“Of the injuries” is how is entitled the Title III of the Book II of the Spanish Penal Code (CP). It is a complex title, because in it, besides being regulated the injuries, something which everyone may guess for the title, are also typified the behaviors of organ trafficking and the incitement to self-injury when it is aimed to minors or handicapped. To the above complexity, we have to add the numerous articles which regulate the injuries, the basic type of the article 147, the aggravated type of the article 148, and an amalgam of subsequent articles destined to more concrete and specific cases.
In order to develop the above three kinds of crimes: of injuries; of organ trafficking; and the incitement to self-injury when it is aimed to minors or handicapped. We will divide the present writing in exactly the same three sections.
– The crime of injuries:
To the regulation of the crime of injuries, are dedicated the majority of the articles which form part of this Title III of the Book II of the CP. They are a total of 11 precepts, where as we already said, in the article 147 is regulated the basic type, in the article 148 an aggravated type, and in the rest more concrete and specific scenarios, for instance, in the article 149 is punished who causes in other the losing or uselessness of a principal organ or limb, or in the article 152 to who causes injuries in other for grave or less grave imprudence.
Following the logical order, which is the proposed by the own CP, the first article we have to comment is the article 147. In this article is regulated the basic type of injuries, in other words, the ordinary injuries or, at least, the more usual. Down below, let us transcribe it:
“Article 147:
- Who, for any means or procedure, causes to other an injury which damages its corporal integrity or its physical or mental health, will be punished, as convicted for the crime of injuries with the punishment of imprisonment from three months to three years or fine from six to twelve months, always that the injury objectively requires for healing, besides of a first medical assistance, medical or surgical treatment. The simple medical vigilance or following of the development of the injury will not be regarded as medical treatment.
- Who, by any means or procedure, causes to other an injury not included in the above point, will be punished with the punishment of fine from one to three months.
- Who hits or maltreat other without causing to it an injury, will be punished with the punishment of fine from one to two months.
- The crimes envisaged in above two points will be only prosecutable through report of the person offended or its legal representative.”
Let us halt in the first of its points, which, besides, is the most important. In the first point of the article 147 is punished who causes physical or mental injuries to other, with the essential requisite that the injury “objectively requires for its healing, besides of a first medical assistance, medical or surgical treatment.” Let us now try to deepen in its meaning.
The first question we have to solve is the kind of behavior which is punished, in other words, if it requires malice, and in its case of what kind. In the crime of injuries of the article 147, is required that concurs the denominated as “animus laedendi” or intention of injuring, hence, there have to be malice, understanding as this malice any of its two possible classes, both the known as direct malice and the so-called eventual malice. In the former, it is required that who injure other knows the elements of the objective type which form the crime of injuries, and willingly decides to execute them, or in the own words of the Spanish Supreme´s Sentence (STS) number 4840/2022: “As is argued in the STS of 16 June 2004 the malice, according to the more classical definition, means to know and want the objective elements of the penal type.” On the contrary, the eventual malice supposes that who will carry out the action or actions, foresees as probable that as consequence of this action or actions a legal good will be injured, without being, nevertheless, this the goal of its execution, and despite this, it does not desist of its behavior, or again in the own words of the STS 4840/2022: “the STS of 4 June 2001 says that the malice supposes that the agent represents to itself a harming result, of possible and not necessary production and not directly wanted, in spite of which is accepted, also consciously, because it is not renounced to the execution of the thought acts. It means that, in any case, is demandable in the author the consciousness and knowledge of the high risk of production of the result that its action contains.”
That in the causation of the injuries concurs “animus laedendi”, makes us to think in other questions. Such “animus laedandi”, this intention of injuring, even though in its eventual kind, pertains to the private sphere of the author of the facts, it is a subjective element of the penal type, and as such, can only be known for sure by who executes the facts. The rest of the persons, can only infer whether existed malice or not, by means of the external facts which surrounded the causation of the injuries. For example, by the relation between aggressor and assaulted, by the use of a weapon in the aggression, or by the context in which the aggression was committed. There will be cases in which the concurrence of such “animus laedandi” is clear as water, as in the scenario in which one punches other, but there will be another scenarios in which the boundaries separating the eventual malice and the grave imprudence are not as clear as before, as in the case in which a neighbor installs a plastic flowerpot, which ends falling upon a passer-by opening its head. Perhaps you have better instances for the latter case.
However, the identification of what was the intention of the author of the injuries acquires even more relevant dimensions, when the discussion turns around whether the real intention was of injuring or of killing, in other words, whether there was “animus necandi” or “animus laedandi”, and even more problematic will be if what is discussed is the existence of eventual malice. The Provincial Court of Lleida´s sentence number 1579/2022 says: “The article 138 of the Penal Code establishes that “who kills other will be punished, as convicted for homicide.” Such precept requires the concurrence of the following elements: a) an action of physical attack; b) the existence of a physical harm for the victim; c) The intention of killing or “animus necandi”; and d) the relation of causality between such attack and the injuries caused to the harmed. Being the element which distinguishes it from the crime of injuries, the concurrence in the agent of the intention of killing -homicidal direct or eventual malice-.” Therefore, when what is discussed is whether there was a crime of homicide in degree of tentative or a crime of consummated injuries, the court in charge of qualifying the facts should attend to those external factors which surrounded its commission and to which we referred before, for trying to find out the real intention of its author. Here, we do have a good example from our courts, the Supreme Court´s resolution number 17977/2022 says: “For what is referred to the intention of the appellant this Chamber has pointed out as external signs which reveal the will of killing, among others and as more significant: a) the background of the fact and the relations between author and victim; b) the class of weapon used; c) the part of the body to which the aggression is aimed; e) the manifestations of the guilty which accompanied the aggression and its previous and subsequent activity to the facts; f) the conditions of the place, time and related circumstances with the action; g) and the cause or motivation of it ( SSTS 34/2014, of 6 February and 539/2014, of 2 July, among others).
If the analysis of this data and of the rest concurring allows to affirm that the author acted with conscience of the risk which created for the life of the victim, and in spite of this executed the action, the correct conclusion is that we are before a crime of homicide, for existing at least eventual malice with respect the result of death (SSTS 13-02-2002 y 16-5-2004).
The malice of killing, when there exist suggestive data that may have concurred and the author of the fact denied it, must be obtained by induction from them. For this, we have to take into account two objective facts as basic facts in the proof of evidences: on the one hand, the class of the weapon used and, on the other hand, the place of the body chosen for the mentioned hit, which has to be a vital place, as the head or the trunk, where there are organs whose injury may determine the losing of the life (SSTS 261/2012, of 2-2; 554/2014, of 27-3; 565/2014, of 27-3).”
Depending on the assessment which the courts makes of those factors, the crime should be qualified as a crime of homicide in degree of tentative (art. 138, art. 16 and art. 62 CP) or a crime of consummated injuries (art. 147 CP and following). Here, we have to remember as well, what is said by the article 16.1 CP: “There is tentative when the subject begins the execution of the crime directly for external facts, practicing all or part of the acts which objectively should produce the result, and however this is not produced for independent caused to the will of the author.” In other words, the facts should be qualified by the court as an homicide in degree of tentative, when besides of having inferred from those external factors to which we referred before that the will of the author was to kill, that this sought result was not produced for external causes to its will, since there were executed all the acts which should have produced this result.
Besides, in these cases, there exists concurrent laws in relation of tacit subsidiarity between the crime of consummated injuries and the crime of homicide in degree of tentative, a case which should be resolved punishing the crime which have associated the greater punishment. This is explained to us by the Provincial Court of Huelva´s sentence number 452/2022: “Certainly such behavior is included in the penal type of injuries of the article 148 of the Penal Code, but it is not less true that such actions described comprehend, at the same time, the behavior qualified as murder in degree of tentative of the articles 139.1.1 and 16 of the Penal Code. This concurrence of consummated injuries and homicide or murder in degree of tentative is very usual in the practice. Such cases of concurring are widely dealt by the doctrine. Thereby, it is said that there exist concurrent laws in relation of tacit subsidiarity in the concurrence of injuries and murder in degree of tentative, but, the relation is of consumption, being the crime which must be punished, the crime which has the greater punishment if the concurrence is between the consummated injuries and the tentative of murder. That is why, in the present case, in the concurrence between the crime of murder in degree of tentative and the crime of consummated injuries, should be resolved in favor of the former crime.”
But we have to deepen even more in relation with the tentative, because the second point of the own article 16 of the CP, exempts from criminal liability those who desist of the execution already initiated of a crime or impede the production of its result, though without prejudice of the criminal liability in which have incurred for the acts already initiated if they were another crime. In these case, hence, even existing the will to kill, in the shape of direct malice or eventual malice, if who executes the acts or part of them which have to give as result the death, desist of its execution not completed yet or actively avoids the consummation of the result, the death, will be exempted of criminal liability for the crime of homicide, but he will have to respond for the crimes of injuries, if during the execution of these acts have been produced. This is how this second point of the article 16.2 has been interpreted by the Spanish courts, for example in the Provincial Court of Alaba´s sentence number 823/2022: “The Supreme Court has applied in different occasions the figure of the active desisting to crimes of homicide or murder, without applying the attempt and punishing only of the harming result which was achieved, the following sentences are a good example:
Sentence of the T.S. of 20 October 2021:
“This Cassation Chamber, in the Plenary Agreement of 15 February 2002, has analyzed, with regard to the article 16.2 of the Penal Code, what has been regarded a kind of acquitting excuse, designed by the legislator, as all of its class, for reasons of criminal policy. It emphasizes the demand of “willingness”, which defines its dogmatic essence, and after, the “efficacy” of the behavior which halts the “iter criminis”, requiring that either it is the own author of the crime who impedes the commission of the crime, or it is who provoke the participation of third persons, if they are who finally achieve it. ( Sentence of this Chamber no 28/2009 of 23 January). That agreement had been gathered in the Sentence of this Court no 446/2002 of 1 March, which agreed the desisting despite the fact that the accused in a discussion with its wife, took from its pocket a penknife of 12 centimeters and stabbed it in her neck and “later as consequence of the yelling and blood which was pouring from the wound both left the home asking for help to the neighbors, who called the ambulance and the police”. It was regarded that notwithstanding considering that the wound, owing to the tool and the part of the body affected was enough and suitable to provoke the death, extreme into which there were no discussion, owing to the later immediate behavior of the accused, going to the street and asking for help, proves that its initial malice, clearly homicidal, was changed when appear as imminent the death, disappearing that homicidal intention and asking for a help which was effective. The behavior of the accused was regarded as active desisting and was punished for a crime of injuries. Certainly the doctrine of this Chamber, in the exegesis of the article 16.2, has distinguished between the necessity of a denominated “active regretting”, or positive acts with the aim of neutralizing the executive acts already wholly executed, impeding with them the production of a result, and the sufficiency of the mere omissive acts of interruption of the execution of the illicit, for allowing the application of the repeated article 16.2 of the Penal Code, depending upon whether we are before what has been denominated “ended attempt” or “non-ended attempt”. Thereby, while in the “non-ended” would be enough with the interruption of the execution, in the ended, would be required the carrying out of positive acts which impede the result.
That is why, in subsequent sentences has been recognized that the most relevant of the regulation of the attempt in the Code currently in force is that in the article 16.2 is described the figure of the desisting with great scope and applicable to tow kinds of attempt, ended and non-ended, in the following terms: And is stablished that: “Certainly the new desisting of the art. 16.2, has supposed a turning point in the jurisprudence of the Chamber because if during the validity of the CP of 1973 it does not envisage the desisting in the old frustration, but only the application of the ninth attenuating factor of the art. 9 of such Code—fixing the damage—, now is recognized the existence of an active desisting when the agent impedes the harming result, with the consequence that, for example in crimes against the life —as is the case—, what before was qualified as crime of homicide in the attempt with the attenuating factor of reparation, with the current Code, the jurisprudence of the Chamber qualify them as crimes of damages accomplished, since it has been considered that the crime against the life was exempted of liability for the willing and active desisting of the agent who had impeded the result, not being obstacle for this that the initial malice of the agent was of animus necandi.” In short, the doctrine of this Chamber has been in cases of desisted and effective attempt of homicide, makes to respond the agent only of the crime of injuries —according the gravity of them—, despite the fact that the initial act of the agent was motivated by a clear homicidal intention. ( Sentence no 111/2011 of 22 February).
The jurisprudential doctrine when setting the requisites for the effective exemption of desisting establishes that for finding out the negative component of the attempt (avoiding of the consummation by the author) has to be determined the cause by which the result is not produced. With respect to this, there are two hypothesis: 1a) The no production of the result is alien to the will of the author and 2a) It is the author who willingly avoids the consummation.
Although the legislator talks on the one hand of the no production of the result and on the other of the avoiding of the consummation, the emphasis for determining the consequences envisaged in the points one and two of the article 16, has been putted by the legislator into two notes: a) The willingness of the author and b) the effectivity of his behavior for causing the no production of the result, which objectively must have caused its previous behavior.
In other words, that if that behavior is free and willing and at the same time can be imputed to it the effect that the result or consummation do not finally occur, it results indifferent that such behavior adopts the modality merely omitted or the active modality.
Whether the previous acts have ended or not with the totality of the executive acts, that objectively must have produced the result, does not determine necessarily what has to be the condition, merely omitted or active of the behavior of the author which frustrates the production of the result, for achieving the exemption of the article 16.2 of the Penal Code.
The Penal Code uses the difference between the total or partial only as a criteria of individualization of the punishment (article 62) but not for setting the behavior which exempts the penal liability of the attempted crime.
In any case, with difficulty may be claimed interrupting effectivity of the mere omission of the author with regard to the production of the result, when its previous behavior has supposed the carrying out of all the acts that objectively produce the typic result. Because, it it already carried out all the acts that objectively produce the result, it is clear that neither the acts omitted were objectively executives nor their omission is relevant for the production of the result.
With such warning, it is ,therefore, to those references of free will and efficacy in the behavior of the author, regarding the no production of the result, to which we have to attend, without, to that effect, being essential be guided by the conceptual categories as the diversification of the attempt in subspecies, that in an evident way the legislator has tried to eradicate, obviating terminologies as the difference between the attempt and the frustration or between the ended attempt or non- ended attempt. This last terminology of alien origin, seems to attend to a data which our legislator does not assume explicitly. The doctrinal sector which introduced attended, for establishing the ending, to the contribution of the author in the execution and not to the concurrence of another factors alien to it. But that all that the subject provided ends is not necessarily equivalent to the fact that all the acts of execution (which can be produced by third parties) have been made. However the measure of the punishment depends upon that the execution had been total, including the acts that objectively produce the result, which are not acts of the author, and which can be of a third party.
Such taxonomic concerns, when we are trying to asses the absence of the result for establishing the demand of liability, must not make to forget the essentiality of the criteria of free will and efficacy, referred to the acting or omitting of the author of the attempt (Sentence 809/2011 of 18 July)”.
The sentence of the Supremo Court of 15 March 2018 says:
“The second basis of the STS 671/2017 of October, extensively develops the justification of the new doctrinal criteria:
“The Criminal Code, in its article 16, in relation with the 62, defines as attempt the behavior characterized, in the objective, by: a) The carrying out of “external facts”, in other words, not only internal; b) That impede the beginning of “direct” execution, in other words, non-preparatories, of case typically penal, sought in the plan of the author and which supposes a risk for the legal good that the penal type protect; c) that “objectively” these acts are potentially the cause of the result of the type, without being enough, therefore, the subjective conviction of the possibility of such causation, if before and objectively it could not occur, and d) that this result is not produced.” “Subjectively is required a resolution in the author referred to the consummation of the crime, without which would not concur the type of the unfair of the attempt.”
“That said, to that elements has to be added the last negative requisite: that the author has not avoided the consummation, because in that case the penal liability, for the attempt of the fact
typified whose execution began, would not be demandable according to the envisaged in the article 16.2 of the Penal Code.” Certainly the doctrine of this Chamber, in the exegesis of the article 16.2, has come distinguishing between the necessity of a denominated “active regret”, or positive actions tending to neutralize the executive acts already carried out, impeding with it the production of the result, and the sufficiency of the mere omissive acts, the interruption of the execution of the illicit, for allowing the application of the repeated article 16.2 of the Penal Code, depending on whether we are before of what has been denominated “ended attempt” or “non- ended attempt”. Thereby, while the “non-ended” will be enough with the interruption of the execution, in the “ended” will be required the carrying out of positive acts which impede the result”.
In the same way, the STS 778/2017 of 30 November, in a case where the accused after making a shot at short distance with a semiautomatic pistol which reach the victim, who turns and attack the aggressor, who continues aiming at it with the weapon and even puts the pistos against its temple, but leave it to go after varios kicks, is applied the exemption of the desisting in relation with the murder.
We have also to mention the Sentence of 2 April 2009:
“Down below, we have to analyze the later behavior of the accused:
The accused moved it in a vehicle of its property until the closest hospital where it was assisted and diagnosed”, adding in the basis of the sentence that this “assistance which of not being close to the moment in which were produced the facts, according to the medical experts, would have determined its dead”.
It is a behavior after the commission of the crime of extraordinary importance, relevance, since the related facts reveals that the action of killing, in the terms which we have analyzed, does not reach the result due to its later behavior bringing the victim to a hospital, with the efficacy that the sought result was not produced.
This latter behavior should be subsumed in the article 16.2 of the Penal Code, the active regret, in which the author tries to compensate the criminal action committed with a later behavior avoiding the production of the result of its action. For this case, of desisting, or of active regret, the Code envisages the exemption of the liability, without prejudice of the liability in which it has incurred for the acts already executed.
It is not behavior merely repairing but a behavior aimed to avoid the result of its action, therefore, it surpasses the mere reparation after the crime for being regarded as a behavior aimed, with efficacy, to avoid the result initially sought…
Because if the initial intention is to end with the life of the victim and the suitability of the means uses justified, at first sight, the classification of these facts as homicide, in its case murder, in the degree of attempt, the action impeding the acts of aggression should bring the application of the figure of the desisting in the attempt or active regret of the art. 16.2 CP.
According to this precept, the committed for trial should have been exempted from the liability which in another case would have corresponded to him for the attempt of homicide and being convicted for the crime of injuries which constituted, by their own, the wounds which were produced.” In the same vein, is pronounced the sentence of the T.S. of 30 May 2012: “This behavior of the appellant is a clear case of active desisting, because after having effectuated the acts of aggression related with the lethal weapon as is a knife of the characteristics described, changed its initial homicidal malice for what this chamber has denominated as “malice of salvation”, moving the victim bad wounded to a service of emergencies, which was the only suitable behavior to save its life, when it did not exist yet alien knowledge of the facts and therefore as spontaneous fruit of its free will.
We are, as consequence, before what this Chamber has denominated an “actus contrarius” to the aggressor, with efficacy for halting the normal course of the injuries produced towards the result of death and manifestly willing, thereby there concurs the two requisites envisaged by the legislator for the application of the consequence envisaged in the article 16.2 for the active desisting (efficacy and willingness), having been avoided through the regret of the agent the consummation of the injury to the life which constitutes the legal good protected by the crime of homicide.
In consequence, it is of application the second paragraph of the article 16 of the Penal Code which establishes an acquitting excuse with regard to the crime of murder initially begun by the agent, being necessary to punish, exclusively, the facts really committed which constitute a crime of injuries.”
Applied the above jurisprudence upon the present case, and departing from the fact that the accused committed the necessary acts to cause the result of death, only needing to wait to the
passing of the time, however, she did not wait to it to happen, but she willingly proceeded to the carrying out of the acts which avoided the production of the result. Thereby, she made the call to its mother, because she could not make it, likewise she could not have opened the door or could not have took out the minor from the room and carry him to the balcony of the living room, putting in this way an end to her idea of ending with her life and the life of her son, saving with it his life because otherwise, in the case of continuing to be exposed to the inhalation of the gas, he would had died. Therefore, are fulfilled the requisites for applying the desisting of the article 16.2 of the CP:
- Willingness of the actions, nothing obliged to her to call her mother, to open the door or to take him out of the room where he was inhaling the gas.
- It was positive, effective and complete because this behaviors determined that his life was saved. This is, the action carried out which could had ended with the life of the minor, is neutralized with these later behaviors until the point of leaving without effect the initial malice. The basis of such exemption, in the words of the sentence of the T.S. of 9 February 2017, “resides in various motives: “Some authors understand that the favorable treatment that in this is established for the desisting of the attempted crime respond to reasons of criminal policy. According to this doctrine -known as the theory of the criminal policy- the law has wanted to create a motive for, in the sight of the exemption of the punishment, the author desists of its fact, what constitutes a clear objective of criminal policy.
Other authors sustain (theory of the insignificant liability) that the basis of this norm is placed precisely in the reduction of the liability until the insignificant, for it is founded in a compensation based in an actus contrarious. Lastly, another part of the doctrine, deem that, in it converge various basis: the pointed out reasons of criminal policy and also the lesser liability that implied the general consideration of the fact, with an initial negative meaning which is compensated with a positive sense of the avoiding of the result part of the corresponding penal figure.””
Let us now start from the beginning, because we have said that, who is in charge at the end of qualifying the facts, as homicide in degree of tentative or as consummated injuries will be the ruling court. But it is not less true that, the qualification that it makes of the facts, is bound to what previously has been asked by the accusations in their writings of definitive qualification of the crime. What happens then if the accusations have qualified the facts as homicide in degree of tentative but the court finally qualifies them as consummated injuries?, will there be an infringement of the accusatory principle as consequence of such disparity in the qualification of the crime between accusation and the ruling court? The answer is no, that principle is not infringed if there exists homogeneity between the legal good protected by the penal type used by the ruling court, and the penal type used by the accusations for qualifying the facts in their writings of definitive qualification of the crime, always that besides, the court does not convict with more punishment that the requested by the accusations, and is respected by the sentence the essential facts which are being punished. Thereby the Spanish Supreme Court´s resolution says: “In this sense, the Spanish Supreme Court´s sentence 195/2021, of 4 March, establishes that: “the jurisprudence of this Chamber has reiteratively proclaimed that the homogeneity requieres that between the punitive figure object of accusation and that in which is based the conviction, there must be an essential respect of the fact object of accusation and that are not introduced a different object of protection or elements about the modality of commission that impide or hinder an effective defense.”
This is, we have said that more than an identity of the legal good protected between both criminal figures, must be appreciated an identification in the same line of attack of the legal interests between both crimes, in a way in which can be appreciated in them the same defensive structure. And such consideration we have stressed that the accusation for a crime of homicide in degree of tentative usually implies (but not necessary) a subsidiary accusation for a crime of consummated injuries, in a way in which can be appreciated without difficulty the homogeneity between both crimes (SSTS 1390/1998, of 11 November; 1089/1999, 2 July; 745/2012, of 4 October or 275/2020, of 3 June)”.”
The last we should see, in relation with the first point of the article 147, is to what this is referred when it conditions the punishment of the physical or mental injuries, to the necessity that these requiere for their healing medical or surgical treatment. In order to answer this question, the best we can do, is to see the said by the Provincial Court of Lugo´s sentence number 1023/2022: “The Supreme Court´s sentence number 533/2019 of 5 November, reviews the subject of the medical treatment in the crime of injuries:…
As the Sentence of 27 July 2002 points out, the treatment has to be objectively necessary, thereby, though this is not applied, may be a crime the causation of an injury which objectively necessitates treatment, and not be an injury to which was applied treatment if this was not objectively necessary in the case, since in other way will be at the disposal of the victim the application of the treatment. Therefore, being an objective element of the crime of injuries the “necessity” of the treatment, and not the fact of having being applied, it is necessary the existence of proof which support this objective necessity, and that this proof is incorporated to the reasoning of the Sentence.
Our Jurisprudence has defined the medical or surgical treatment, to the penal effects, as “all subsequent activity to the first assistance…aimed to the healing of the injuries and prescribed by a doctor.” In a more descriptive way, “the procedure which is used to cure an illness or for reducing its effects, either when it is made by the doctor who gives the initial assistance or when it is entrusted to healthcare assistants, leaving aside the simple diagnostic and the pure medical vigilance or prevention.” In the following or vigilance must be included the cases of checking of the success of the medication prescribed, of simple observation of the development of the injuries or the pointing out of mere preventive measures, but not those which include additional assistance. In any case, in the distinction between crime and misdemeanor cannot be dismissed the examination of the relevance of the injury, as a whole. In the sentences SSTS 180/2014 of 6 March, 34/2014 of 6 February, we said that the medical treatment -for all SSTS 153/3013 of 6 March, 650/2008 of 23 October, is a normative concept that, in absence of a legal definition, must be achieved through doctrinal and jurisprudential contributions that grant to it the necessary legal security that the interpretation of the type requires. The own typical expression of the article 147 of the Penal Code allows to us to delimit its scope. Thereby, it points out to us that the medical treatment must be objectively required for achieving the healing, what excludes the subjectivity of its application by a doctor or the own victim. Besides, it must transcend of the first medical assistance, as separated medical act, and it is not integrated by the applied for making simple medical vigilances or followings. That is why, jurisprudential has been pointed out that as such must be understood “all subsequent activity to the first assistance…for the healing of the injuries and prescribed by a doctor.”
“That system which is used to cure an illness or for trying to reduce its consequences, if this is not curable, being indifferent that this subsequent activity is carried out by the own doctor or has been entrusted to healthcare assistants, as well as when it is imposed to the patient for the prescription of medicines or for the fixation of behaviors to be followed, leaving aside of the medical treatment the simple diagnostic or the pure medical prevention.”
Indeed, not taking into account the first assistance, the treatment stipulated by the legislator is medical or surgical. The former is the planning of a system of healing or of a medical scheme prescribed by medical graduate with the healing goal, the latter is that, that by means of the surgery, has the end of healing an illness through operations of this nature, whatever is the importance of this: grand or minor surgery, understanding that the healing, if it is made with lex artis, requires different actions (diagnosis, preparatory assistance, surgical exploration, recuperation ex post…).”
After reading this excerpt of the Provincial Court of Lugo´s sentence number 1023/2022, let us try to sum up its content:
1) The treatment has to be objectively necessary.
2) It is necessary that there exists evidence which support that objective necessity, and that this evidence is incorporated to the reasoning of the sentence.
3) The medical or surgical treatment must be aimed to cure an illness or to reduce its consequences.
4) Are excluded, the simple diagnosis and the pure vigilance or medical prevention.
5) The medical treatment is, the planning of a system of healing or a medical scheme prescribed by a medical graduate with healing aim.
6) The surgical treatment is, that which by means of the surgery, has as its goal to cure an illness.
After explaining the content of the first point 147, we have to talk about three more. In the second point, is punished who causes an injury to another, which is not included in the first point. For understanding that this injury is not included in the first point, it has not to require the medical treatment to which we referred before, that is why is less punished than the case contemplated in the first point.
In the third point, is punished who hits or maltreats other without causing to it an injury. A scenario which is even less punished than the envisaged in the second point, for it does not require the existence of an injury.
And lastly, in the four point of this article 147 is not punished any behavior, in it is pointed out that the crimes envisaged in the second and third point are only prosecutable at the request of the offended or its legal representative. This transforms them into semi-public crimes, they cannot be prosecuted ex officio because there must exist previous report or lawsuit. However, this does not mean that there has to be a private accusation during the procedure, because once it has been initiated through report or lawsuit of the offended, the accusation can be maintained by the Public Prosecution.
Let us now see the article 148. If in the article 147 we find regulated the basic type of the crime of injuries, in the article 148 it is regulated the aggravated type, in other words, are punished with a greater punishment the injuries caused always that concur any of the five circumstances mentioned in it. Nevertheless, we have to emphasize that the article 148 is only applicable to the injuries punishable according to the first point of the article 147. Concretely the article 148 says: “The injuries envisaged in the first point of the above article can be punished with the punishment of imprisonment from two to five years, taking into account the result caused or the risk produced:
1º If in the aggression has been used weapons, tools, objects, means, methods or ways dangerous for the life or health, physical or psychic, of the injured.
2º If there was either cruelty or malice aforethought.
3º If the victim was a minor of less than fourteen years or a handicapped person needed of a special protection.
4º If the victim was or had been wife, or woman bound with the author by an analogous relation, even without living together.
5º If the victim was a specially vulnerable person who lived with the author.
As we can see, differing from what occurs in the injuries punished by the articles 149 CP and following, the aggravation of the article 148 is not imperative, but an option of the ruling judge or court depending on the circumstances of the concrete case “taking into account the result caused or the risk produced.”
The first circumstance contemplated as an aggravating factor is that, “during the aggression there have been used weapons, tools, objects, means, methods or ways dangerous for the life or health, physical or physic, of the injured.” As the Spanish Supreme Court´s resolution number 17867/2022 recall to us, “this aggravated subtype is applied to both, the firearms and the cutting weapons, among which we can find daggers, knifes and jackknifes and, in general, all the cutting tools capable of harming (STS 666/2020, of 4 December)”. In this case, the aggravating factor is based, not in the graveness of the injury caused by the weapon or tool, but in its capacity of harming, since it has a capacity of causing graver injuries than the produced. This excerpt from the Spanish Supreme Court resolution´s number 17867/2022 is clear regarding to the above: “Likewise, we have said in our sentence 727/2022 of 14 July that the article 148.1 CP is “a complex figure, integrated by a basic type with a natural harming result (article 147.1 CP) and for a type of concrete danger, the generated by the use of a tool bestowed of a harming potential ideal for causing graver injuries than the caused. ( STS 687/2018, of 20 December). It is necessary that besides the injury, it had created a complementary danger for the legal good protected. Precisely, the basis of the aggravated punishment through the use or weapons and other dangerous tools resides in the increment of the aggressive capacity of the author and in the major risk of causing grave injuries by the author, what is translated in a greater reproach for its acts ( SSTS 339/2001 of 7 March; 1203/2005, of 19 October; 1114/07, of 26 December; 1339/2011 of 5 December; 981/13, of 23 December; 529/2014 of 24 June; 680/2014 of 6 March; 608/2019, of 11 December; or 261/2020, of 28 of May)”.”
In relation with this aggravating factor, has existed polemic with regard to whether it is applicable to the use by the police of clubs or regulation defenses. The answer is affirmative, but the police have to make a bad use of them, putting in danger lives o being illegitimate used. An instance, is the STS 3973/2022: “even when there do not lack sentences in which we have rejected to consider such aggravation with occasion of the use of clubs and regulation defenses, it has been for the subjective component of their use, this is, for not concurring circumstances which showed that the life or physical integrity had been put into danger according to the circumstances of the case and for answering to policial legitimate actuation ( SSTS 1077/98, of 17 October or 782/03, of 31 May).”
The following aggravating circumstance is that, had existed cruelty or malice aforethought. For cruelty we have to understand, to unnecessarily augment the suffering of the victim for achieving the typic result, and for malice aforethought, to execute the crime in a way in which is eliminated any possibility of defense of the victim. The former is defined in the fifth point of the article 22 CP: “To deliberately and inhumanely augment the suffering of the victim, causing to it unnecessary sufferings for the execution of the crime.” This concept has also been developed by our jurisprudence, as for example in the Provincial Court of Barcelona´s sentence number SAP BA 1394/2022:“The cruelty requires an objective element constituted by the fact of causing unnecessary harms for achieving the typic result, which increase the pain or suffering of the victim; and another subjective, that the author must execute, willful and conscious, acts which are not directly aimed to the consummation of the crime, but to the increasing of the suffering of the victim. The Jurisprudence of our Supreme Court interpretes the term willingly as the reflexive knowledge of what is being made, and the expression inhumanely as the improper behavior of an human being, thereby the STS 1176/2.003 of 12 September and 1760/2.003 of 25 December. The author must act in a way conscious and willful, for which it is enough with being able to affirm that it knows that with this way of acting necessarily increased the suffering of the victim. It is not necessary, therefore, that exists cold blood, either that the action is directly or exclusively aimed to cause more pain as is established in the STS no 477/2.017 of 26 June.”
On the other hand, the malice aforethought is defined in the second point of the article 22 CP: “There is malice aforethought when the guilty commit any of the crimes against the persons making use in its execution means, modes, or forms that directly or specially are destined to guarantee their commission, without the risk which for its person may come from the defense of the offended.” Or how is pointed out by the STS no 1890/2001 of 19 October, the kernel of the malice aforethought is found in the destruction of the possibilities of defense. The SAP M 15874/2022 also said that, the malice aforethought requires four elements: “a) In the first place, a normative element. The malice aforethought only can be applied in crimes against the persons.
b) In the second place, an objective element which resides in the “modus operandi”, that the author uses in the execution means, modes or forms which have to be objectively adequate for assuring it through the elimination of the possibilities of defense, without being enough the convincing of the subject about its suitability.
c) In the third place, an subjective element, that the malice of the author is applied not only upon the utilization of the means, modes or forms employed, but also upon its tendency to assure the execution and its orientation to impede the defense of the offended, eliminating in this way the possible risk which may suppose to its person an eventual defensive reaction of it. In other words, the agent has to have intentionally seek the production of the death through the means indicated, or at least, to take advantage of the situation of assuring the result without risk.
d) And, in the fourth place, an teleologic element, which imposes the checking of whether in reality, in the concrete case, was produced a situation of whole defenselessness, being necessary the appreciation of a greater unlawfulness of the behavior precisely derived of the modus operandi, consciously aimed to those purposes ( STS. 1866/2002 of 7.11).”
Besides, in the same SAP M 15874/2022 are distinguishes three different kinds of malice aforethought, according to the jurisprudence of the Supremo Court, taking into account the different executive modalities of premeditated nature: “a) Treacherous malice aforethought, equivalent to treason and which includes the trap, insidiousness or ambush, situations in which the aggressor is hidden and falls upon the victim at the moment and place where it does not wait it. b) Sudden or unexpected malice aforethought, in which the active subject, even at the sight or in the presence of the victim, do not discover its intentions or taking advantage of the confidence of it acts in a way unexpected and sudden. In these cases is precisely, the unexpected character of the aggression what eliminates the possibility of defense, for who do not expect the attack cannot prepare itself against it and react in consequence, at least according to its possibilities.This modality of malice aforethought is appreciable in the cases in which there is an attack without previos warning. c) Helpless malice aforethought, which consists in the taking advantage of a special situation of helplessness of the victim, as in the cases of children, weakened elderly, grave ill or handicapped, or for being accidentally without the possibility of defense (asleep, drugged, or drunk).”
The third aggravating factor of the article 148 is that, “the victim is a minor with less than fourteen years or a handicapped person needed of a special protection.” In this case, the aggravation of the punishment is based in the type of victim chosen for executing the crime, due to its lack of capacity for defending itself.
The forth aggravating circumstance of the article 148 is that, “the victim was or had been wife, or woman bound with the author by an analogous relation, even without living together.” Here the basis of the aggravated punishment is the so-called gender violence.
And the fifth aggravating circumstance of the article 148 is that, “the victim was a specially vulnerable person who lived with the author.” Being such living together and the special vulnerability of the victim the basis of the aggravation of the punishment.
The next article we have to comment is the article 149, which punished who causes to another the losing of a principal organ or limb, or of a sense, the impotence, the sterility, a grave deformity, or a grave somatic or physic illness. It also punishes who causes to other a genital mutilation. In both cases, the punishment imposed is greater than the envisaged in the article 147 for the basic crime of injuries and in the article 148 for the aggravated type, due to the harm caused. Concretely the article 149 says: “1. Who causes to other, by any means or procedure, the losing or inutility of a principal organ or limb, or of a sense, the impotence, the sterility, a grave deformity, or a grave somatic or physic illness, will be punished with the punishment of imprisonment from six to twelve years.
- Who causes to other the genital mutilation in any of its manifestations will be punished with the punishment of imprisonment from six to twelve years. If the victim was a minor or a handicapped person needed of special protection, there will be applicable the punishment of special disqualification for the exercising of the parental authority, guardianship, guard or foster for a term from four to 10 years, if the judge deems it necessary for the minor´s interest or of the handicapped person needed of special protection.”
And in the article 150 is punished who causes into other the losing or inutility of a not principal organ or limb, or the deformity, imposing a punishment less severe than the envisaged in the article 149, for being of less importance the organ or limb affected and of less intensity the deformity caused. Concretely the article 150 says: “Who causes to other the deformity or inutility of a non-principal organ or limb, or the deformity, will be punished with the punishment of imprisonment from three to six years.”
From the joint lecture of the above two precepts, we see that the greater difficulty may arise determining what can be understood by grave deformity or not. For solving this doubts, we have to attend to the Law 35/2015 since in its article 102 are regulated the degrees of aesthetic damage.
Once we have ended with the article 150, it seems that the legislator has ended with a cycle, for in the next article, in the article 151 says: “The provocation, the conspiracy and the proposal for committing the crimes envisaged in the above articles of this Title, will be punished with the inferior punishment in one or two degrees to the corresponding crime.” An article, that we should link with the envisaged in the article CP, where are defined the conspiracy and proposal, and expressly is said that they only will be punishable in the cases specially envisaged by the law.
Concretely the article 17 CP says: “1. The conspiracy exists when two or more persons agrees the execution of a crime and resolve to execute it.
- The proposal exits when who has resolved to commit crime invites to other or others to take part in it.
- The conspiracy and the proposal for committing a crime are only punished in the cases specially envisaged by the law.”
We have to connect, too, the envisaged in the article 151, with what is said by the article 18, where is defined the provocation, and like the cases of proposal and conspiracy, is established that only is punishable in the cases expressly envisaged by the law. The article 18 says: “The provocation exists when directly is incited by means of the printing press, the broadcasting or any other means of similar efficacy, that facilitates the publicity, or before a concurrence of persons, the commission of a crime.
It is apology, to the effects of this cade, the exposition, before a concurrence of persons or any means of diffusion, of ideas or doctrines which extol the crime or praise its author.
- The provocation will be punished exclusively in the cases in which the law envisages it.
If the provocation had followed the commission of crime, it will be punished as induction.”
The next article we should to comment is the article 152. In the article 152, is punished who causes into other some of the injuries mentioned in the article 147.1, 149 or 150, for grave negligence or for less grave negligence. Leaving aside of the penal ambit the injuries caused for grave imprudence or less grave imprudence, which do not require medica or surgical treatment (art. 147.3 CP), this does not mean that the damage caused by these sorts of imprudences, cannot be compensated be means of a civil procedure as non-contractual liability (art. 1902 of the Spanish Civil Code).
On the other hand the negligence, is a legal concept more complex, bordering with the eventual malice when it is a serious negligence, for the LO 1/2015 distinguishes between the serious negligence and the less serious negligence, leaving the slight negligence reserved the the (civil) ambit of the extra-contractual liability.
According to the Spanish Supreme Court’s sentence 2648/2022: “The essence of the crime of negligence is the infringement of the duty of care which makes punishable his behavior because this care was demandable to him.” Afterwards it adds the elements which compound the negligence: “a) a willful not intentional or malicious action or omission, with the absence of whatever direct or eventual malice; b) the psychological or subjective factor consisting in the negligent action for a lack of the forecast of the risk; c) the normative or objective factor represented by the infringement of the objective duty of care, concreted in the regulation or imposed by cultural social norms demandable to the average citizen, according to common experience; d) the production of the harmful result; and e) adequate causal relation between the careless action which unleashes the risk and the harm caused, within the ambit of the objective imputation ( SSTS. 1382/2000 de 24.10, 1841/2000 de 1.12.).”
Therefore, the great difference between the eventual malice and the negligence is that, in the case of the negligence it may consist both in an action and an omission, the harmful result cannot be wished or accepted, and such action must be reasonable risky, not allowed, due to the omission of the duty of care usually demanded by the legal system, by the customs, or by the rules of coexistence.
The Supremo Court ́s sentence 2543/2022 says: “In the imprudent crime, thereby, it is produced a result socially harmful through an avoidable action which surpass the risk allowed. The consideration as a negligence of the action will be determined through the comparison between the action which was carried out and the action which was demanded by the duty of care in the concrete situation.”In order to distinguish the serious negligence from the less serious negligence, we should attend to the importance of the duty omitted, the value of the legal goods affected and the possibilities of provoking the result.
According to the aforementioned sentence of the Spanish Supreme Court 2543/2022, the serious negligence is: “the most intolerable omission of diligence, through either an active or omissive conduct, which causes a harmful result and which is normatively connected with the result.” Whereas in the same sentence the less serious negligence is defined as: “the setting-up of a risk of inferior nature, to the serious, assimilable in this case, the less serious negligence, as the infringement of the average duty before the activity which is carried out by the agent in the corresponding action to the behavior which is the object of attention and which is the main cause, with the produced result, in such way that it can be affirmed that the creation of the risk is imputable to the agent, either for his professional behavior or for an action or omission in one activity socially and legally allowed which may cause a harmful result”.
Concretely the article 152 says: “1. Who for grave negligence causes some of the injuries envisaged in the above articles will be punished, taking into account the risk created and the result produced:
1º With the punishment of imprisonment from three to six months or fine from six to eighteen months, if it is an injury of the first point of the article 147.
2º With the punishment of imprisonment from one to three years, if they are injuries of the article 149.
3º With the punishment of imprisonment from six months to two years, if they are injuries of the article 150.
If the facts were committed using a motor vehicle or a moped, will be imposed, too, the punishment of privation of the right of driving motor vehicles and mopeds from one to four years. To the effects of this point, will be regarded in any case as grave negligence the driving in which the concurrence of any of the circumstances envisaged in the article 379 determined the production of the fact.
If the injuries was caused using a firearm, will be also imposed the punishment of privation of the right to possession and carrying of weapons for a term from one to four years. If the injuries had been committed for professional negligence, will be also imposed the punishment of special disqualification for the exercising of the profession, trade or charge for a term from six months to four years.
- Who for negligence less grave causes any of the injuries to which is referred the article 147.1, will be punished with the punishment of fine from one to two months, and if it causes the injuries to which is referred the articles 149 and 150, will be punished with the punishment of fine from three months to twelve moths.
If the facts were committed using a motor vehicle or a moped, will be also imposed the punishment of privation of the right to drive motor vehicles and mopeds from thee to eighteen months.
To the effects of this point, will be regarded in all cases less grave imprudence the no qualified as grave in which the production of the fact had been determinant the commission of any of the grave infringements of the traffic rules, vehicle traffic and road safety. The assessment about the existence or not of the determination should be appreciated in motivated resolution.
If the injuries had been caused using a firearm, can also be imposed the punishment of privation of the right to possession and carrying of weapons for a term from three months to one year.
The crime envisaged in this point can only be prosecutable through the report of the offended or its legal representative.”
On the other hand, by virtue of the article 152 bis, may be imposed the punishment superior in degree in the cases of grave imprudence, if the injuries caused a those typified according to the article 152.1.2º or 3º, and in two degrees if the number of injured was very high. Concretely, the article 152 bis says: “In the cases envisaged in the number 1 of the above article, the judge or court may impose the punishment superior in one degree, in the extension which it deems correct, if the fact was of great gravity, taking into account the singular entity and relevance of the risk created and the normative duty of care infringed, and it had provoked injuries typified as crime of the article 152.1.2º o 3º to a plurality of persons, and in two degrees if the number of injured was very high.»
Let us continue. Now is the turn of the article 153. We have already seen that, in the article 147 is punished what we have denominated the basic type of injuries, we have also said that in the article 148 is punished the aggravated type, in the article 149 the specific type of injuries which cause the losing of a principal organ or limb, a grave deformity, a grave psychic injury, or the genital mutilation, and in the article 150 the losing of a member or limb not principal and the grave deformity. We also saw, that the aggravated type of the article 148 is only applicable in the cases in which we are before one of the injuries of the article 147.1, something which leaves aside the injuries which do not need medical or surgical treatment and the aggressions which do not cause injuries. Well, the article 153 may be regarded as another aggravated type but only applicable to the injuries of the article 147.2 and the article 147.3 when the offended had been the wife of the aggressor or woman bound to the aggressor by a similar relation even without living together, or a person specially vulnerable who lives with the aggressor. Besides, the article 153 will also works as an aggravated type, when the offended are descendant or ascendancy or brothers by nature, adoption or affinity, of the aggressor or of the spouse or person who lives with it, or upon the minors or handicapped persons needed of special protection who lives with it, or subjected to the parental authority, guardianship or guard of the spouse or person who lives with it, or upon person protected by other relation by which is integrated in the kernel of the family, as well as the persons who for their special vulnerability are subjected to parental custody or guard in public or private centers, in other words, the persons mentioned in the article 173.3 CP.
Concretely the article 153 says: “1. Who by any means or procedure causes into other psychic damage or an injury of lesser gravity of the envisaged in the point 2 of the article 147, or hits or maltreats another without causing injury, when the offended is or has been wife, or woman bound with it by similar relation even without living together, or person specially vulnerable who live with the author, will be punished with the punishment of imprisonment from six months to one year or community services from thirty-one to eighty days, in any case, the privation of the right to the possession and carrying of weapons from one year and one day to three years, as well as, when the judge or court deems it adequate to the interest of the minor or handicapped person needed of special protection, disqualification for exercising the parental authority, guardianship or guard up to five years.
- If the victim of the crime envisaged in the above point was any of the persons to which is referred the article 173.2, excepting the persons included in the above point of this article, the author will be punished with the punishment of imprisonment from three months to one year or community services from thirty-one to eighty days and, in any case, privation of the right to the possession and carrying of weapons from one year and one day to three years, as well as, when the judge or court deems is adequate to the interest of the minor or handicapped person needed of special protection, disqualification for exercising the parental authority, guardianship or guard form six months to three years.
- The punishments envisaged in the points 1 and 2 will be imposed in its superior half when the crime was committed in the presence of minors, or using weapons, or takes place in the shared domicile or in the domicile of the victim, or was committed breaching a punishment of the included in the article 48 of this Code or a preventive measure or of security of the same nature.
- Notwithstanding the envisaged in the above points, the Judge or Court, reasoning it in sentence, taking in to account the personal circumstances of the author and the concurring in the commission of the crime, may impose the punishment superior in degree.”
On the other hand, in the article 154 is punished another kind of behavior. In it is punished “Who quarrel between them, fighting riotously, and using means and tools which put into danger the life or integrity of the persons.” It does not seem to demand any kind of result, nor looks like from the quarrel should derive any kind of injuries in order that the behavior could be punishable, therefore it cannot be qualified as a crime of result. It is enough with the existence of a quarrel in which take part various subjects, at least more than two, and that in this quarrel ware used dangerous means or tools for the life or integrity of the persons. The article 154 says: “Who quarrel between them, fighting riotously, and using means or tools which put into danger the life or integrity of the persons, will be punished for taking part into quarrel with the punishment of imprisonment from three months to one year or fine from six to twenty-four months.”
With the article 154 we have finished with the behaviors punished as crimes of injuries, at least with the classification we have made of them in the present writing. But we have to see in relation with them, three more articles. By virtue of the article 155, will be imposed the punishment inferior in one or two degrees for the crimes of injuries that we saw above, when the consent of the offended for being injures has been given validly, freely, spontaneously and expressly, except when this consent had been given by a minor or a handicapped person needed of special protection. Concretely the article 155 says: “In the crimes of injuries, if there was consent validly, freely, spontaneously and expressly emitted by the offended, may be imposed the punishment inferior in one or two degrees.
Will not be valid the consent granted by a minor or a handicapped person needed of special protection.”
And the article 156, exempts of criminal liability, always that the consent has been given freely, validly, consciously and expressly by the victim, the cases of organ transplant made according to the law, sterilization and transexual surgery made by a doctor. Except in the cases in which the consent has been obtained through threats or deceptions, or through price or reward, or when who granted the consent was a minor or lacks the power for granting it, in which cases the consent given by them or their legal representative will not be valid.
Concretely the article 156 says: “Notwithstanding the envisaged in the above article, the consent valid, free, conscious and expressly emitted exempts from criminal liability in the cases of organ transplant made according to the law, sterilizations and transexual surgery made by a doctor, except when the consent has been obtained by means of threats or deceptions, or through price or reward, or who had granted it was a minor or had not had to power to grant it, in which cases, it will not be valid, nor the given by their legal representatives.”
And the last article is the article 156 quinquies, which only we will transcribe: “To the persons convicted for the commission of any of the crimes envisaged in the articles 147.1, 148, 149, 150 and 153 in which the victim was a minor may be imposed, besides the punishments envisaged in the corresponding articles, the punishment of special disqualification for any profession, trade or other activities, whether retributed or not, which entail a direct and regular contact with minors, for a greater term between three and five years than the duration of the freedoms privative´s punishment imposed in the sentence or by a term from two to five years when had not been imposed a punishment of imprisonment, in both cases it will be understood proportionally to the gravity of the crime, the number of the crimes committed and the circumstances that concur in the convicted person.”
– The crime of organ trafficking:
The crime of organ trafficking appears regulated in the CP as a crime of injuries, it is also true, that is result is very similar. However, the behavior that is punished is much broader, it is not exclusively punished who injured other for extracting one of its organs, but all who promote, facilitate, advertise or execute the organ trafficking. It is also true, that in the article 156 bis are described with detail each of the behaviors punished. Concretely this article says: “1. Those who by any means promote, facilitate, advertise or execute the organ trafficking will be punished with the punishment of imprisonment from six to twelve years being the organ of a living person and from three to six years when it is the organ of a dead.
To these effects, will be understood as organ trafficking:
a) The illicit extraction or obtention of alien organs.
Such extraction or obtention will be illicit if it is produced concurring any of the following circumstances:
1ª That it has been made without free, informed and express consent of the living donor in the way and form envisaged by the law;
2ª That it has been made without the necessary authorization demanded by the law in the case of the dead donor.
3ª That, in exchange for the extraction or obtention, in own or alien benefit, is solicited or received by the donor or a third party, by it or interposed person, gift or retribution of any class or is accepted offering or promise. Will not be understood as gift or retribution the compensation of the expenses or losing of income derived from the donation.
b) The preparation, preservation, storage, transport, moving, reception, importation or exportation of the organs illicitly extracted.
c) The use of organs illicitly extracted with the end of its transplant or for other goals.
- In the same way will be punished those who, in own or alien benefit:
a) solicit or receive, by their own or through interposed person, gift or retribution of any class, or accepts offering or promise for proposing or finding a donor or a receptor of organs;
b) offer or give, by their own or through interposed person, gift or retribution of any class to medical staff, public servant or private with occasion of the exercise of their work or post in clinics, establishments or consultancies, public or privates, with the end to carry out or facilitate the illicit extraction or obtention or the implantation of an organ illicitly extracted. - If the receptor of the organ consent the carrying out of the transplant knowing its illicit origin will be punished with the same punishments envisaged in the point 1, which may be reduced in one or two degrees takin into account the circumstances of the fact and the guilty.
- The punishment superior in degree of the punishment envisaged in the first point will be imposed when:
a) has been put into grave risk the life or physical or psychic integrity of the victim of the crime.
b) the victim is a minor or specially vulnerable for its age, handicap, illness or situation.
If both circumstances concur, will be imposed the punishment in its superior half. - The doctor, public servant or private person that, with the occasion of the exercise of their profession or post, made in public or private centers the behaviors described in the points one and two, or solicit or receive the gift or retribution to which is referred the letter b) of this last point, or accept the offering or promise of receiving it, will incur in the punishment for them envisaged superior in degree and, besides, in the of special disqualification for post or public office, profession or trade, for exercising any medical profession or for rendering any kind of services in clinics, establishments or consultancies, public or private, for the term of the conviction. If concur, besides, any of the circumstances envisaged in the fourth point, will be imposed the punishment in its superior half.
To the effect of this article, the term doctor comprehends the doctors, nurses and any other person which carries out a medical activity or social-medical. - Will be imposed the punishment super in degree of the envisaged in the point 1 and special disqualification for profession, trade, industry or commerce for the term of the conviction, when the guilty pertains to a criminal group or organization dedicated to carry out such activities. If concurs any of the circumstances envisaged in the in the fourth point, will be imposed the punishment in its superior half. If concurs the circumstance envisaged in the point fifth, will be imposed the punishments pointed out in this in its superior half.
When they are the bosses, managers or persons in charge of such organizations or groups, will be applied to them the punishment in its superior half, which can be increased to the immediately superior in degree. In any case will be increased the punishment to the immediately superior in degree if concurs any of the circumstances envisaged in the fourth point or the circumstance envisaged in the fifth point. - When according to the established in the article 31 bis a legal person is liable of the crimes comprehended in this article, will be imposed the punishment of fine from the triple to the quintuple of the benefit obtained.
Taking into account the rules established in the articles 66 bis, the judges and courts may, likewise, impose the punishments gathered from the letters b) to g) of the seventh point of the article 33. - The provocation, conspiracy and proposal for committing the crimes envisaged in this article will be punished with the punishment inferior in one or two degrees to what corresponds, respectively, to the facts envisaged in the above points.
- In any case, the punishments envisaged in this article will be imposed without prejudice of those which correspond, in their case, for the crime of the article 177 bis of this Code and the rest of the crimes committed.
- The convictions of foreigns judges and courts for crimes of the same nature which the envisaged in this article will produce the effects of recidivism, except when the criminal record had been cancelled or can be cancelled according to the Spanish Law.»
– The crime of incitement to self-injury of minors and handicapped:
Crime regulated in the article 156 ter, in it is punished the distribution through any means of contents aimed to promote or incite the self-injury of minors and handicapped persons.
In the application of this article we have to take into account too, the envisaged in the Law 34/2002 of 11 July, of services of the information society and electronic commerce.
Concretely the article 156 ter says: “The public distribution or diffusion through internet, the telephone, or of any other technology of the information or of the communication of content specifically destined to promote, encourage or incite to the self-injury of minors or handicapped persons needed of special protection will be punished with the punishment of imprisonment from six months to three years.
The judicial authorities will agree the necessary measures for the withdrawing of the contentes to which is referred the above point, for the interruption of the services which mainly offer these services or for the blocking of both when they reside abroad.»
And though it does not pertain to this section, we have to mention it, the article 156 quater allows that to the persons convicted for the commission of one or more crimes of this Title II, when the victim is some of the victims mentioned in the second point of the article 173, can be imposed besides the punishment of watched freedom.
The article 156 quater says: “To the persons convicted for the commission of one or more crimes comprehended in this Title, when the victim is some of the persons to which is referred the point two of this article 173, can be imposed, too, a measure of watched freedom.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com