“Of the sexual aggressions” is how is entitled the Chapter I of the Title VIII of the Spanish Penal Code (CP), a title which has as object the crimes against the sexual freedom, and which was recently reformed by the Organic Law 10/2022, of 6 September, of integral guarantee of the sexual freedom (LO 10/2022). The reform has brought with it the review of the punishment imposed in numerous sentences, either in the stage of execution or appellation, for with it have been changed the punishments associated with some crimes of the Title VIII, what has opened the door to the hope of a lot of convicted to a reduction of their initial punishment. But now we will not talk about this, later we will have the opportunity in the point concerned with the LO 10/2022.
The Chapter I which is the object of commentary and which is concerned with the sexual aggressions is made up of three articles, all of them will be commented in the same point, 1) The sexual aggressions of the Chapter I, however, the analysis of this Chapter I cannot end here, for it would be incomplete, this is why we will continue talking about: 2) The difference between authorship, necessary cooperation and complicity; 3) When there is continuous crime; 4) The value of the declaration of the victim for destroying the presumption of innocence of the accused; 5) The recognition of the accused during the stage of investigation; 6) How affects to the procedure the semi-public character of the crimes of sexual aggressions; 7) The Organic Law 10/2022 of 6 September, of integral guarantee of the sexual freedom, and; 8) The moral damage derived from the crime.
1) The sexual aggressions of the Chapter I:
As we have announced at the beginning, the Chapter I is made up of three articles, the first two concerned with two different types of sexual aggressions, being the difference between them in whether there has been carnal access, and a third which contains seven different aggravating factors which are applicable to the first two, and which consequently their concurrence will suppose a harshening of the punishment which should be imposed for committing any of these two crimes.
The basic type of the crime of sexual aggression is regulated in the article 178, which is also composed of three points, but before analyzing is content the best will be to see what it says:
“Article 178.
1. Will be punished with the punishment of imprisonment from one to four years, as liable for sexual aggression, who commits any act which attempt against the sexual freedom of another person without its consent. Only will be understood that there is consent when it has been freely manifested through acts which, according to the circumstances of the case, clearly express the will of the person.
2. To the effects of the above point, it will be regarded in any case sexual aggression the acts of sexual content which are carried out by means of violence, intimidation or abuse of a situation of superiority or of the vulnerability of the victim, as well as those executed upon persons who are deprived of sense or of whose mental situation has been abused, or those carried out when the victim has annulled by any cause its will.
3. The sentencing organ, reasoning it in the sentence, and always that do not concur the circumstances of the article 180 may impose the punishment of imprisonment in its superior half or fine from eighteen to twenty-four months, taking into account the minor entity of the fact and the personal circumstances of the guilty.”
If as we have said, the basic type of the crime of sexual aggression is regulated in the article 178, talking properly it is regulated in its first point. In it, is punished any act which attempts against the sexual freedom of a person without its consent. As we can clearly see the legal good protected is the sexual freedom of the person, without being described what are the behaviors which can damage it, hence we should understand that according to this point may be punished any act, without limitations, which attempt against the sexual freedom of another person. Into what we have to put the due emphasis, like the first point of this article 178 is doing, is in the lack of consent. For the act which is punished and therefore attempting against the sexual freedom of the victim, will be only that carried out without the consent of the this. In the own first point of the article 178, we find the scope given by the legislator to this consent, “Only will be understood that there is consent when it has been freely manifested through acts which, according to the circumstances of the case, clearly express the will of the person.” Thus the consent may be expressed in any way, either express or tacit, by word or through acts which indicate that is being given, the important is that according to the concrete circumstances in which such consent is given, can be inferred that it is being granted and not the contrary.
Therefore, whether this consent exists or not, is the determinant factor when we have to analyze if there has been a sexual aggression, this is why the Spanish courts have pay a special attention to it, saying for instance that, can be granted for some acts but not for others, or that it can be removed at any time, or that it can have been given to some person but not to another. Let us see an example:
– Spanish Provincial Court of Navarra´s sentence number 30/2023:
“There has to be remembered that in relation with the sexual acts carried out by a person there are some nuances:
1. The circumstance that a woman wants to carry out them with a person does not mean that she has to carry out them with another person who appears in the place.
2. Or if a woman consists a sexual act it does not mean that she consists for more occasions, even with the same person, or with another.
3. The woman has sexual freedom to consent a sexual act and to deny the following.
4. That a woman has accepted a sexual act with a person does not mean that she accepts another sexual act with it or another person.
5. There exists no presumption of perpetual consent of the woman in the sexual acts, but each one of them should be “renewed” attending to the circumstances of the case.
6. There exists no subjectivism of the author by which the woman consents the sexual act. It has to be evidenced attending to the circumstances of the case…”.
In particular, regarding the lack of momentary consent, has declared the Spanish Supreme Court that “transforms the sexual action into criminal from the moment that the lack of consent is manifested…such revocation “fulfills the criminal type envisaged in the article 178 of the CP. It supposes a grave attempt to the sexual freedom of the woman that, in this moment, has manifested her desire of interrupting a sexual intercourse initially consented.” (Resolution of the Spanish Supreme Court dated 24 February 2022, quoting the above sentences 142/2013 of 26 February and 17/2021 of 14 January.)”
The second of the points of the article 178, tries to clarify the said in the first point, or at least it tries to be more precise when delimiting the scenarios in which we are before a crime of sexual aggression. For it says that “in any case” will be regarded sexual aggressions the acts committed “employing violence, intimidation or abuse of a situation of superiority or of vulnerability of the victim, as well as those executed upon persons who are deprived of sense or of whose mental situation has been abused, or those carried out when the victim has annulled by any cause its will.” Therefore, when any of these circumstances concurs, a judge or court should declare, without any doubt, the existence of a crime of sexual aggression.
Now we should try to determine the scope of each of these scenarios. For example in relation with the violence the Spanish Provincial Court of Navarra´s sentence number 30/2023 says: “For violence has been understood the employment of physic force, and like the Spanish Supreme Court number 1546/2002, of 23 September, it has been said that it is equivalent to attack, coercion or material imposition, and it implies a real aggression more or less violent, or through hits, pushing, tears, in other words, a force enough to overcome the will of the victim… (Sentence of the Spanish Supreme Court of 4 July 2019)”.
There has been also discussion about the resistance of the victim to such violence, to be criminally relevant, later the same sentence aforementioned adds: “Such doctrine adds that “…It is enough with the negative of the victim, since for the crime of sexual aggression it is enough with the fact that the author employs intimidatory or violent means… the simple opposition by the victim to the sexual act, overcome by the minimum act of force or intimidation by the active subject, has to derive the qualification of sexual aggression” (Sentence of the Supreme Court of 11 May 2022).
In the same sense, such Court stresses that “the jurisprudence of this Chamber has established that the violence or intimidation employed in the crimes of sexual aggression have not to be of such degree which reflect irresistible characters, unsurmountable or of unusual gravity. It is enough with being enough and effective in the concrete occasion for achieving the end proposed, paralyzing or inhibiting the will of resistance of the victim and acting in the adequate causal relation, either for material surmounting or for conviction of the inutility of prolonging an apposition of which, not driving to a positive result, can derive graver damages. Thus, the legal qualification of the tried acts has to be done taking into account the active subject (Spanish Supreme Court´s sentence of 19 January 2023).”
Therefore, the relevant for determining if whether there has existed violence, will not be the resistance shown by the passive subject to it, but the violent acts carried out by the active subject of the crime.
On the contrary, when we talk about intimidation, rather than a physical aggression like with the violence, we are before a sort of psychological aggression, the use of the fear created in the victim, for submitting it to the purposes of the aggressor. Regarding the above the Spanish Supreme Court´s sentence number 534/2023 says: “In the “intimidation”, vis compelling or vis psychic, the victim is compelled to submit to the lascivious purposes of the agent through the psychological coercion exercised upon the victim, and which suppose the announcement of an imminent or grave damage, personal and possible, rational and founded, which arises in the offended a feeling of fear, anguish or distress before the threat of a real or imaginary damage.” And later continues the same sentence, “the doctrine points out that the intimidation, according to the Spanish Royal Language Academy’s dictionary, is the equivalent to “cause or provoke fear”, it is the so-called vis psychological and it consists in threatening with a damage through words, gestures or another procedures, which should provoke fear in the target, of which takes advantage the agent for committing the aggression.”
On the other hand, the abuse of a situation of superiority or vulnerability of the victim, has been understood as a situation of unbalance between the position of the active subject and the passive subject of the crime. Situation of unbalance, which may spring from different motives, as work, family or age hierarchy. In this sense the Spanish Supreme Court´s sentence number 152/2023 states: “It is usually shaped as an scenario of notorious unbalance between the positions of the parties, in which one of them is in a manifest situation of inferiority that restrains in a relevant way its capacity of freely deciding and the other consciously takes advantage of its position of superiority, either work-releted, educational, family, of age or another kind, conscious that the victim has restrained its freedom of deciding upon the sexual activity imposed. In this way, the special situation of the victim has to be taken into account for assessing the existence of the disproportion or asymmetry which defines the abuse of superiority and the prevailing.”
The typical prevailing demands a relation of superiority of the active subject which has to be utilized by the first for the carrying out of the attempting act against the sexual liberty.
Insofar as the first may be objectively proved, the second, the taking advantage of the situation, has to be rationally inferred by the judicial organ and has to be expressed in the sentence (Spanish Supreme Court´s sentence number 344/2019 of 4 July and 187/2020 of 20 May.)”
We have to talk about two more scenarios which implicitly suppose the qualification of the facts as sexual aggression. When the acts attempting against the sexual freedom are executed upon persons which are deprived of sense or of whose mental situation is abused and those which are committed when the victim has annulled by any causes its will. In the first are included, all the cases of mental illness whether congenital or acquired, and the latter, all those in which have been used drugs or any other type of medicine which momentarily annuls the capacity to decide of the victim.
Lastly, the article 178 ends with a third point, which allows to the sentencing judge or court to impose the punishment of imprisonment in its inferior half or of fine, always that the circumstances of the article 180 do no concur, and that according to the minor entity of the fact and the personal circumstances of the guilty are applicable. This possibility seems reserved to the sexual aggressions of little importance, and rather to the envisaged in the first point of the article 178 than to the envisaged in the second point of the same article, for the lack of violence or intimidation, or abuse of the special situation of the victim.
In any case, the judge or court should duly motivate in the sentence why has taken the decision of diminishing the sentence taking into account the circumstances of the case, without being possible to take this decision without a reasonable motive.
The next article we have to talk about, is the article 170. In it is regulated the known as crime of rape, which is only a sort of sexual aggression, and as such it is characterized by the carnal access.
The article 179 says:
“When the sexual aggression consists I carnal access through vaginal, anal or buccal access, or introduction of corporal members or objects through any of the two first accesses, the liable will be punished as convicted for rape with the punishment of imprisonment from four to twelve years.”
If we attend to how the article 179 begins, we see how the crime of rape may be committed by any of the variables of sexual aggression proposed by the first and second point of the article 178, in other words, by any act which attempts against the sexual freedom of the victim and without having its consent, or through any other act which implicitly has the qualification of sexual aggression, like in the cases of use of violence and intimidation, for evidencing the lack of consent of the victim. Therefore, to the crime of rape will be applicable all we have seen in relation with the crimes of sexual aggression of the article 178, like the scope of the consent, or the use of violence, intimidation or prevailing for committing the crime. The important for being able to qualify the facts as a crime of rape, will be the carnal access, which can be through three different accesses, vaginal, anal or buccal, and making use of corporeal means or objects in the first two ways of carnal access.
Being the characteristic feature of the crime of rape, this carnal access, the courts have been clear on appreciating its concurrence even in the slightest cases, being enough for the existence of the crime a minimum access to any of the three accesses which characterize it, without, therefore, being demandable a determined intensity or duration in the carnal access, any will be valid for being before a crime of rape.
The Provincial Court´s sentence of Madrid 1661/2023 says regarding the above: “The carnal access, through vaginal, anal, or buccal access, fulfils the penal type when is achieved the copulation where is united the genital organs of the man and woman, by means of the penetration of the penis into the vagina (Spanish Supreme Court´s sentence 1222/2000 of 7 July). A different question which has been, also, recently analyzed by the Supreme Court (Spanish Supreme Court´s sentence of 27 May 2021, although referred to the crime of the article 179 CP), on pointing out about this requisite that, “we are before an act of penetration, before the contact of access to the vaginal area for slight that it can be, and that cannot be demanded a “total access”, being enough with the access to the internal area of the feminine sex”, pointing out that criteria that the “jurisprudence does not demand in the penal type an absolute penetration, nor total, but being partial there already exists sexual aggression of the article 179 CP, for rape, and not for the sexual aggression of the article 178 CP.”
The last article of which we should talk, is the article 180. By means of the article 180 are increased the punishments envisaged in the article 178 and 179, when during the commission of any of the sexual aggressions envisaged in them concur any of its various circumstances. The article 180 says: “The above circumstances will be punished with the punishment of imprisonment from two to eight years for the aggressions of the article 178.1 and from seven to fifteen years for the crimes of the article 179 when any of the following circumstances concur, except when the same circumstances have been taken into account for determining that concur the elements of the crimes typified in the articles 178 or 179:
1ª When the facts are committed by the joint action of two or more persons.
2ª When the sexual aggression has been preceded or accompanied of a violence of extreme gravity or of acts which have a particular degrading treatment.
3ª When the facts are committed against a person which is in a special situation of vulnerability as consequence of its age, illness, handicap, or for any other circumstance, except the envisaged in the article 181.
4º When the victim is or has been the espouse or woman bounded by analogous relation of affectivity, even without living together.
5ª When, for the execution of the crime, the person liable has prevailed by means of a situation of cohabitation or family relationship, for being ascendant, or brother, by nature or adoption, or similar, or of a relation of superiority with regard to the victim.
6ª When the liable makes use of weapons or another means equally dangerous, susceptible of producing the death or any of the injuries envisaged in the articles 149 and 150 of this Code, without prejudice of the envisaged in the article 194 bis.
7ª When for the commission of this facts the author has annulled the will of the victim providing it medicines drugs or any other substance either natural or chemical suitable to that effect.
2. If two or more of the above circumstances concur, the punishments respectively envisaged in the point 1 of this article will be imposed in their superior half.
3. In all the cases envisaged in this chapter, when the liable has made use of its condition of authority, agent of this or public servant, will be imposed, besides, the punishment of absolute disqualification from six to twelve years.”
Now, we should stop at the first of the above aggravating factors, “When the facts are committed by the joint action of two or more persons”, since it has needed of certain effort by the Spanish courts when has been interpreted. They have distinguished the scenarios in which an aggression has been committed by two persons, from the scenarios in which has been committed by more of two. It has been said that, when in a sexual aggression participate two persons, one as author and the other as necessary cooperator, this aggravating factor will be only applicable to the author of the facts, for otherwise the same behavior would be punished two times, one for applying the punishment of the article 178 or article 179 as necessary cooperator, and the other, for applying the aggravating factor. On the contrary, the thing changes when in the sexual aggression participate more than two persons, for in those cases, the aggravating factor is applicable to all of them, for not deriving directly of the participation of one necessary cooperator, but from the participation of more than one. This would be the meaning of the said in the own article 180, when it says “except when the same have been taken into consideration for determining that concur the elements of the crimes typified in the articles 178 and 179”.
Let us see if with this excerpt from the Spanish Supreme Court´s sentence number 534/2023 the above can be clarified: “In the same sense, the Spanish Supreme Court of 14 May 2020, number 145, stresses with clarity: “In any case, we already said in the Spanish Supreme Court´s sentence 338/2013 of 19 April, that is maintained the same interpretation sustained by the above quoted resolutions, and goes further distinguishing two scenarios:
1.- The first, in which only two persons participate, the author and the necessary cooperator, in this scenario the aggravating factor will be applied only to the author, for in case of being also applied to the necessary cooperator we are before a doble assessment of the same behavior, on the one hand for appreciating the cooperation, and on the other hand, for applying the aggravating factor; and
2.- The second scenario, referred to those cases in which more than two persons intervene, where can be applied the aggravating factor to all the participants, for in this occasion the cooperator carries out its contribution to a fact that is already aggravated by different elements than its own behavior, like in the cases of gang rape, affirming the quoted resolution that: The article 180.1.2º of the CP envisages an aggravation of the punishments when the facts punished as crime in the article 179 are committed by the joint participation of two or more persons.
The majority of the jurisprudence has understood that on being the cooperator someone who collaborates with the fact of another, in these cases will always act jointly two persons, in a way that could be understood that being a cooperator of a crime of sexual aggression, in all the cases would have applied the aggravation envisaged in the article 180.1.2.2º quoted. In other words, the acts of the cooperator, by their own existence, will always be aggravated. But it would suppose then the doble assessment of the same behavior, on the one hand for appreciating the cooperation and on the other, without requiring other elements, for applying the aggravation. This would occur in the cases where only two persons participate, the author and the cooperator, and not when more intervene, for then the cooperator carries out a contribution to a fact which is already aggravated by something different from its own contribution. To the former would be applicable the aggravation, for it is perfectly imaginable an author without cooperator. But it is not the same for the cooperator, for, always, for its own nature, supposes the existence of one author (whether criminally liable or not).
Thereby, in those cases, where only two persons act, one as author and another as cooperator, the aggravation of the article 180.1.2º is only applicable to the author”. But it is not the case where three participate.”
Summing up, when in a sexual aggression two persons participate, one as author and the other as necessary cooperator, this aggravating factor will be applicable only to the first of them. On the contrary, when more than two subjects participate, some of them like authors and some of them like necessary cooperators, the aggravating factor will be applicable to all of them.
Another aggravating factor which should be better explained, is the sixth, “When the liable makes use of weapons or another means equally dangerous”. Here the courts have agreed to use this aggravating factor, only in the cases that the weapon has been used either for attacking the victim, or when it has been approached to any sensible part of the body, but not in the cases in which it has been merely shown. The Provincial Court of Teruel´s sentence number 1011/2022 says: “The basis of such aggravation is the greater objective dangerousness that the use of the weapon or other means may entail for the indemnity of determined goods as the life, the health or the physical integrity. For appreciating the concurrence of this aggravation is necessary:
a) to prove the suitability of the weapon employed for putting into risk the life or integrity, for they have to be goods susceptible of causing the death or some of the injuries envisaged in the article 149 and 150 CP.
b) This use has to represent, for the consideration of the aggravated type, an objective increase of the danger for the life or integrity, it is not enough with the mere wielding, but it is necessary to analyze the way in which it has been used. This use has to represent, for agreeing the aggravating type, an objective increase of the danger for the life or integrity, it is not enough the mere wielding, or the exhibition which serves for intimidating for appreciating the mere aggravation.
The prohibition of the doble assessment –“non bis in idem”- and the principle of proportionality exclude that the mere exhibition of a weapon or dangerous tool is assessed for integrating the typical result of the intimidation and also for filling the typic element of the “use of weapon” that is demanded by the aggravated subtype. Analyzing the jurisprudence, has been applied the aggravated type for putting scissors in the neck for maintaining sexual relations Spanish Supreme Court´s sentence number 1302/09 of 9 December, or a knife in the Spanish Supreme Court´s sentence number 843/08 of 5 December and 1069/07 of 28 of 1991/2000, of 19 December; Spanish Supreme Court´s sentence number 752/2002, of 29 April and Spanish Supreme Court´s sentence number 1667/2002 of 16 October; or in the side or the abdomen (Spanish Supreme Court´s sentence number 752/2002). The aggravating factor has not been considered with the mere exhibition of the knife Spanish Supreme Court´s sentence number 330/09 of 1 April.
Therefore, taking into account that the relevant is that the use of the weapon creates not only an intimidating effect but a potential risk of damaging the physical integrity, “evidencing more clearly the aggressive purpose of the author and closely feeling the offended the danger approaching to him” (Spanish Supreme Court´s sentence number 606/11 of 7 June and 96/06 of 7 February).”
And later, the same sentence continues: “The Spanish Supreme Court points out in its sentence number 15/2006 of 13 January, that “The application of the art. 180.1.5º CP restrictively is found, usually, with the exclusion of those cases in which the weapon or dangerous means is used only to be exhibited in a way that the victim is intimidated on knowing the element which can be used by its aggressor. To show the firearm, the white weapon or the useful tool for other things but which can cause injuries by its inadequate use, as a screwdriver, a hammer, or simply a stick, and not use it after the aggression, it is not enough for applying the aggravating factor examined. However, when this weapon or dangerous means is used to attack, even when the attack does not reach the body of the victim, the fifth circumstance has to be applied. And the same has to be done when the tool is approached to a especially sensitive area being able to cause the death or grave injuries, like when is putted a white weapon or similar means close to the neck or abdomen, or a pistol aimed to the head, thorax or also de neck or abdomen. This is why, we have repeatedly said that the important to these effects is not the concrete tool used, but the use given to it, or the concrete danger created with it.”
Before concluding with this point, we have to clarify something. The aggravating factors envisaged in this article 180, may coincide with the typical requisites of the article 178.2 in order to be able to appreciate the existence of a crime of sexual aggression, this is why the own article 180 says “except when the same circumstances have been taken into account for determining that concur the elements of the crimes typified in the articles 178 or 179”. This is clearly visible, in the case of the third aggravating factor, since the article 178.2 and the article 180 seem to coincide, though using different words, in the scenario regulated.
2) The difference between authorship, necessary cooperation and complicity:
Let us explain first in abstract, what are the differences between them, and later we will do the same applying them to the concrete case of the sexual aggressions.
According to the article 28: “Authors are who carry out the fact by their own, jointly or by means of another who they use as an instrument.
Will be regarded as authors too:
a) Those who directly induce another to execute it.
b) Those who cooperate in its execution with an act without which it would not have been executed.”
An author is who carries out the typical act, either by its own, or jointly with others, or by means of another who they use as an instrument (art. 28 CP), but always with the whole domain of the action typical of the authorship.
On the other hand, the necessary cooperator of the letter b) of the article 28, is distinguished from the coauthor due to the fact that whereas the coauthor has the absolute domain of the action, being a functional coauthorship if there exists a division of functions between those who intervene, the necessary cooperator executes an essential act for the execution of the crime, its participation has a subordinate character with respect to the author of the crime. Or how the Spanish Supreme Court´s sentence number 3096/2022 remembers to us: “there exists necessary cooperation when there are a collaboration with the direct executor providing a behavior without which the crime would not have been committed, when there is a collaboration through the contribution of something which is not easy to obtain in another way, or when who collaborates may impede the commission of the crime.”
And the accomplice, like the necessary cooperator, does not have the domain upon the fact, what distinguishes both figures is the relevance of the contribution. It makes a favoring contribution, but it is not essential for the commission of the crime, contrary to what happens with the necessary cooperator. Let us see this interesting excerpt from the Spanish Supreme Court´s resolution number 10665/2022: “Like the sentence of this Chamber 666/2016 of 21 July, quoting the previous number 508/2015 and 905/2014 “the accomplice… is an auxiliary of the author, who lacks the domain upon the fact, but who contributes to the production of the crime through the employment of means, physical or psychical, aimed to the carrying out of the project, participating in the common purpose by means of their voluntary contribution, concreted in acts (or omissions) of secondary character. It makes a favoring contribution, not necessary for the development of the iter criminis, but which heightens the risk of the production of the result. It is a participation not essential, accidental and not determinant, of inferior or secondary character”.
Once we have these concepts clear, we are going to apply them to the concrete case of the sexual aggressions. This distinction is relevant, for the condition of necessary cooperators which has been given to all those who has been present during a sexual aggression. It has been said, that their contribution has been essential for the consummation of the fact, since their presence has contributed to create this ambient of intimidation which has provoked the submission of the victim of the crime.
Let us see the said by the Spanish Supreme Court´s sentence number 534/2023: “Thus in the Spanish Supreme Court´s sentence number 1142/2009 of 24 November, was pointed out that it was the same the preconceived plan than the group acts simultaneous to the act and not premeditated: “The figure of the necessary cooperation in the crimes of sexual aggression is contemplated in multiple sentences, for example the Spanish Supreme Court´s sentence number 1291/2005 of 8 November says: “Ultimately, this concept of necessary cooperation is extended also to the cases in which, even not existing, a premeditated plan, is carried out the rape in the presence of persons without previous agreement, but with a conscience of the action committed. In these cases the intimidatory effect may be produced by the simple presence or concurrence of various persons, different from who materially consummates the rape, since the existence of the group can produce in the victim an state of environmental intimidation.»
Later the same sentence continues: “In the same sense, the Spanish Supreme Court´s sentence number 344/2019 of 4 July 2019, insists in delimiting the concept of environmental concept: “The Sentence number 1291/2005 of 8 November 2005, Rec. 263/2005, makes reference to the so-called “environmental intimidation”, where is stated that: “A conviction must punish all those who in a group participate in these cases of multiple sexual aggressions and because the presence of other or other persons who collude with who commits the forced sexual act forms part of the intimidating framework which weakens or even annuls the will of the victim for being able to resist, being, such presence coordinated in joint action with the main actor, integrating the figure of necessary cooperator of the point b) art. 28 CP. In these cases each is author of the number 1 of the art. 28 for the carnal act committed by it and necessary cooperator of the point b) of the same article, regarding the rest which its presence has favored (Spanish Supreme Court´s sentences of 7 March 1997 and number 481/2004 of 7 April).
Ultimately, this concept of necessary cooperation is extended also to the cases in which, even existing a premeditated plan, it is produced the rape in the presence of other persons, without previous agreement, but with conscience of the action committed by it. In these cases the intimidating effect may be the result of the simple presence or concurrence of various persons, different from who materially consummates the rape, since the existence of the group may create in the victim a state of environmental intimidation.”
Later, it explains why those present during a sexual aggression have to be regarded as necessary cooperators and not like accomplices: “On the other hand, this Chamber has also repeatedly declared that the complicity is distinguished from the necessary cooperation in the secondary character of the intervention, without which the criminal action might have been committed too, for not being its contribution of necessary character, either in the own sense, or in the sense of being easily substitutable for not being a scarce good. The complicity requires a participation merely accessory, not essential, which has been interpreted in terms of concrete dispensability or related with the case tried, not in terms of hypothetical committing circumstances, there should exist between the behavior of the accomplice and the execution of the infringement a contribution which although is not necessary, facilitates the commission of the crime by the main author (Spanish Supreme Court´s sentences number 676/2002, of 7 May; 1216/2002 of 28 June; 185/2005 of 21 February; 94/2006 of 10 January; 16/2009 of 27 January; 109/2012 of 14 February; and 165/2016 of 2 March).»
Hence, how is repeated by the Spanish Supreme Court the contribution to the rape creating the violence or environmental intimidation is essential and not accessory, it constitutes a scarce good of difficult obtaining and besides it contributes to the execution of the result.”
3) When there is continuous crime:
The continuous crime is defined in the first point of the article 74: “1. Notwithstanding the above article, who, in execution of a premeditated plan or taking advantage of similar occasion, commits a plurality of actions or omissions which offend one or various subjects and infringe the same penal precept or precepts of the same or similar nature, will be punished as author of a continuous crime or misdemeanor with the punishment envisaged for the gravest infringement, which will be imposed in its superior half, being able to reach up to the inferior half of the superior punishment in degree.”
Like we can observe from what is said in this first point of the article 74, there exists a great difference between qualifying the facts as one only act which is executed as an action, as a continuous crime of the article 74, or even as a real concurrence of crimes of the article 73. Since in each of these cases, the punishment will be different.
Let us now see, what has been said by our courts, regarding the continuous crime when we are before a sexual aggression. In the Provincial Court of Teruel´s sentence number 1011/2022, we find the requisites for appreciating it, it states that: “The already old Sentence of the Spanish Supreme Court of 2 April 2001 establishes the requisites of the continuous crime of sexual abuses which have been maintained until now: “plurality of facts, distinguishable, subjected to trial; existence of a premeditated plan or taking advantage of the same occasion; unitary malice; identity or, at least, analogy of the precept infringed; homogeneity of the way of execution; and the same passive subject.”
The Provincial Court of Navarra´s sentence number 30/2023 is even more clear, for it helps us to distinguish between the three scenarios which we mentioned before: “The Spanish Supreme Court´s sentence of 15 January 2019, quoting previous sentences which reflect such doctrine, that there exists “the natural unity of action when the criminal activity is repeated in the same place and within scarce period of time, always with the same purpose and affecting to the same passive subject, this is “when the typical corporal movements are repeated within a same space and in a narrow period of time”, in other words, when there are two or more penetrations in the same situation and context…the carnal access for the different accesses of the article 179 CP, practiced in the same act, with the same person and with the same sexual intention, constitutes only a crime (Spanish Supreme Court´s sentence number 42/2007 of 16 January). The reason is explained in different sentences (Spanish Supreme Court´s sentence number 396/2004 of 26 May), because before an uninterrupted sequence, where progressively are attacks against the sexual freedom of the victim, in a way in which is not possible to distinguish different ambits of space and time, being consecutives the sexual acts, must be regarded the different penetrations as only one action…there will exist a natural unity of action when the crime is repeated in the same place and in a scarce period of time, always under the same purpose and affecting the same passive subject.
In such case, the criminal act cannot be divided into as much facts as repetitions of the same behavior, being affirmed the existence of only one criminal infringement…When such requisites concur, we cannot talk about a plurality of crimes, nor of a continuous crime, but of only one crime which absorbs or consumes through the gravest criminal infringement appreciated the other which results more slight…” And concludes that quoted sentence of 15 January 2019, pointing out that “Ultimately the recent Spanish Supreme Court´s sentence number 351/2018 of 11 July, quoting the Spanish Supreme Court´s sentences number 463/2006 of 27 April and 305/2017 of 27 April, distinguishing three different situations, without prejudice of others that the sociological reality can provide:
a) When there exists no continuity between one and other access, producing an immediate interaction, either for intimate dissatisfaction of the sexual desire of the active subject or because the criminal act responds to the same manifestation or erotic spring, although are made different penetrations through the same or different access (vaginal, anal or buccal) we will be before only one crime and the repetition may have consequences in the determation of the punishment.
b) When the acts of aggression or sexual abuse are carried out between the same main characters and the repetition of single acts is prolongated during the time, but it takes place under the same violent or intimidating situation, we will be before a scenario of criminal continuity.
c) Finally, when the interaction of the sexual acts (usually aggressive) is distinguishable in the time and consequence of different aggressions or threats for submitting in each concrete case the will of the passive subject, we will be before a real concurrence of crimes….”
4) The value of the declaration of the victim as a proof capable of destroying the presumption of innocence of the accused:
We have to depart from the base that, the only proofs with capacity for destroying the presumption of innocence of the accused, are the practiced in a trial under the principles of orality, contradiction, publicity and immediacy. Although it is also true, that there exist exceptions to such general rule, as the preconstituted proofs and the anticipated proofs (article 714 and article 730 of the Spanish Penal Procedure Act, hereafter LECrim).
One of the main proofs which will be practiced during the trial, is the statement of the victim of the crime. We said “main”, because usually it will not be the only proof practiced during the oral trial, but it will be accompanied of others, as the statement of the witnesses, the police who was part of the previous investigation, or the experts. The problem arises, when the only proof that exists is the statement of the victim of the crime, something which is not strange in the crimes of sexual nature, for with frequency is sought the solitude of the victim for committing them. There exists a problem, because in these cases the right constitutionally recognized of the accused to the presumption of innocence (art. 24 CE) may be infringed, and with it, the principle in dubio pro reo, which although not expressly recognized in the Spanish Constitution, has been understood included in this right to the presumption of innocence, as the right of the accused to be acquitted in the case that there exist doubts in the Court concerning the guilty of the accused.
Regarding the above, the Provincial Court of Madrid´s sentence number 2008/2023 says: “In this sense, we should begin remembering that, the prosecution has the burden of proving the crimes object of accusation and the participation in them of the accused, since the last is protected by the presumption of innocence recognized in the article 24 of the Constitution.”
Later the same sentence continues: “Nevertheless, the same jurisprudence also points out that, among others in the Sentence of 3 October 2003 (Sentence number 1246/2003) and of 16 November 2003 (Sentence number 1317/2004), that when the statement of the witness is the only proof which exists, it is demandable a careful assessment by the judicial organs, with the end of assessing its credibility, for in such cases there exists an extreme situation of risk for the constitutional right of innocence, being more extreme such risk if the alleged victim is who began the process through the corresponding report and later sustains it along the procedure. And adds the quoted sentence that, it is possible to reach even a more extreme situation, in those cases in which the statement of the accuser is not only the only proof of the alleged authorship of the accused, but also of the own existence of the crime, of which does not exist any proof, aside from the own statement of the accusation.”
However, it has also been said by our jurisprudence that, the statement of the victim of a crime can be also enough for destroying the presumption of innocence of the accused. Though due to the dangers which we have previously pointed out, the jurisprudence has also developed some requisites, which though not of obliged fulfillment, help the judges and courts in their work analyzing the truth of the statement of a victim. According to the Provincial Court of Navarra´s sentence number 30/2023 these requisites are: “Analyzing with more detail the Supreme Court these cautions guaranteeing the veracity of the victim´s statement, points out that them are concreted in the following:
“A) Absence of subjective incredibility, which may result from its characteristics or its personal circumstances. In this point, two are the relevant subjective aspects:
a) Its own physical or psychoorganic characteristics…
b) The existence of wrongful purposes which may result from the fantasies of the victim, as a possible motive of its statement, or from the previous relationship between accused and the victim, which reflects motives of hate or resentment, revenge or enmity, that taint the sincerity of the statement making doubtful its credibility, and creating a state of uncertainty and suspicion incompatible with the formation of a conviction about the guilty of the accused upon a solid base; but without also forgetting that though all the persons who report a crime may have an interest in the conviction of the reported, not for this is not valid its statement (Sentence of 11 May 1994).
B) Credibility of the statement, based in the logic of its statement and the supplementary support of objective data:
This supposes:
a) The statement of the victim has to be logical in itself, in other words, not contrary to the rules of the common logic or common experience, what demands to assess whether its version possible, or whether it is not due to its own content.
b) The statement of the victim has to be surrounded by external corroborations of objective character in the procedure; it means that the own fact of the existence of the crime is supported by some data added to the pure subjective statement of the victim…
The objective data of corroboration can be different: Injuries in crimes which usually produce them; statements of other persons about facts or data which without properly being the crime are related with some fact whose corroboration contributes to the veracity of the statement of the victim; expert´s reports about aspects of similar corroborating value; …
C) Persistence in the accusation, which should be maintained in the time, and exposed without ambiguities or contradictions.
This factor of assessment supposes:
a) Persistence or the absence of changes in the successive statements given by the victim without contradicting or belying itself…
b) The statement has to be precise, without ambiguities, generalities or vaguenesses…
c) Coherence or absence of contradictions, maintaining the statement the necessary logical connection between its different parts.”
Although it can be regarded as a requisite like any other, since it is located along the others and it is not stressed in any way. It is possible to find jurisprudence which grant a special relevance to the requisite included in the letter b) within the so-called credibility, in other words, “The statement of the victim has to be surrounded by external corroborations of objective character in the procedure; it means that the own fact of the existence of the crime is supported by some data added to the pure subjective statement of the victim…” Such special relevance consists in which it can be regarded as an essential requisite, and therefore, not remediable by the strengthening of others, what in short means that, the statement of the victim is not enough to destroy the presumption of innocence of the accused, if it is not accompanied by other proofs of objective character which corroborate it.
A good example of the above is the Provincial Court of Madrid´s sentence number 2008/2023: “it has been also usually demanded, specially in the more recent jurisprudence, that the statement of the victim should be surrounded of external corroborations of objective character found in the procedure, adding that it means that the own fact of the existence of the crime has to be supported by some added data asides the pure subjective manifestation of the victim, being necessary to asses adequately this circumstance in crimes which do not leave material proofs or evidences in their commission, in a way that the fact that the corroborating data cannot be contrasted does not invalidate the statement if the impossibility of verification is justified by virtue of the concurrent circumstances.
From the exposed follows that, according to the more recent jurisprudence, will not be enough for convicting the accused that in the victim concurs absence of subjective incredibility and that is incriminatory testimony is presented as credible and persistent, but it will be necessary that some alien and external data to the victim and its statement concurs that serves to corroborate its statement, even more when such corroborating data exist or should exist and can be brought to the oral trial through the proper proving activity, which should be borne, obviously by the accusation. And if this element of corroboration is not adequately proven in the oral trial we will not be able to talk about the existence of proof enough for destroying the constitutional presumption of innocence of the accused, even when it is really credible, from a purely objective point of view, the statement of the victim.”
Or the Provincial Court of Madrid´s sentence number 17585/2022, which affirms that: “The presumption of innocence cannot be destroyed, by the simple word of who accuses”.
With the rest of the requisites, the courts have been more lenient, in fact it is affirmed that the lack of the fulfillment of some requisite, may be compensated by the strengthening of the fulfillment of other. Though it is also affirmed that, the lack of fulfillment of all, should entail the dismiss of the victim´s statement as proof, as the Provincial Court of Navarra´s sentence number 30/2023 remembers to us: “And in relation with these criteria, the doctrine of the Supreme Court specifies that “The deficiency in one of the criteria does not make invalid the testimony, and can be compensated by the strengthening in other, but when the statement constitutes the only proof, an unsatisfactory fulfillment of the three modules of contrast impedes that the accusing statement may be apt by its own to destroy the presumption of innocence, like the statement of one accused when it accuse another without elements of corroboration, since it lacks the necessary strength for generating certainty (Spanish Supreme Court´s sentences number 938/2016 of 15 December; 514/2017 of 6 July; 437/2017 of 15 June; and 573/2017 of 18 July, among others).” (Sentence of the Supreme Court of 20 September 2019).”
5) The recognition of the accused during the stage of investigation:
The recognition of the accused during the stage of investigation in an identity parade, is not obligatory, but it can help the victim or its witnesses for identifying the guilty of any crime, like a crime of sexual aggression. It is regulated in the article 368 of the LECrim, and it has the following features:
1. Such recognition in identity parade only takes place, as it is drawn from the article 368 LECrim, when there are doubts about this identification.
2. Even though it is practiced will all the guarantees (in the presence of the Examining Magistrate and the lawyer of the accused) it cannot be regarded as a preconstituted proof, since it is not of impossible repetition during the oral trial (art. 730 LECrim).
3. In order to be understood as a valid proof and enough for destroying the presumption of innocence, the recognition has to be repeated during the oral trial through its ratification by the victim or witness in such trial, with the end of subjecting the recognition to contradiction and immediacy, as the guarantees of the procedure demand.
4. When the recognition in identity parade constitutes the only proof in which can be based the conviction, can be sustained that the high risk of error of this kind of proof is contrary to the right of presumption of innocence of the accused.
With respect to the photographic recognition, it is a sort of proof which shares with the identity parade the same characteristics, indeed the jurisprudence has developed it in similar terms. The photographic recognition consists in showing to the witness or victim of a crime pictures in which may appear the alleged author of the crime.
6) How affects to the procedure the semipublic character of the crimes of sexual aggression:
The article 191 of the CP states:
“1. In order to proceed for the crimes of sexual aggression and sexual harassment it is necessary the report of the offended, of its legal representative or lawsuit of the Public Prosecution, who will act taking into account the present legitimate interest. When the victim is a minor of age, a handicapped person needed of special protection or helpless person, it will be enough with the report of the Public Prosecution.
2. In these cases the pardon of the offended or its legal representative does not extinguish the penal action, nor the liability of this class.”
The first point of this article transforms the crime of sexual aggression, into a semipublic crime, in other words, a crime which supposedly needs the report of the offended or its legal representative, for allowing the criminal procedure to begin. But we have to be careful interpreting this requisite, for the jurisprudence of the Spanish Courts has understood this requisite in a broad way, not restrictive, allowing the procedure to begin without the report of the victim or its legal representative, and understanding that this requisite can be remedied when the victim takes part in the procedure as a party, or simply when it expresses its conformity with the procedure not opposing to it. This excerpt from the Spanish Superior Court of Cataluña´s sentence number 3902/2022, is clear regarding the above: “In this same direction and according to what is remembered by the Spanish Supreme Court´s sentence number 340/2018 of 6 July, quoting previous sentences (Spanish Supreme Court´s sentences number 96/2009 of 10 March or 705/2016 of 14 September), this requisite has to be understood as fulfilled when the offended takes the position of a party in the procedure for exercising the accusation or when, knowing the existence of the procedure it does not oppose to it. It has been said too that, the passive conformity to the procedure, remedies the lack of the initial report (Spanish Supreme Court´s sentence number 1341/2000 of 20 November) and even that the renouncing to civil actions by the legal representative of the minor does not undermine the legitimacy of the conviction (Spanish Supreme Court´s sentence number 131/2013 of 20 February).”
Notwithstanding this broad interpretation, it is evident that with the simple conformity of the victim to the procedure, passive, it will not be enough for achieving the degree of certainty needed for destroying the presumption of innocence of the accused. In any crime, but even more in a crime of such personal character, will be essential the statement of the victim (except in la laboratory scenarios in which for example there is a videotape that recorded the crime), the statement of the victim during oral trial will be the main proof around which will turn the rest of the proofs which may sustain a conviction.
Let us now see the second point of the article 191. In it we see, the second feature of the so-called semipublic crimes, the pardon of the offended or its legal representative does not extinguish the penal action, or what is the same, the renouncing to the penal action or even the civil action in accordance with the article 106 and 107 of the LECrim does not suppose the extinction of the penal procedure, for the public prosecutor may continue being a party of the procedure exercising the so-called public accusation.
This has an important consequence, once the victim has decided to report the facts, it lost the control upon the procedure. Regarding the above the Spanish Supreme Court´s sentence number 402/2023 says: “Indeed, in the so-called semipublic crimes or semipublic, like the sexual aggression, the procedure depends on the corresponding report by the offended but, once the report is presented, the renouncing to the exercise of penal actions by the offended does not impede the continuation of the procedure, in accordance with the articles 106 and 107 of the LECrim (Spanish Supreme Court 316/2013 of 17 April and 75/2006 of 3 February). Concretely, and for the case of the crimes of sexual aggression, the article 191.2 CP states that “the pardon of the offended or its legal representative does not extinguish the penal action, nor the liability of this class.” this evidences even more that the lack of exercise of actions by the victim is not a extinguishing cause of the criminal liability in this class of crime.”
Adding later the same sentence: “In the ambit of the penal procedure the renouncing entails, either the exclusion of the condition of procedural party, or the extinction of the penal action, but this last case only in those crimes in which the pardon is an extinguishing cause of it (crimes of discovery and revelation of secrets -art. 201.3 CP-, slanders and calumnies -215.2 CP and damages caused by negligence in an amount greater than 80.000 euros -267.3 CP)”.
This same sentence clarifies, as consequence of the lack of clarity of the LECrim´s precepts, the guarantees which should surround the renouncing of penal or civil actions by the victim, for example, pointing out that it should be done in the presence of the its lawyer and the Examining Magistrate, and having been previously informed of the compensations to which it would have right. The aforementioned sentence later says: “Indeed, this Chamber has declared in relation to the renouncing of the civil action that, it has to be express and clear and that it cannot leave any doubt for its clarity and content of what was the will of the renouncer (Spanish Supreme Court´s sentence number 1755/2003 of 19 December and 250/2005 of 28 February) and declaring that the renouncing has to be interpreted in a really restricted way (Spanish Supreme Court´s sentence number 3862/1990 of 1 December), excluding from the condition of renouncing doubtful expressions, like “…that it don´t claim anything, that the only thing it wants is to forget the matter; that the money does not matter to it and that it would have never reported the crime for money; that it didn´t know that the accused had to give it something and that what she wants is that the people know that it has make harm, that it cannot go harming the people…” (Spanish Supreme Court´s sentence number 102/2021 of 5 February). In the already quoted Spanish Supreme Court´s sentence number 102/2021 of 5 February, it is declared that the renouncing of the civil action, cannot be left to the procedure envisaged in the article 109 LECrim, but the victim needs the precise information of the compensations to which it has the right, without being equitable the renouncing to the mere withdrawal.
And if this is like this for the exercising of civil actions, with more reason has to be demanded this information for the renouncing of the penal actions. For understanding the renouncing of the criminal action as definitive or irrevocable our opinion has to be even more restricted, it is not enough with being the expression renouncing to the penal action precise and clear, it is necessary that the victim has to be informed of the consequences of this renouncing. Therefore, the simple affirmation that it is renounced the exercise of the penal actions, if it is not accompanied of the precise information about the effects of it, does not impede the later appearance of the offended in the procedure, previous to the qualification of the crime, for exercising the penal action according to the envisaged in the article 109 of the LECrim.”
And we have to say something important which we have not said yet, but which is mentioned in the above excerpt. According to the article 109 bis and article 110 LECrim, the offended and the damaged by the crime (the doctrine understands for offended the person who directly suffers the harm caused by the crime, whether it is the damaged, and for damaged the person who suffers the damaging consequences of the crime, economically assessable, whether patrimonial or moral) will have the opportunity of being a party of the penal procedure until the provisional qualification of the crime.
7) The Organic Law 10/2022 of 6 September, of integral guarantee of the sexual freedom:
We have already commented something at the beginning. The LO 10/2022 reformed the content of the Title VIII, changing a lot of the punishments associated to the crimes regulated in it. This has provoked a lot of claims asking for the revision of numerous sentences, by convicted trying to make effective their right to the retroactive application of the favoring penal precepts of the article 2.2 CP, which even reach the rank of constitutional right recognized in the article 9.3 of the Spanish Constitution (CE) for reverse interpretation of the principle of non-retroactivity of the sanctioning dispositions not favorable or restricting of individual rights.
A good example of the above is the said by the Provincial Court of Valencia´s sentence 6/2023: “As declares, among others, with general character the sentence of the Constitutional Court of 11 November 1998, number 215/1998, the “retroactivity of the penal law more favorable is a principle constitutionally recognized through a reverse interpretation of the art. 9.3 CE (Spanish Constitutional Court´s sentences number 8/1981, 51/1985, 131/1986, 21/1993). And the sentence of the Supreme Court of 15 June 2012, rec. 1432/2011, number 538/2012, that “the principle of retroactivity of the penal dispositions more favorable reach in our penal legislation the firm sentences always that they are not wholly executed (art. 2.2 of the Penal Code).”
The only limit which has been marked by the art. 2.2 CP are the firm sentences already fully executed, therefore, can be the object of revision the sentences which are being appealed, and all those which having exhausted all the appeals against them, have not been fully executed yet.
Now, the most important is to find out what has been the criteria followed by our courts when they have applied the art. 2.2 of the CP. Regarding the above the Provincial Court of Valencia´s sentence number 6/2023 says: “Nevertheless, in occasions arises the problem of determining whether the new norm is more favorable to the convicted, and to this end this Chamber has repeated that the comparison of the laws applicable to a concrete case has to be made taking into account the laws as a whole, without being possible to choose the favorable aspects of the new law, and to dismiss those which are not favorable. This is how have interpreted the matter some transitory dispositions introduced by relevant reforms of the CP (Second Transitory Disposition of the Penal Code of 1995, First Transitory Disposition of the Organic Law 5/2010, of 422 June, and First Transitory Disposition of the Organic Law 1/2015 of 30 March)”. If on making the comparison as a whole of the two legislations the punishing framework varies, it will be obliged to determine the punishment to be imposed for the facts that were object of conviction attending the qualification of the facts in both legislations and the punishment to be imposed which results from the concurring modifying personal circumstances of the criminal and the greater or lesser gravity of the fact” (article 66.1.6º of the CP)”.
Then, we have to compere both regulations, the new and the old, as a whole, in order to determine which one is better for the convicted. In this work of comparison, we have to take into account all of the aspects, freedom´s privative punishments or accessory punishments, or even the attenuating and aggravating factors which may affect to them. Nevertheless, of all this circumstances which should be taken into account, the most important will be always the freedom´s privative punishment, if there exists a reduction of it in comparison with the last regulation, without doubt the reform will be favorable to the convicted. As the Provincial Court of Madrid´s sentence number 4/2023 says: “but logically, ordinarily, the imposition of a punishment of imprisonment of less duration, which entails a shortening of the conviction, is more favorable to the convicted, for much accessory punishments which may be imposed.”
The reform, without doubt, has been favorable to a lot of convicted, who have seen how their freedom´s privative punishments have been reduced. Above all, in those cases in which the absence of attenuating or aggravating factors provoked the imposition of the minimum legal punishment by the judge or court, for in numerous cases the LO 10/2022 has reduced this legal minimum, being applied in the revision of the sentences this new minimum.
8) The moral damage derived from the crime:
As always, one of the most important parts of a conviction is the declaration of the civil liability with which the victim has to be compensated, except in the cases in which the victim has decided to reserve the exercise of the civil action in an independent procedure (art. 112 LECrim).
Before the absence of physical damages, above all in this kind of sexual aggressions where can be used as a form of coercion the intimidation, are specially relevant the moral damages, which although do not leave marks in their commission, has to be assessed and compensated to the victim. Moreover, in the article 193 CP, it is expressly recognized the necessity of including the civil liability along the possible punishment.
The problem of the moral damages is that they are not assessable, that there exist no criteria, an arithmetic formula from which is possible to obtain a just assessment.
Let us now see this little excerpt from the Provincial Court of Palma de Mallorca ́s sentence number 111/2023: “As the jurisprudence has repeatedly manifested, the moral damages, due to their own nature, are not objectively assessable, nor have to be them proven when their existence is inferred directly from the facts (S.T.S. 907/2000 of 29 May and 1490/2005 of 12 December); thereby, for their appreciation and assessment, will be enough with either to prove them or to be them a natural consequence of the proved facts or, using the words of the Supreme Court, that they “flow” in a natural way from the facts and have certain relevance ( STS of 24 of April 2014).”
This from the Spanish Supreme Court ́s sentence number 661/2023 is also interesting: “In any case, it is important to stress that the compensatory amount set is reasonable and is sufficiently explained. It is adjusted to usual standards. It is appropriate to remember using as example the Spanish Supreme Court ́s sentence number 97/2016, of 28 June: “…the economic translation of a reparation for moral damages is a duty reserved to the arbitrariness of the Court of instance and, therefore, cannot be appealed in cassation. It is possible to discuss the basis but not the concrete amount, which is not only not limited by arithmetic rules; but besides the moral damages cannot be assessed with accuracy (Spanish Supreme Court´s sentence number 957/2007, of 28 November). When the assessment is fitted to usual standards and parameters that, without being exact, turn around to criteria commonly shared and recognizable, will not be necessary a reasoning, impossible, which justifies why is given “x” euros and not a slight superior amount, or slight inferior amount. Only when the set amount does not have the minimum basis and, besides, does not follow the usual or understandable standards, in a way which it is presented as the fruit of pure arbitrariness or whims is possible the review as remember to us the Supreme Court Sentence 957/2007.»
Therefore, from the above we can extract the following conclusions about the moral damages: – They cannot be objectively assessed, nor have to be them proven when their existence is unquestionably inferred from the facts.
– Their assessment is duty of the Court of instance.
– Their assessment should fit the usual standards and parameters that, without being exact, turn around to criteria commonly shared and recognizable.
– It is not necessary a motivation in the sentence of why is given an amount and not other slightly superior or inferior.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com