law 10/1995, of 32 November, of the Criminal Code. The reform was aimed to technically improve the regulation of the criminal liability of the legal entities, properly delimiting the content of the due control, whose infringement allows to sustain its criminal liability.
The criminal liability of the legal entities only will take place in the cases expressly envisaged by the CP, when they are committed by two kinds of physic persons: by its legal representatives or by those individually acting or as members of an organ of the legal entity, when they are authorized to take decisions on behalf of the legal entity or have organizing or controlling faculties within it; or for whom, being subjected to the authority of those above mentioned, have been allowed to commit the crime for having been gravely infringed for them the duties of supervision, vigilance and control of the activity. But like the physic persons, the legal entities will be exempt from criminal liability when they have adopted a model of organization and management, which results proper for preventing crimes of the nature of the committed or for reducing the risk of their commission. In the cases in which can only be partially proven the concurrence of this exemption, it will works as a mitigating factor.
To the above exemption or, in its defect, mitigating factor, we can add the mitigating factors expressly mentioned in the art. 31 quater. And the exemption expressly envisaged in the art. 21 quinquies, which completely exempts of any kind of criminal liability the State, the territorial or institutional public Administrations, the Regulators Organisms, the Agencies and public business Entities, the international organizations of public law, and those others which exercise public powers of sovereignty or administrative. To the mercantile public legal entities, the exemption is only partially applied, in other words, only can be imposed to them the punishments of fine for proportional quota, or the judicial intervention for the term necessary, which cannot exceed of five years (art. 33.7 a. y g CP).
On account of being legal entities and not physic persons, the CP has established a specific catalog of punishments for them, which are gathered in the art. 33.7 CP.
Neither the transformation, the merger, the absorption or split nor the covered dissolution or the merely apparent, extinguishes the criminal liability of a legal entity (art. 130.2 CP).
– Civil Liability:
As is well remembered to us by the art. 116 CP: “All the persons criminally liable of a crime, is also civil liable if from the crime are derived damages or prejudices”
Then, if the persons criminally liable can be of two kinds: the authors (direct author, instigator or necessary co-operator) and the accomplices. ¿How is divided the criminal liability derived from the crime? We can find the answer to this question too in the art. 116: “The authors and the accomplices, each within their respective class, will be jointly and severally liable between them for their quotas, and subsidiarily for the quotas corresponding to the rest of the criminally liable.
The subsidiary liability will be effective: first, in the goods pertaining to the authors, and after, in those pertaining to the accomplices.”
Therefore, in the sentence where is established the civil liability, which can be the same where is established the criminal liability, o another derived from a pure civil procedure, (art. 109 CP y art. 112 LECrim), it must be established the civil liability of each of the authors and of each of the accomplices separately, existing joint and several liability between the authors and the same joint and several liability between the accomplices. There will exist subsidiary liability between them too, first upon the goods of the authors and after upon the goods of the accomplices.
The legal entities will be civil liable, for the damages and prejudices which derive from the crimes which they have committed, existing joint and several liability between them and the physic persons which has been convicted for the same facts (art. 31, art. 31 bis y art. 116.3 CP).
– The civil receiving:
The civil receiving, regulated in the art. 122 of the CP, is how is denominated to the scenario in which a third party alien to the crime, a third party who has participated in its commission neither as author nor as accomplice, takes advantage through a lucrative title of the effects derived from the crime. This third party, is obliged to the restitution of the thing or to the compensation of the damage till the amount of its participation. For being able to talk about civil receiving, the third party must not know the illicit origin of the effects derived from the crime, otherwise he would be criminal liable according to the art. 298 of the CP.
According to the STS 4033/2018, the characteristics of the third party taking adavantage through a lucrative title are: “1º) There must exist a physic person or legal entity, since it is the claiming of a civil liability and this can be made against legal entities with a personality recognized by the law, which has participated in the effects of that crime, in the sense of having taking advantage of them through a lucrative title, thereby are excluded the acquisitions by virtue of transactions which cannot be regarded as such.
2º) The acquirer must have the mere knowledge of the acquisition and be unaware of the existence of the commission of the crime from which come the effects, in order to avoid the application of the «crimen receptionis” in the concept of author, accomplice or accessory after the fact. The conviction a criminally liable implies the application of the art. 116 CP and not of the art. 122 CP.
3º) Therefore it is not a liability derived from the crime, but which is founded on the grounds that no one can enrich himself from a contract with an illicit cause ( art. 1305 C.Civil). In the end, it is a manifestation applicable to the criminal order according to which there is no possible the enrichment from an illicit cause ( STS 324/2009, of 27-3).
4º) It is a joint and several liability alongside the material author (or accomplice) of the crime, but with the limit of the amount from which he has taken advantage. In other words, this joint and several liability has the limit of the advantage/enrichment which has been obtained.”
For the sake of clarity, we can make use of the STS 6417/1995 to give a definition of what is a transaction through a lucrative title: “It is convenient to clarify that in the transactions through a lucrative title, unlike the onerous, there exists no consideration satisfied for whom receives the goods or rights, thereby this operations neither exteriorice nor generate a determined price.” In other words, it is a transaction without an economic consideration or of any other kind.
– The consequences upon the criminal procedure of the determination of the author, the accomplice or the accessory after the fact during the stage of investigation:
The opening of the intermediate stage of the procedure in the Abbreviated Procedure, or of the oral trial in the Ordinary Procedure, solely will be justified when during the stage of investigation of the crime has been identified an author, an accomplice or an accessory after the fact. Otherwise, has to be agreed the temporary stay of proceedings by the Examining Magistrate in the Abbreviated Procedure (art. 779.1.1º), by the Court which is in charge or ruling the case in the Ordinary Procedure (art. 632 LECrim).
Víctor López Camacho
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com