“Crimes against the family relations”, is the title of the Title XII, of the Book II, of the Spanish Penal Code (CP). It is a Title formed by three Chapters: 1) Of the illegal matrimonies; 2) Of the simulation of labor and the alteration of paternity, state or condition of the minor, and; 3) Of the crimes against the family rights and duties.
1) Of the illegal matrimonies:
As we have already said, “Of the illegal matrimonies” is the first chapter that we find within the Title XII. It is made up of three articles, whose object, is the illegal matrimonies.
Article 217:
The first of these articles, is the article 217 which says:
“Article 217:
Who marries a second or more times, knowing that legally subsist the previous, will be punished with the punishment of imprisonment from six months to one year.”
The objective type consists in, marrying “a second or more times, knowing that legally subsist the previous.” Thereby, a person cannot marry again while the previous matrimony has not been officially dissolved according to the Spanish Civil Code (CC). According to this CC, a matrimony can be dissolve “for the death or the declaration of demise of one of the spouses and for divorce.” (art. 85 CC).
To the above, we have to add the subjective type, which is also clearly expressed in the article 217, when it says that the second or subsequent matrimonies should be contracted “knowing that legally subsist the previous”. Therefore, we are before a malicious crime, which consequently, can never be committed for imprudence.
Regarding the legal good protected by the norm, if we take as reference the location of the precept within the CP, we know that it is the family relations. If we want to be more precise, we can add that the legal good is the right of the spouse passive subject of the crime, to contract matrimony according to the legal requisites, among which we find to not be previously bound by another matrimony (art. 46 CC), since otherwise the matrimony would be null and void (art. 73.2º CC), with the prejudices of every kind that this would suppose.
Article 218:
The next article is the article 218, which says:
“Article 218.
1. Who, for causing a prejudice to the other party, contracts a null and void matrimony will be punished with the punishment of imprisonment from six months to two years.
2. The liable will be exempt of punishment if the matrimony was subsequently remedied.”
The objective type is constituted by the action of contracting a null and void matrimony for causing a prejudice to the other party. The subjective type, that this null and void matrimony has to be contracted by the active subject of the crime, with the intention of “causing a prejudice to the other party”, what inexcusably demands the existence of malice.
Here the relevant, is to determine in which cases can be regarded a matrimony null and void. The CC distinguishes between two scenarios: 1) Those in which a matrimony cannot be contracted, and; 2) Those in which a matrimony is null and void, among which are included too, those of the first group. In my opinion, in either case a matrimony will be null and void.
Regulating the first group we have the article 46 CC, which expressly forbids the contracting of matrimony to the minors of age not emancipated and those bound by a previous matrimony. In the former scenario, a minor under eighteen years of age cannot be criminally liable, but a minor of age can be liable according to the Organic Law 5/2000, of 12 January, which regulates the criminal liability of the minors (art. 19 CP). In the latter scenario, we should exclude from the scope of application of the article 218, for this behavior is already punished in the article 217, and the same facts cannot be punished more than one time using different precepts of the CP, otherwise the principle “non bis in idem” would be infringed.
Among those who cannot contract matrimony, we also find the enumerated in the article 47: 1) The family in straight line for consanguinity or adoption; 2) The collaterals for consanguinity up to third degree, and; 3) Those condemned for having taken place in the malicious crime of the spouse or person with whom it has been bound for analogous relation of affectivity.
In my opinion, when knowingly the active subject is in any of these prohibitions, its behavior will be within the scope of the article 218.
On the other hand, the cases in which a matrimony is null and void are described in the article 73 CC: 1) The matrimony contracted without matrimonial consent; 2) The matrimony is contracted between the persons to which is referred the articles 46 and 47, except when there exists dispensation according to the article 48; 3) The contracted without the intervention of the Judge of Peace, Mayor, or town councilor, Legal secretary, notary or public servant before which is should be celebrated, or without witnesses; 4) The contracted for error in the identity of the person of the other party or in those personal qualities which, by its entity, have been determinant in the granting of the consent, and; 5) The contracted by coercion or grave fear.
Let us analyze each of these scenarios. The first is when the matrimony has been celebrated without matrimonial consent. That there is no matrimonial consent means that, it is not given consent for contracting matrimony, but the consent could have been given for another thing. In my opinion, this scenario is not comprehended within the scope of the article 218, that there is no matrimonial consent presupposes that there has existed consent but for another legal business, what also implies error by who grants it, and where there is error, cannot be malice demanded by the precept, remember, the matrimony should be contracted for “for causing a prejudice to the other party”.
Of the second scenario we have already spoken when we talked about those who cannot contract matrimony, so let us directly study the third scenario, when the matrimony “is contracted without the intervention of the Judge of Peace, Mayor, or town councilor, Legal secretary, notary or public servant before which is should be celebrated, or without witnesses”. Why not? This can be a scenario within the scope of the article 218, I can perfectly imagine a mocking matrimony where one of the parties knows that it is not fulfilling the legal requisites for considering the matrimony as valid, but it wants that the matrimony carries on for causing a prejudice to the other party. Recall, the determining factor is the subjective element of having the intention of causing a prejudice to the other party.
The fourth scenario contemplated in the article 73 CC is that, the matrimony has been contracted “for error in the identity of the person of the other party or in those personal qualities which, by its entity, have been determinant in the granting of the consent.” Here, we have exactly the same problem that we had with the first scenario, the existence of error determines the inexistence of malice, therefore another scenario that we should exclude from the scope of the article 218.
Lastly, we have to study the last scenario, the fifth, when the matrimony is contracted “by coercion or grave fear”. Another scenario which should be excluded from the scope of the article 218, but in this occasion on account of a new motive, for existing a precept in the CP which expressly punishes this behavior, in the article 172 bis is punished who “with grave intimidation or violence compels another person to contract matrimony.”
Summing up, the article 218 can be applied when: 1) It is a minor of age not emancipated, but according to the penal liability established in the LO 5/2000, of 12 January; 2) When it is celebrated between the persons of the article 47, and; 3) When it is “contracted without the intervention of the Judge of Peace, Mayor, or town councilor, Legal secretary, notary or public servant before which is should be celebrated, or without witnesses.”
Later, the article 218 says in its second point that, “The liable will be exempt of punishment if the matrimony was subsequently remedied”. This might happen when: 1) A minor finally achieves the emancipation; 2) When a judge gives the dispensation necessary for the third scenario of the article 47 (art. 48 CC); 3) When achieved the majority of age by the minor, the spouses have lived together for one year (art. 75 CC); 4) When existing a defect of form, at least one of the parties has contracted matrimony in good faith, save in the cases of the art. 73.3 CC (art. 78 CC).
With respect to the legal good protected, it will be the same that in the article 217, the family relations, and concretely, the right of the spouse to contract matrimony according to the legal requisites for not suffering prejudices.
Article 219:
The next article of which we have to talk is the article 219 which says:
“Article 219.
Who authorizes matrimony into which concurs any cause of nullity known or reported in the file, will be punished with the punishment of imprisonment from six months to two years and special disqualification for public employment or charge from two to six years.
2. If the cause of nullity was dispensable, the punishment will be of suspension of public employment or charge from six months to two years.”
According to the article 49 of the CC, “Any Spanish may contract matrimony inside and outside of Spain:
1º In the way regulated in this Code.
2º In the religious way legally envisaged.
It can also contract matrimony outside Spain according to the rules established in the place of celebration.”
Therefore, mainly there are three ways in which a Spaniard can contract matrimony: 1) In the way regulated in the CC; 2) In the religious way legally envisaged, and; 3) Outside Spain according to the rules established in the place of celebration. Of these three ways, we are especially interested in those which can take place within Spain, according to the CC, or in a religious way in accordance with the Spanish regulation.
Let us start with the civil matrimony. We have already said, that a matrimony will be null and void if are fulfilled the requisites of the article 73, for in the own CC, in its article 51, it is established who is responsible of avoiding that a matrimony takes place when these requisites are met. That these requisites of nullity do not concur, should be expressed through minute or file by the “Legal secretary, Notary or person in charge of the Civil Registry of the place of the domicile of one of the contracting parties or by a diplomatic officer or consular agent if they reside in a foreign country.”
After this first filter, in which there is a person in charge of reflecting into a minute or file, that both spouses fulfil the requisites for getting married, in the same article 51, we have the persons with competence for wedding the parties: 1) The Judge of Peace or Mayor of the town in which the wedding takes place, or the town councilor into whom this delegates; 2) The Legal Secretary or Notary freely chosen by both spouses with competence in the place of celebration, and 3) The diplomatic officer or consular agent in charge of the Civil Registry in a foreign country.
Then, is to any of these persons to which is referred the article 219 CP. But we have not finished yet, because to these persons we have to add the “priest duly accredited”, to which is referred the article 60 CC, since in these cases the file or minute to which we referred above, should be also prepared according to the regulation of the Civil Code.
Now, we know who can be the active subject of the crime. Being persons with special qualities, they make the crime typified in the article 219 an improper special crime.
Let us continue, because we have not talked yet about the objective and subjective elements of the type. The objective type, is constituted by the typical behavior of authorizing “matrimony into which concurs any cause of nullity known or reported in the file.” The objective type, is constituted by the typical behavior of authorizing “matrimony into which matrimony into which concurs any cause of nullity known or reported in the file.”
While the subjective type, will be fulfilled when there is malice, in other words, when the active subject authorizes the matrimony in spite of knowing, that concurs a cause of nullity known or reported in the file, and this behavior is regarded as a crime.
Regarding the legal good protected by the norm, it is again the family relations, and again we can concrete this legal good in the right of both spouses to contract matrimony according to the legal goods.
But we have to comment something more, since the article 219 has a second point. In it, is established a smaller punishment when the nullity is dispensable, since in these cases the punishment of imprisonment disappears. In accordance with all we have seen, the only scenario in which a cause of nullity is dispensable is, according to the said by the article 48 CC, when one of the spouses has taken part in the malicious murder of the other or of a person to whom it has been bound by an analogous relation of affectivity (art. 47.3º CC).
2) Of the simulation of labor and the alteration of paternity, state or condition of the minor:
Within the Chapter II, the first article which we find is the article 220, which says:
“Article 220.
1. The simulation of labor is punished with the punishment of imprisonment from six months to two years.
2. The same punishment will be imposed to who hides or delivers to thirds parties a person under eighteen years of age for altering or modifying its filiation.
3. The substitution of a child for another will be punished with the punishment of imprisonment from one to five years.
4. The ascendants, by nature or adoption, who commits the facts described in the previous three points may be also punished with the punishment of special disqualification for the exercise of the right of parental authority which they may have upon the son or daughter or alleged descendant, hidden, delivered or substituted, and, in its case, upon the rest of children or descendants from four to ten years.
5. The substitutions of a child for another carried out in sanitary centers for grave imprudence of the persons responsible of its identification and custody, will be punished with the punishment of imprisonment from six months to one year.”
In the article 220 we find three kinds of typical behaviors, each of them expressed in each of the three first points. After, in its fourth point we find an aggravated subtype, since in it is also imposed the punishment of special disqualification. And in the fifth point, for when the substitution of the child has been carried out by grave imprudence, within a sanitary center.
Let us start with the first of the typical behaviors. In the first point of the article 220 is punished “the simulation of labor”, which we can define as “attributing to oneself the product of a labor which if falsely affirmed to have had.” Then, objective type of this crime is constituted, by this false adjudication of the maternity of a child, who comes from a labor that the active subject of the crime has not suffered.
Let us now talk, about the subjective type. In the first point we do not find any inkling about it, so lacking this we should recur to the general rule, the crime of simulation of labor is a malicious crime which cannot be committed by imprudence.
As in the case of the crimes typified in the Chapter I, we can affirm without being afraid of being wrong, that the legal good protected by the norm is the family relations. However, like before, we can develop the legal good, in the right of the minors to know and relate with those from whom they are descendants.
In the second point of the article 220 we find the second typical behavior, through which is punished “who hides or delivers to thirds parties a person under eighteen years of age for altering or modifying its filiation.” The article is clear describing the action punished, it consists in hiding or delivering to thirds a person for altering or modifying its filiation. Now, let us try to discompose it for analyzing the two actions which form it: 1) To hide from thirds a minor of age for altering or modifying its filiation, what presupposes that, the same person who hides the minor is the one who pretends attributing to itself the filiation of the minor, and; 2) To deliver to thirds a minor of age for altering or modifying its filiation, from which it seems that, these thirds are the ones who will falsely attribute to themselves the filiation.
Should we suppose then, that those thirds to which is delivered the minor cannot be liable according to the article 220? In my opinion, no. The thirds to whom is delivered the minor will be criminally liable for this article 220, insofar as they also hide the minor for altering and modifying its filiation. Furthermore, we can imagine other scenarios of authorship, as the necessary cooperators of whom delivers them, since without their collaboration will be very difficult to consummate the crime. Though, in my opinion, should be discarded their participation as accomplices, since in a greater or lesser degree their contribution will be always essential.
In the case of the second point, we are also before a malicious crime, which cannot be committed by imprudence.
Besides, the legal good protected by the norm will be exactly the same that we saw in the first point of the article 220, the right of the minors to have a relationship with those from whom they really descend.
The last typical behavior described by the article 220 is, “The substitution of child for another.” The objective type consists in altering filiation of a minor substituting it by another. It is difficult to imagine a real case, leaving aside a child who has just been born, since the family of the child substituted will always realize the change, though it can also happen that they are part of the scheme.
Like in above examples, it is a malicious crime, being discarded its commission by imprudence, except in the cases envisaged in the fifth point of this article, which we are going to study later.
Now is the turn of the fourth point. If the facts described in any of the previous three points, are committed by the ascendants, by nature or adoption, of the alleged child or descendant, hidden, delivered or substituted, it will be also possible to punish them with the punishment of special disqualification for the exercise of the parental authority upon it, and in its case, upon the rest of the children or descendants. What is clear is that, it is a faculty of the ruling court to decide whether to impose the privation of the parental authority or not, since the law says “may”, depending, therefore, on the circumstances of each case its exercise, though its application should be always previously motivated.
Finally, in the last point of the article 220 is punished the substitution of a child for another, like in the third point, but this time when this is carried out in a sanitary center for grave imprudence of those responsible of its identification and custody. Not being demanded the existence of malice for imposing the punishment, this has been reduced in proportion to the grave imprudence demanded by the type. Though briefly, let us try to distinguish between the malice and the imprudence. There are two types of malice, the direct malice, which punishes the one who knows and wants to carried out the objective elements of the type, in other words, who knows that what it is doing is a crime, and despite this, it carries out it, and the eventual malice, which punishes who represents to itself as probable that, its action or omission will suppose the fulfillment of the objective elements of the type. The line which separates the eventual malice from the imprudence, and more if it is grave imprudence, is slim, but it is much thicker and easily identifiable, if we take into account that the imprudence, consists in the infringement of a duty of care imposed by a norm or a custom socially accepted. Consequently, in the imprudence, the important is the infringement of this duty of care, without existing in the active subject any king of intention, not even in its eventual modality, of fulfilling the objective elements of the type.
On the other hand, the Organic Law 1/2015 distinguishes between the grave impudence and the less grave imprudence, leaving the minor negligence to the civil ambit of the noncontractual liability.
For distinguishing the grave imprudence from the less grave imprudence, we have to attend to the importance of the duty omitted, the worth of the legal goods affected and the possibilities that exist for provoking the illicit result.
According to the Spanish Supreme Court´s sentence number 2543/2022, the grave imprudence is: “omission of the diligence more intolerable, through an active or omissive behavior, which causes a harming damage and which is casually connected with such result”. While in the same sentence the less grave imprudence is defined as: “the creation of a risk of inferior nature to the grave, assimilable in this case, to the less grave, as the infringement of the regular duty of foresight before the activity that is carried out by the agent in the acting corresponding to the behavior which is the object of attention and which is the casually determinant, unique or plural, with the result produced, in a way that can be affirmed that the creation of the risk is imputable to the agent, for either its professional behavior or actuation or omission in an activity socially and legally allowed which may cause a harming result.”
Article 221:
The article 221 is simpler than the article 220, for in it, it is only described one typical behavior, the one which appear in its first point, while the second extends the punishment reflected in the first point to authors different from the direct author of the facts, and the third imposes a punishment of special disqualification and closing of certain establishments when the facts are committed in nursery schools, schools and other places. The article 221 says:
“Article 221.
1. Those who, through economic compensation, deliver to another person a son or daughter, descendant or any minor though does not concur any relation of filiation or kinship, eluding the legal procedures of the guardianship, foster care or adoption, with the aim of establishing an analogous relation of filiation, will be punished with the punishments of imprisonment from one to five years and special disqualification for the exercise of the right of parental authority, guardianship, curatorship or custody from four to ten years.
2. With the same punishment will be punished the persons who receives it and the intermediary, although the delivery of the minor has been carried out in a foreign country.
3. If the facts were committed using nursery schools, schools or other premises or establishments where are gathered children, will be imposed to the guilty the punishment of special disqualification for exercising the referred activities from two to six years and may be agreed the temporal or definitive closing of the establishments. The temporal closing, cannot exceed the five years.”
Beginning with the typical behavior described in the first point. In it, is punished who “through economic compensation, deliver to another person a son or daughter, descendant or any minor though does not concur any relation of filiation or kinship, eluding the legal procedures of the guardianship, foster care or adoption, with the aim of establishing an analogous relation of filiation.”
Summing up, the typical behavior consists in delivering a minor or another person in exchange for money, eluding the legal procedures of the guardianship, foster care or adoption, in order to establish an analogous relation to the filiation. It is evident that, the characteristic element is the economic compensation which is received in exchange of the minor, which of any kind. The aim is avoiding the legal procedures envisaged, in exchange for that payment. In broad terms, the filiation consists in the legal consideration of a person as child of a man and a woman, what is embodied in carrying their surnames. When the law is referring to “an analogous relation to the filiation or kinship”, it is referring to any relation similar to the previously commented, hence, in principle, it is not necessary that this child carries the surnames of the parents to whom it is delivered in exchange of the economic compensation, for understanding fulfilled the objective elements of the type.
On the other hand, the subjective element of the type is clear, it is a malicious crime which cannot be committed by imprudence.
With regard to the legal good protected by the norm, it is again the family relations.
Calls our attention, the similarity that exists between the this first point of the article 221 and the typical behavior described in the second point of the article 220, recall, to hide or deliver “to thirds a minor under eighteen years of age for altering or modifying its filiation”.
If the main characteristic of the behavior described in the article 221 is the economic compensation given in exchange for the minor, the main difference between this and the envisaged in the article 220 is that, in the latter this economic compensation will not be necessary for fulfilling the objective elements of the type. But there exists another important difference, the imposition of the punishment of special disqualification for exercising the parental authority, is a faculty for the court which punishes for the crime of the article 220, whereas if the conviction arrives through the article 221, this special disqualification has to be always imposed. What is evident is that, the same facts cannot be punished according to the second point of the article 220, and according to the first point of the article 221, otherwise the principle non bis in idem would be infringed.
Let us now talk about the second point of the article 221. This point, extends the criminal liability to who receives the minor and the intermediaries, even when the delivery of the minor has been carried out in a foreign country. What is making the law, is extend the criminal liability to all those who participate in the crime, without taking into account their degree of participation. Remember that, for the second point of the article 220 we have made use of a more or less complex argumentation, for attributing the criminal liability to those to whom the minor was delivered, something that this second point of the article 221 makes unnecessary. Moreover, the intermediaries, are also classified as criminally liable, what makes us to think if in these cases the simple accomplices, when their contribution for the commission of the crime cannot be regarded as essential, fit into this concept of intermediaries.
Finally, in the third point of the article 221, is established that when “the facts were committed using nursery schools, schools or other premises or establishments where are gathered children, will be imposed to the guilty the punishment of special disqualification for exercising the referred activities from two to six years and may be agreed the temporal or definitive closing of the establishments.” If is understood that the punishment of special disqualification for exercising these activities, should be added to the punishment of special disqualification for exercising the parental authority, guardianship, curatorship or custody.
Article 222:
In the article 222 is imposed a punishment of special disqualification for public employment or charge, profession or trade, besides the envisaged in the previous two articles, when who commits the crime is an educator, doctor, authority or public servant.
Concretely the article 222 says:
“Article 222.
The educator, doctor, authority or public servant who, in the exercise of its profession or charge, carries out the behaviors described in the previous two articles, will incur in the punishment envisaged in them and, besides, in the that of special disqualification for public employment or charge, profession or trade, from two to six years.
For the purpose of this article, the term doctor comprehends the doctors, matrons, nurses or any other person who carries out a sanitary activity.”
This article fills the gap left by the third point of the article 221, which only imposes the punishment of special disqualification for exercising the activities related with nursery schools, schools or other premises or establishments where are gathered children, when the facts are committed utilizing such establishments.
In my opinion, it means too that, when it is imposed the special disqualification for exercising certain activities, according to the article 221.3, for having been committed the facts in any of the establishments mentioned, cannot be imposed, besides, the punishment of special disqualification of the article 222, otherwise the principle non bis in idem would be infringed.
3) Of the crimes against the family duties and rights:
We have reached the Chapter III of the Title XII of the Book II of the CP, which is divided in three sections too: First Section. Of the breaching of the duties of custody and the induction of minors to the abandonment of the domicile; Second Section. Of the child abduction, and; Third Section. Of the abandonment of family, minors and handicapped persons needed of special protection.
– First Section. Of the breaching of the duties of custody and the induction of minors to the abandonment of the domicile:
Article 223:
The first article that we find within the Section 1º, is the article 223, which says:
“Article 223.
Who, having in charge the custody of a minor of age or a handicapped person needed of special protection, does not show it to its parents or guardians without justification for this, when it was required by them, will be punished with the punishment of imprisonment from six months to two years, without prejudice that the facts may constitute another graver crime.”
Let us first try to clarify what is the custody. The custody is, the care of a minor through coexistence, care and assistance. The person who has the custody of a minor, is the person who is directly in charge of it, who takes care of its main necessities and avoids that the minor may incur in situations which may put into risk its life or physical integrity. We should distinguish this custody from the parental authority, which is referred to the general representation and administration of the goods of the children under eighteen years of age.
The custody of the minor is normally attributed to one or both parents, though in some exceptional cases it can be attributed to a third. The more probable is that, this attribution of the custody is product of a process of separation, annulment or divorce (art. 92 CC), through which the parents reach an agreement or the own judge ruling these processes can be who assigns the custody to one or both of them. The father to whom the custody is not assigned, will have a right to visit the minor.
Now, that we know what is the custody, let us see what is the regulated by the article 223. The objective type consists in, having in charge the custody of the minor of age or a handicapped person needed of special protection, not to show it to its parents or guardians without a justification, when it is required by them.
Therefore, the article 223 is envisaged for those who not being either the father or mother are in charge of the custody of the minor or a handicapped person needed of special protection. The typical behavior will be carried out, when a third does not fulfill the schedule of visits established by the agreement or judge.
On the other hand, the subjective element of the type is constituted by the malice of whom being required by the parents does not show the minor. Hence, in these cases we should exclude its commission by imprudence.
The legal good protected by the norm, is again the family relations, and concretely, the right of the minors and their parents and mothers to have a good relationship between them.
Besides, as we have seen, the article 223 ends saying “without prejudice that the facts may constitute another graver crime”. In my opinion, these same facts may be regarded as a crime of illegal detention or kidnap, hence, in the case of being the objective and subjective types of these crimes the fulfilled, they should be punished according to their rules, in accordance with the rules of the article 8 CP.
Article 224:
The article 224 says:
“Article 224.
Who induces a minor of age or a handicapped person needed of special protection to abandon the family domicile, or place where it resides with the consent of its parents, guardians or caretakers, will be punished with the punishment of imprisonment from six months to two years.
In the same punishment will incur the father or mother who induce his or her child to infringe the custody arrangement established by the judicial or administrative authority.”
In this article we find two typical behaviors, one of them for each of the paragraphs which form it. Let us start with the first, which consists in inducing “a minor of age or a handicapped person needed of special protection to abandon the family domicile, or place where it resides with the consent of its parents, guardians or caretakers.”
According to the Dictionary of the Royal Academy of the Spanish Language, “to induce”, means: “To move someone to something or give it motives for it.”
Then, the article 224 punishes who, by any means, tries to influence the decision of a minor or handicapped person of leaving the family domicile. We should understand, that this influence can be achieved through gifts, lies, money, any weapon which may influence the decision of the minor of leaving its home.
Regarding the subjective element of type, we are before a malicious crime, what requires that, the active subject has to know the objective elements of the type, and besides, it has to want to execute them.
On the other hand, the legal good protected by the norm is again the family relations, as the right of the minors to continue within the family domicile which allows a good relationship with the persons who inhabit it.
We find the second typical behavior in the second paragraph of the article 224. It consists in inducing the minor to infringe the custody arrangement established by the judicial or administrative authority.
We already know the meaning of the verb “to induce”, although this time the induction can be only exercised by one parent upon a son or daughter, with the purpose, of trying that the minor does not comply with the custody arrangement established by the judicial or administrative authority. In my opinion, it seems that this second paragraph of the article 224, leaves out the possibility that this crime could be committed for inducing the minor to breach the custody agreement reached by its parents (art. 92.4 CC).
We are again before a malicious crime, which cannot be committed by imprudence.
In order to find out the legal good protected by the norm, we can make use of the Spanish Provincial Court of Lleida´s resolution number 785/2022: “The legal good protected by the norm is the security of the minor understood in the sense of giving the minor the adequate context for its psychic and emotional development, through the contact with both parents when it is necessary.”
Article 225:
The article 225 says:
“Article 225:
When the person liable of the crimes envisaged in the previous two articles returns the minor of age or the handicapped person needed of special protection to its domicile or residence, or deposits it at a known and secure place, without having made it the object of humiliations, degrading treatments or other crime, nor having put into risk its life, health, physical integrity or sexual liberty, the fact will be punished with the punishment of imprisonment from three months to one year or fine of 24 months, always that the place where the minor or the handicapped person needed of special protection stay, has been communicated to its parents, guardians or caretakers, or its absence has not been greater than 24 hours.”
By means of the article 225 are rewarded all those active subjects who ends the illicit behavior by their own means, being diminished the punishment of imprisonment to its half, and even offering the possibility of substituting this for a fine. In order to obtain this reward, the active subject has to fulfil the requisites mentioned in the article 225: 1) To return the minor or the handicapped person needed of special protection to its domicile or residence or deposit it into a known and safe place; 2) Without having suffered the minor humiliations, degrading treatments or any other crime, nor having put into risk its life, physical integrity or sexual life, and; 3) That the place where the minor or handicapped person stay, has been communicated to its parents,
guardians or caretakers, or its absence has not been greater than 24 hours.
– Second Section. Of the child abduction:
This Second Section of the Chapter III, is formed by only one article, the article 225 bis, but let us not be misled by its brevity, the article 225 bis is enough important for having its own section. I was introduced by the Organic Law 9/2002, of 10 December, for giving a penal response to a behavior which did not fit well into the crime of illegal detention of the article 163 and following.
The article 225 bis says:
“Article 225 bis.
1. The father or mother who without justified cause abducts his or her son or daughter will be punished with the punishment of imprisonment from two to four years and special disqualification for exercising the parental authority from four to ten years.
2. For the purpose of this article, it is regarded as abduction:
1º The moving of a person under eighteen years of age from its usual place of residence without the consent of the other parent or the persons or institutions to which it is trusted its guardianship or custody.
2º The retention of a person under eighteen years of age gravelly not fulfilling the duty established by judicial or administrative resolution.
3. When the minor is moved out of Spain or is demanded some condition for its restitution the punishment pointed out in the first point will imposed in its superior half.
4. When the abductor has communicated where the minor stays to the other parent or to who legally corresponds its care within the following 24 hours from the abduction with the compromise of its immediate return which effectively is carried out, or the absence has not been greater than this term of 24 hours, will be exempted from punishment.
If the return is made, without the communication to which is referred the previous paragraph, within the fifteen following days of the abduction, the punishment of imprisonment from six months to two years will be imposed.
These terms will be counted from the date in which the abduction is reported.
5. The punishments envisaged in this article will be imposed too, to the ascendants of the minor and the family of the parent up to second degree of consanguinity or affinity who incurs in the previously described behaviors.”
As we can see, the article 225 bis is formed by five points: a first, where we find the basic type; a second, where is defined what we should consider as abduction; a third, an aggravated subtype; a fourth, in which the punishment is attenuated when certain conditions are met, and; a fifth, where is extended the active subject of the crime, to others who are not the parents of the first point.
Let us begin studying the basic type of the first point. In it is punished the parent, who without justified cause abduct its son or daughter under eighteen years of age. Here we should stress that, it is a crime which can be only committed by a parent upon its child, save the exception which we are going to mention later established in the first point.
The typical behavior of abduction is defined in the second point of the article 225 bis in two different ways:
“1º The moving of a person under eighteen years of age from its usual place of residence without the consent of the other parent or the persons or institutions to which it is trusted its guardianship or custody.
2º The retention of a person under eighteen years of age gravelly not fulfilling the duty established by judicial or administrative resolution.”
Therefore, to abduct a minor, for the purpose of the article 225 bis, means two different things altogether.
However, there exists another important difference, if we carefully read the two behaviors defined as abduction by the article 225 bis, we can distinguish another important detail. In the former, is demanded the lack of consent of the other parent or of the institutions to which is trusted its custody or guardianship. In the latter, on the contrary, we are before a retention which requires gravelly not to fulfill a judicial or administrative resolution. Summing up, while in the first scenario, the passive subject of the crime can be only a person or institution who has the custody or guardianship of the minor, in the second, it can be any person to whom the retention denies a right recognized in a judicial or administrative resolution, among which we can find a shared custody or guardianship, but we can find another, for example a right to visit the minor.
As an example of the above, we can mention these two excerpts from two different resolutions:
– Spanish Provincial Court of Avila´s resolution number 170/2022: “Therefore, it is not possible to remedy this old lack shaping it now as a crime of disobedience for the mere fact that after the judicial resolution which establishes a concrete schedule of visits this has been not fulfilled by any of the parents, especially by who has the custody and guardianship of the minor. The retention of the minor, impeding that the parent who has a right of visits upon it the possibility of enjoying its company, may give rise to a crime of child abduction, if the established in the article 225 bis is fulfilled, but it is not by its own a crime of judicial disobedience, and more in a case like this where there is no previous judicial requirement of fulfilling.”
– Spanish Provincial Court of Barcelona´s resolution number 5559/2022: “Thus, the report is for an alleged crime of international child abduction contemplated in the article 225 bis CP, which according to well established jurisprudential doctrine cannot be committed when there exists no, like here, a judicial or administrative resolution which attributes the guardianship and custody to a parent or the parents, since the appellant has not brought such resolution which constitutes a normative element of typicity.”
Another consequence, is the importance given by the Spanish jurisprudence to the fact that one of the parents has the exclusive custody of the minor. For in those cases, it has been said, that the parent who has the exclusive custody of the minor cannot be the active subject of the crime of child abduction, for example, the Spanish Provincial Court of Barcelona´s resolution number 5559/2022 says: “Even when the penal type has its own autonomy with respect to the Agreement which serves it as referential model, this Agreement serves for its interpretation, for concluding that not only the guardian parent may incur in the moving or illicit retention, for this exclusion of the active subject, is only applicable to the parent who has the exclusive custody, although the parental authority is joint and with independence from the schedule of visits established; thereby, in the cases of joint attribution as ordinarily happens by mandate of the law, though there in no judicial resolution, who illicitly moves the minor, may incur in the crime, as well as, in the case of joint custody; the relevant is to infringe the custody schedule.”
But we have to be careful, not exaggerating the relevance given to the fact that one of the parents has the exclusive custody, thinking that automatically it means that it cannot be the active subject of the crime of child abduction. The exclusive custody upon the minor will exclude to be the active subject if we are in the first kind of abduction, the moving of the minor from its usual place of residence. But not when we are in the second scenario, the retention, since like we saw before, it can affect to those who do not have the shared custody upon the minor, those who have a right of visits upon the minor can be passive subjects of the crime, regardless the exclusive custody of the active subject, who in these cases may be the active subject of the crime. The same Spanish Provincial Court of Barcelona´s resolution number 5559/2022 says later: “From the doctrine exposed results that the penal norm protects the right of custody insofar as it is an instrument which gives stability to the family relations and allows the relations of the minor with its parents in the legal, judicial or administrative way agreed. Thereby, if in the cases of share custody is possible the commission of the crime by one of the parents, in the other cases in which the custody is exercised by only one parent, it is difficult to consider committed this crime when the moving or retention is carried out by the parent who has the exclusive custody.”
Pay attention to the said at the end, “it is difficult to consider committed this crime when the moving or retention is carried out by the parent who has the exclusive custody.” In my opinion, this being an important error. It is difficult when the parent who has the exclusive custody moves the child from its usual place of residence, but not when what it is doing is to retaining the child, as we have seen above.
In order to end to understand, the typical behavior described in the first point, we have to add something more yet. The Spanish Courts have considered that, both the term “abduction”, as the use of the word “gravelly”, points out that are excluded from the scope of this typical behavior, the temporal moving and retentions, in other words, without a vocation of remaining permanent and with an implicit intention of returning the minor or fulfilling the judicial resolution. The Spanish Provincial Court of Avila´s resolution number 170/2022 says: “Indeed, the crime demands the abduction, and that the not fulfilling of the judicial resolution has to be grave, what the minor jurisprudence has broadly interpreted as a permanent privation.
Both, the wording of this second point, using the term “gravelly”, as well as the meaning of abduction, which implies the definitive moving or retention of the minor, does not affect when analyzing the will of author, the temporal actions, in other words, those from whose circumstances is possible to infer that subsists the intention of returning the minor or ceasing the retention of the minor in a reasonable term, being essential to assess in these cases the damage caused to the minor, for it is evident that the legal good protected is its interests and rights.
In the current case is appreciated only one and partial lack of fulfilment or, at least, there are no others of the same class, what drives to consider, like the first instance judge does, that we are not before a grave and permanent lack of fulfilment, thus the appeal should be rejected.”
Now, we should talk of the subjective type. In the article 225 bis, is not mentioned that this crime can be committed for imprudence or negligence, therefore, it means that we are before a malicious crime, what implies that the active subject should consciously comply with the objective elements of the type.
Regarding the legal good protected by the norm, if we take into account the title we are studying, evidently, it is the family relations, but we can concrete this a little more with the help of the Spanish Provincial Court of Barcelona´s resolution number 5134/2022: “Consequently, like abundant resolutions from the Provincial Courts illustrate, we must concrete it in the maintaining of the peace in the family relations, in the right of the minors to have a regular relationship with its parents also in situations of family crisis, materialized in the respect to the legal avenues available to solve the conflicts when an agreement between the parties is not reached or directly contradicting the resolution fallen in the channel established.”
Summing up, the legal good protected, is the right of the minor to have a relationship with both of its parents.
Reached this point, we can affirm that we have ended to explain the subjective type of the crime of abduction of minors. But we should continue, because the article 225 has other three points.
As we mentioned at the beginning, in the third point of the article 225 bis we have an aggravated subtype of the basic type of the first point. The punishments envisaged in the first point, will be imposed in their superior half when the minor is moved outside Spain or it is demanded some condition for its restitution. Reading this third point, we immediately remember the crime of kidnap (art. 164 CP), punished with a punishment of imprisonment from six to 10 years. ¿What precept should we apply if both of them punish the same behavior? For solving this question, we should make use of the rules of the article 8 CP, being applicable, in my opinion, the first, “The special precept will be applicable with preference to the general.” Thus, in the scenario that a minor is abducted by one of its parents, imposing a condition for ending with the typical behavior, the facts should be punished according to the article 225 bis, and not according the article 164. Remember that, the same facts cannot be punished using both precepts, otherwise the principle “non bis in idem” would be infringed.
If in the third point we find an aggravated subtype, in the fourth we have an exemption and an attenuating factor. When the abductor communicates the place where the minor stays to the other parent or to whom legally corresponds its care within the next following 24 hours from abduction with the compromise of immediate return which is effectively carried out, or when the absence has not been greater that twenty-four hours, it will be exempted from the punishment.
On the contrary, if the restitution of the minor is carried out without the communication to which is referred the above paragraph, but within the next fifteen following days from the abduction, the punishment of imprisonment will be from six months to two years.
Besides, this fourth point of the article 225 bis tells us from where the terms above mentioned have to be counted, from the date in which the abduction was reported.
We can stress that, that either the exemption and the attenuating factor confirms the criteria followed by the courts, considering as penally irrelevant those abductions of short duration.
Lastly, the last point of the article 225 bis, its fifth point, extends the penal liability to other active subjects different from those who usually are implicated in this kind of crimes, the parents. The ascendants of the minor and the family of the parent up to the second degree of consanguinity or affinity are also penally liable. This excludes again in these cases, the application of the crime of illegal detention or kidnap, since according to the first rule of the article 8 CP, which we pointed out before, the article 225 bis is the applicable.
– Third Section. Of the abandonment of family, minor or handicapped persons needed of special protection:
This Third Section, is the last which form part of the Chapter III and has eight articles.
Article 226:
The first of these articles is the 226, which says:
“Article 226.
Who leaves to fulfill the legal duties of assistance inherent to the parental authority, guardianship, custody or foster care or of providing the necessary assistance legally established for the nourishment of its descendants, ascendants or spouse, who are in a state of necessity, will be punished with a punishment of imprisonment from three to six months or fine from six to 12 months.”
2. The Judge or Court may impose, motivating it, the punishment of special disqualification for the exercise of the parental authority, guardianship, custody or foster care from four to 10 years.”
In the article 226 we find the basic type of the crime of abandonment of family, being able to be passive subject of the crime the descendants, ascendants or spouse of the active subject.
The typical behavior described in the first point of the article 226, consists in leaving “to fulfill the legal duties of assistance inherent to the parental authority, guardianship, custody or foster care or of providing the necessary assistance legally established for the nourishment.”
Then for understanding well the typical behavior, we should know in which consist those legal duties inherent to the different legal institutions pointed out. For this we have to attend to the CC, where we find the different articles which develop these duties. Let us see them, in the order in which they appear in the CC.
Let us start with the obligation of providing nourishment. The article 142 CC says:
“Article 142.
It is understood by nourishment all that is necessary for the maintenance, dwelling, clothing and medical assistance.
The nourishment comprehends too the education of the beneficiary while it is a minor of age and even later when it has not ended its formation for a cause which is not imputable to it.
Among the nourishment are included the expenses of pregnancy and labor, insofar as they are not covered in another way.”
Later the article 143 CC says:
“Article 143.
Are obliged to provide one another nourishment in all the extension which points out the previous article:
1º The spouses.
2º The ascendants and descendants.
The brothers only owe one another the help necessary for the life, when they need them by any cause which is not imputable to the beneficiary, and is extended in any case to the necessaries for its education.”
Then, we can conclude that between the spouses, ascendants and descendants, and y some cases between brothers, there exists an obligation of providing one another the nourishment established in the article 142.
The next thing of which we are going to talk is the parental authority. The article 154 CC says:
“Article 154.
The children not emancipated are under the parental authority of the parents.
The parental authority, as parental responsibility, will be always exercised in the interest of the children, according to their personality, and with respect to their rights, their physical and mental integrity.
This function comprehends the following duties and faculties:
1º To take care of them, to have them in their company, to nourish them, to educate them and to provide them with an integral formation.
2º To represent them and administer their goods.
If the children have enough maturity have to be listened before taking a decision which affect them.
The parents may, in the exercise of their function, to obtain the help of the authority.”
From which we can conclude that the parental authority is exercised by the parents upon their children, and it mainly comprehends two duties: “1º To take care of them, to have them in their company, to nourish them, to educate them and to provide them with an integral formation, and;
2º To represent them and administer their goods”
It is the turn of talking about the guardianship. The article 269 says:
“Article 222.
Are subjected to the guardianship:
1º The minors not emancipated which are not under the parental authority.
2º The incapable, when the sentence has established it.
3º The subjected to the prorogated parental authority, on ceasing this, save when the curatorship proceeds.
4º The minors who are in a situation of neglect.”
And the article 269:
“Article 269:
The guardian is obliged to protect the ward and, in particular:
1. To provide it with nourishment.
2. To educate the minor and provide it with and integral formation.
3. To promote the acquisition and recuperation of the capacity of the ward and its better reinsertion into society.
4. To inform the annually the judge about the situation of the minor or ward and give annual account of its administration.”
Therefore, for example, the incapable, when the sentence has established it, will have the right of receiving nourishment from its guardian.
On the other hand, the guardianship and custody, though vaguely defined by the article 92 CC, is an obligation similar to the parental authority, which consist in the coexistence, care and assistance of the children who are minor of age. Nevertheless, it is going to be assigned in the agreement between the parents or by the judge, in a process of divorce between both parents, and can be shared or exclusively exercised by one of the parents.
Reached this point, we know more about the typical behavior punished by the article 226. Another question we should treat is that, according to the reiterated jurisprudence from the Spanish Supreme Court, the crime of abandonment of family of the article 226, is a permanent crime, which only needs the mere inactivity of the obliged subject by the legal duties of assistance regarding the persons mentioned in it, what determines that are not applicable the rules of continuity of the crime (art. 74 CP).
On the other hand, we are before a malicious crime, thus, the active subject should know and fulfil the objective elements of the type. Due to the fact, that the article 226 does not mention anything regarding it, it is a crime which cannot be committed by imprudence or negligence.
The legal good protected by the norm is again the family relations, though we can concrete this, in the respect owed between the members of a family to the duties of assistance and solidarity more basic.
Besides, in the second point of the article 226, it is conceded the faculty to the ruling judge or court of complementing the punishment of imprisonment or fine established in the first point with the special disqualification for exercising the right of parental authority, guardianship, custody or foster care.
Article 227:
If in the article 226 we find the basic type of the crime of family abandonment, in the article we find a specific modality of it, where is concreted more the family obligation not fulfilled, “any kind of economic compensation in favor of the spouse or its children.” Through this provision the legislator is trying to protect the members more economically weak of the family against the lack of fulfilment of the assistance duties of the obliged to provide them by virtue of judicial resolution or judicial agreement.
The article 227 says:
“Article 227.
1. Who does not pay two months in a row or fourth not consecutive months any kind of economic compensation in favor of its spouse or children, established in an agreement judicially approved or judicial resolution in the scenarios of legal separation, divorce, declaration of nullity of the matrimony, process of filiation, or process of nourishments in favor of its children, will be punished with the punishment of imprisonment from three months to one year or fine from six to twenty-four months.
2. With the same punishment will be punished who leaves to pay any other economic compensation established jointly or only upon one obliged in the cases envisaged in the previous point.
3. The reparation of the damage coming from the crime will always comprehend the payment of the amounts due.”
Therefore, the typical behavior consists in leaving to “pay two months in a row or fourth not consecutive months any kind of economic compensation in favor of its spouse or children, established in a judicially approved agreement or judicial resolution in the scenarios of legal separation, divorce, declaration of nullity of the matrimony, process of filiation, or process of nourishments in favor of its children.”
As we can observe, it is a permanent crime, to which are nota applicable the rules of continuity of criminal acts (art. 74 CP). Nevertheless, given the fact that the own article 227 establishes the number of non-payments which may be regarded as crime, it is more precise to consider these non-payments as a permanent crime of successive and accumulative tract. The Spanish Provincial Court of Merida´s sentence number 1261/2022 says: “Thereby, it is understood technically more precise the consideration of the crime of non-payment of economic compensation as a permanent crime of successive and accumulative tract, since for its consummation it demands a plurality of omissions, which are the consequence of the lack of fulfillment of an obligation of successive tract, but once produced the first typical period of omissions, the subsequent are accumulated, in a wat that the consummation is maintained in the time and ceases with the resumption of the payment or the trying of the omissions which constitute only one crime.”
On the other hand, the subjective element of the type, we are again before a malicious crime, though in this occasion with one particularity, it is not enough with a lack of fulfilment of the obligation of payment established in the precept, besides, it is necessary that the active subject has the real possibility of paying the economic compensation, for otherwise, the subjective element will not be fulfilled, like the cases in which the poverty impedes it. The Provincial Court of Barcelona´s sentence number 2295/2023 says: “The intentional will of lack of fulfillment is inherent to the omissive behavior, what excludes the cases of forceful impossibility derived from situations of economic precariousness.
The Supreme Court´s sentence 348/2020 of 25 June establishes: In relation to the crime typified in the article 227.1 CP we pointed out in the sentence number 576/2001 of 3 April, that this criminal figure “(…) constitutes a segregation of the general type of abandonment of family, incorporating to the Code a specific modality of the basic type, with which the legislator tries to protect the economically weakest members of the family against the lack of fulfilment of the assistance duties of the obliged to provide them by virtue of judicial resolution or agreement judicially approved in the cases contemplated in the precept.
The constitutive elements of the type are:
a) The existence of firm judicial resolution or agreement approved by the competent judicial authority which establishes any type of economic compensation in favor of the spouse or the matrimony´s children.
b) An omissive behavior by the obliged to the payment consisting in the reiterated lack of fulfillment of the economic compensation set during periods established in the precept, which currently are two months in a row or four not consecutive.
c) An subjective element shaped by the knowledge of the judicial resolution and the will of not fulfilling the obligation of compensation which this imposed.
In this requisite is also integrated the possibility of the subject of attending the obligation imposed, since when the agent is in a situation of impossibility proven of satisfying the compensation, this objective situation excludes the willfulness of the typical behavior and the subsequent absence of guiltiness for being absent the element of unlawfulness, which would be legally founded in an objective situation of a state of necessity or, more concretely, in the concurrence of a cause of unenforceability of another behavior different from the carried out by the subject.”
The legal good protected, is the same that in the previous examples, the family relations, though in this case we can concrete it, in the right of the spouse or children to receive an economic compensation agreed in accordance with the income of the debtor, in a way that is assured the economic solidarity between the members of a family.
In the next point of the article 227, is punished with the same punishment envisaged in its first, to “who leaves to pay any other economic compensation established jointly or only upon one obliged in the cases envisaged in the previous point.”
Lastly, the third point of the article 227 stresses that, the reparation of the damage derived from the crime will include always “the payment of the amounts due.” Therefore, to the concepts included in the article 110 CP, as pertaining to the civil liability derived from the crime (1º The restitution, 2º The reparation of the damage and 3º The compensation of the material and moral prejudices) we should add the amounts not paid yet by the active subject.
Article 228:
The article 228 CP transforms the crime of abandonment of family and lack of payment of economic compensations in two semipublic crimes, requiring the previous report of the person offended or of its legal representative for initiating a criminal procedure.
Remember, that an example of a private crime is the defamation and the slander, for they require the previous lawsuit of the offended or its legal representative, allowing in this case the law that the pardon of the offended extinguishes the penal liability. On the other hand, a public crime are all those which can be prosecuted ex officio, which are the great majority of those regulated in the CP, since except express disposition stating the contrary it is understood that a crime is public.
Concretely the article 228 says:
“Article 228.
The data envisaged in the two previous articles, are only prosecutable previous lawsuit of the person offended or its legal representative. When it is a minor of age, handicapped person needed of special protection or a helpless person, the facts can be also reported by the public prosecutor’s office.
Article 229:
In the article 229, we find another specific case of the more general crime of abandonment of family of the article 226.
The article 229 says:
“Article 229.
1. The abandonment of a minor of age or a handicapped person needed of special protection by the person in charge of its protection, will be punished with the punishment of imprisonment from one to two years.
2. If the abandonment is carried out by the parents, guardians or legal custodians, it will be imposed the punishment of imprisonment from eighteen months to three years.
3. Will be imposed the punishment of imprisonment from two to four years when by the circumstances of the abandonment has been put into a concrete danger the life, health, physical integrity or sexual liberty of the minor of age or of the handicapped person needed of special protection, without prejudice of punishing the corresponding crime if it constitutes a graver crime.”
The typical behavior described in the first point of the article 229 consists in, “The abandonment of a minor of age or a handicapped person needed of special protection by the person in charge of its protection, will be punished with the punishment of imprisonment from one to two years.”
It is a grave typical behavior, graver than the describe in the basic type of the article 226, since it does not talk about the lack of fulfillment of the legal duties of assistance inherent to the parental authority, guardianship, custody or foster care, or of providing the necessary assistance for the nourishment of the descendants, we are talking about a complete abandonment. According to the Spanish Royal Academy Dictionary of the Spanish Language, to abandon means: “To leave alone something or someone getting far from it or not taking care of it.” What implies not only the lack of fulfillment of a simple obligation, but the more absolute abandonment of a minor or handicapped person needed of special protection.
We are again before a malicious crime, which is not possible to commit by imprudence.
Besides, within the article 229 we find two aggravated subtypes of the basic type fo the first point. In the second point of the article 229, the punishment is increased when the abandonment “is carried out by the parents, guardians or legal custodians”. And in the third point of the article 229, is increased the punishment envisaged in the basis type when “by the circumstances of the abandonment has been put into a concrete danger the life, health, physical integrity or sexual liberty of the minor of age or of the handicapped person needed of special protection”. Moreover, at the end of this third point is added, “without prejudice of punishing the corresponding crime if it constitutes a graver crime.” It seems to place us in the sphere of the concurrence of norms of the art. 8 CP, being necessary to punish the facts by the broader or more complex precept (third rule of the article 8 CP).
The legal good protected, in this case too, will be the family relations.
Article 230:
On the article 230 we find an attenuated subtype of the basic type envisaged in the article 229. Attenuated, because the punishment imposed is less severe.
The article 230 says:
“Article 230:
The temporal abandonment of a minor of age or of a handicapped person needed of special protection will be punished, in their respective cases, with the punishments inferior in degree to the envisaged in the previous article.”
Maybe the greater difficulty is to distinguish the temporal abandonment of the article 230, from the abandonment of the article 229. According to the second meaning of the Spanish Dictionary of the Royal Academy of Language, temporal is and adjective which means: “Which lasts for some time.” From this we should understand, that this crime is committed, and not the envisaged in the article 229, when the active subject ends with the abandonment within a certain period of time, something which can never happen with the abandonment of the article 229.
We are again before a malicious crime, and again the legal good protected are the family relations.
Article 231:
It is another specific case of the basic type of abandonment of family of the article 226. The article 231 says:
“Article 231.
1. Who, being in charge of the breeding and education of a minor of age or of a handicapped person needed of special protection, delivers it to a third or a public establishment without the consent of whom has trusted it to it, or of the authority, in its defect, will be punished with the punishment of fine from six to twelve months.
2. If with the delivery has been put into a concrete danger the life, health, physical integrity or sexual liberty of the minor of age or the handicapped person needed of special protection will be imposed the punishment of imprisonment from six months to two years.”
As we can observe, we are before a scenario in which a person does not fulfil the agreement or judicial resolution through which has been granted to him the custody of a minor of age or handicapped person needed of special protection.
The typical behavior consists in, being in charge of the breeding or education of a minor of age or handicapped person needed of special protection, to deliver it to a third or a public establishment without the consent of whom has trusted it to it, or of the authority.
It seems that the only thing that can transform this illicit behavior into licit is the consent of the other parent or the authority who granted the custody.
Besides, if with the delivery “has been put into a concrete danger the life, health, physical integrity or sexual liberty of the minor of age or the handicapped person needed of special protection”, the punishment will be even greater.
Again, we are before a malicious crime, and again the legal protected is the family relations.
Article 232:
The article 232 gives even one more step, and typifies the behavior of using or lending minors of age or handicapped persons needed of special protection for practicing the mendicity.
The article 232 says:
“Article 232.
1. Those who use or lend minors of age or handicapped person needed of special protection for practicing the mendicity, even when this is disguised, will be punished with the punishment of imprisonment from six month to one year.
2. If for the ends of the previous point there is trafficking of minor of ages or handicapped persons needed of special protection, is employed with the violence or intimidation, or is supplied to them substances which damage the health, the punishment of imprisonment will be imposed from one to four years.”
Therefore, in this case the objective type consists in using or lending “minors of age or handicapped person needed of special protection for practicing the mendicity, even when this is disguised.”
Besides, if for carrying out the facts described in the first point of the article 232 is employed violence or intimidation, or is supplied to them substances which damage the health, the punishment is greater.
We are before a malicious crime, which also protects the legal good of the family relations.
“Article 233:
The article 233 says:
“Article 233.
1. The Judge or Court, if they consider it adequate to the circumstances of the minor, may impose to the persons liable of the crimes envisaged from the articles 229 to 232 the punishment of special disqualification for exercising the parental authority or the rights of custody, guardianship, conservatorship or foster care, from four to ten years.
2. If the person guilty has the custody of the minor for its condition of public servant, will be imposed besides the punishment of special disqualification or public employment or charge from two to six years.
3. In any case, the public prosecutor’s office will request to the competent authority the pertinent measures for the due custody and protection of the minor.”
As we can see, through this article is granted to the ruling judge or court the faculty of deciding whether to add the punishment “of special disqualification for exercising the parental authority or the rights of custody, guardianship, conservatorship or foster care” or even of “the punishment of special disqualification or public employment or charge”, to the punishments already envisaged from the article 229 to 232.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com