“Of the civil liability derived from the crimes and the procedural costs” is how is entitled the Title V of the Book I of the Spanish Criminal Code (CP). Title which at the same time is divided into tree chapters, the first “Of the civil liability and its extension”, the second “Of the persons civilly liable” and third “Of the procedural costs”.
In order to comment the articles which comprise the Title V, from the art. 109 to the art. 124 CP, this time we are going to follow the schema proposed by the own CP, thereby firstly we will talk of the civil liability derived from the crime, after that of the persons civilly liable and lastly of the procedural costs.
– The civil liability derived from the crime:
The Chapter I of the Title V dedicated to the civil liabilities and procedural costs begins with the article 109, which says: “1. The execution of a fact described by the law as crime obliges to repair, in the terms envisaged by the laws, the damages caused by it.
- The damaged may opt, in any case, for demanding the civil liability before the Civil Jurisdiction.”
Of the first point of this article 109, we see how the obligation of repairing the damages directly derives of the commission of a fact typified by the CP as crime, or in the words of the High Court of Justice of Madrid in its sentence 10969/2022: “By its part the Supreme Court’s sentence number 63/2015 of 18 February stresses that, the civil liability “ex delicto”, whatever may be the procedural way chosen for its claiming (v. arts. 108 and 111 of the LECrim.), does not demand, for its effectivity, but the proof of the existence of the damage caused by the crime or misdemeanor committed, indicating like is jurisprudential doctrine reiterated (STS. 1253/2005 of 26.10) that only those damages which are the direct and necessary consequence of the criminal fact are to be compensated and to whose compensation is obliged the liable author of the crime or misdemeanor. The civil liability derived from an illicit fact demands as structural element of itself one casualty relation between the action or omission and the damages produced.”
On the other hand, the second point of the article 109, recognizes the possibility that the damaged opts for demanding the civil liability before the civil jurisdiction. The so-called civil liability “ex delicto” has an evident reparatory nature of the damage produced irrespective of whether it is a civil procedure or criminal procedure the followed, not existing, thus, any difference with the known as ordinary non-contractual civil liability of the articles 1092 and following of the Civil Code. Thereby, in both cases is of application the principles of party disposition and congruency. This implies the necessity of determining its amount and demands not to convict for more liability than the requested. Without being allowed that the civil liability “ex delicto” could suppose a motive of unjust enrichment of the damaged.
On account of this civil nature of the civil liability “ex delicto”, it can be exercised along the criminal action or independently in the civil jurisdiction, although if the criminal action is pending the civil cannot be exercised until the criminal procedure ends by firm sentence (art. 111 of the Spanish Criminal Procedure Act). When the criminal action is exercised, it will be understood that the civil action is exercised as well, except when, the damaged renounces to it, or reserves it for after the end of the criminal trial (art. 112 of the Spanish Criminal Procedure Act).
The declaration in the criminal sentence, or later civil sentence, of the civil liability derived from a fact typified as crime, will be only possible in those cases in which this sentence is a conviction, and exceptionally, when it is a judgment of acquittal in the cases envisaged in the art. 118 CP, it also has to pronounce itself about the civil liability “ex delicto”. In consequence, the Public Prosecution is obliged, irrespective of whether there is or there is not private accusation, to exercise the civil action, save when the damaged has renounced or reserved the civil action (art. 108 Of the Spanish Criminal Procedure Act). As the Supremo Court´s sentence number 414/2016 of 17 may says: “Likewise, the Spanish Constitutional Court reiterates (STC 17/2008 of 31 January, citing the 367/1993 of 13 December; the 135/2001 of 18 June; and 15/2002 of 28 January), that in our legal order the criminal procedure is not limited to the exercise and knowledge of the criminal action; on the contrary, in the criminal procedure may be exercised and decided as well the civil action aimed to satisfy the civil liability derived of the illicit fact which constitutes the crime or misdemeanour. Besides, the legislator, for either economic or opportunity reasons, regards that the exercise of the criminal action entails the exercise of the civil action, thereby, except when the damaged by the criminal fact has renounced to the civil action or expressly reserved it for exercising it after the end of the criminal procedure in the corresponding civil trial (art. 112 LECrim), the sentence which ends the criminal procedure, in the case that it is a conviction (and exceptionally, when it is a judgement of acquittal in the cases of the article 118 CP) must also pronounce itself about the civi liability “ex delicto”. To this end, the Public Prosecution is obliged, irrespective of whether there is or there is not private accusation, to exercise the civil action, except when the damaged has renounced or reserved the civil actions (art. 108 LECrim).
Thus, the legislator has wanted that the criminal sentence definitively decides both all the criminal and civil consequences derived form the illicit fact, except in the cases of renouncing or reserve of the civil actions by part of the damaged, for not existing these renouncing or reserve of actions the Public Prosecution is endowed with an extraordinary legitimation or for substitution for exercising, on behalf of the damaged, the civil action which may correspond to them, hence, exercised these actins by the Public Prosecution, the damaged will not be able to exercise them again in a later civil procedure, except when they are civil questions which have not been discussed in the previous criminal sentence.
Hence, once exercised the civil action, either by the Public Prosecution, by the Private Accusation or by both, the Criminal Judge is obliged to resolve the civil liability in the criminal sentence: if there have been debated and fixed determined criminal facts and if these facts have originated damages which must be repair, our laws opt for that these civil questions are resolved within the criminal procedure ( STS. 1333/2004, 19 of November)”.
The civil liability “ex delicto”, may consist in three different actions, according to the article 110: “The liability established in the above article comprehends:
1º The restitution.
2º The reparation of the damage.
3º The compensation of material and moral damages.”
The three actions contemplated in the article 110 do not exclude each other, it means that, in the sentence where is declare the civil liability “ex delicto” may establish one, two or three of them, always that the principles of party disposition and congruency are fulfilled and they do not suppose an unjust enrichment for the convicted, as we have seen at the beginning.
Later, in the art. 111, 112 and 113 are defined and developed, in which consist each of these actions. The art. 111 says: “1. The same good must be restituted always that it is possible, with the payment of the wearing out which the judge or court determines. The restitution will take place though the good is in the possession of a third party and this has legally acquired it and in good faith, but always respecting the right of repetition against who corresponds and, in its case, the right of being compensated by the civil liable of the crime.
- This disposition is not applicable when the third party has acquired the good in the way and the requisites established in the laws for making it unclaimable.”
Hence, the restitution of the good object of the crime must happen always that it is possible, more the wearing out that the judge or court determines. Even when the good, is in the power of a third party who has legally acquire it and in good faith. This does not mean that, besides the restitution of the good, cannot be also agreed the compensation or reparation of the good, but that these last two will have a subsidiary or complementary character always that the restitution of the good is possible. Nevertheless, the restitution of the good is limited to those cases in which we are before crimes with economic character, as the theft or pick pocketing, for in those crimes in which the legal good damaged is personal the restitution will be impossible.
In the article 112 is defined what we should understand by the reparation of the damage: “The reparation of the damage may consist in obligations of giving, making or not making that the Judge or Court will establish with accordance to the nature of it and the personal and patrimonial conditions of the liable, determining if they have to be fulfilled by him or can be executed at his cost.”
And lastly, in the article 113 is established the scope of the compensation: “The compensation of material or moral damages comprehends no only those which have been caused to the damaged, but those which has been caused to his family and third parties.”
The material damages will always be easier to quantify than the moral damages, for them we have only to attend to the market value of the goods affected by the crime. Besides, in the case of the physical damages, we can always use the amount fixed by law for the traffic accidents, which although it is only of mandatory application to the damages arisen from traffic accidents, it does serve as a guidance for the intentional and non-intentional crimes, this does not exclude the possibility that the judge or court may apply this amount if they regard it correct.
For the moral damages the question is always more complicated, neither there exist a law with amounts usable as orientation, nor it is is a good with a market value. But their assessment has been the object of jurisprudential development, and for instance the Supreme Court’s resolution 13694/2022 says that: “the moral damage results as much from the importance of the legal good protected and the the gravity of the action which has criminally damaged it, as from the spiritual meaning that the crime has in relation to the victim (Cfr. STS de 5-10-2007, no 832/2007; STS de 3-7-2007, no 643/2007).”
On the other hand, the art. 113 is referred to the damages caused to the directly damaged by the illicit fact and to those caused to his family and third parties. The jurisprudence has also delimited the concept of third party, and according to the AB Provincial Court´s sentence 666/2022: “third parties are only those who have been directly damaged by the crime and not who are entitled to an action of repetition, nor those which are linked with the victim by contractual relations which are affected by the illicit fact.”
Nevertheless, is possible that the damages suffered by the victim of a crime could be, at least in part, as consequence of his behavior, this is why the art. 114 CP allows to moderate the amount of the reparations and compensations in the cases in which the victim has contributed with his behavior to the production of the damage. Concretely the art. 114 says: “If the victim has contributed with his behavior to the production of the damage suffered, the Judge and Courts may moderate the amount of the reparation or compensation.”
However, this faculty of moderation, according to the Supreme Court’s sentence of 4 May 2022: “cannot be interpreted as a way of compensating different opposing obligations, since only from the commission of the crime arises the obligation of repairing or compensating and from the initial provocation and aggression of the victim, although it may exist, if it is not regarded and sanctioned as crime, does not arise, therefore, any obligation of this kind.”
This chapter of the CP ends with the article 115, which says: “The Judges and Courts, when declaring the existence of the civil liability, will reasonably establish, in their resolutions the basis in which they found the amount of the damages, being able to set it in the own resolution or in the moment of its execution.”
Therefore, the final amount which serves as compensation may be set in the sentence which ends the procedure, or later in the stage of execution. Nevertheless, regardless of the possibility of establishing the compensating amount during the execution of the sentence, in such sentence must always appear the basis for determining the amount of the compensation.
The art. 794 of the Spanish Criminal Procedure Act (LECrim), coincides with the art. 115 of the CP, and although it is expressly envisaged to the Abbreviated Procedure it is also applicable to the Ordinary Procedure. Concretely this article says: “As soon as the sentence is firm, the Judge or Court which has dictated it will proceed to its execution, according to the general dispositions of the Law, observing the following rules:
1º If in the sentence was not set the compensating amount, any of the parties would be able to claim, during the execution of the sentence, the practice of the proofs which they regarded as necessary for its precise determination. This claiming will be communicated to the rest of the parties for allowing to the them, in the term of ten days, to request in writing what to their right they considered as necessary.
The Judge or Court will reject the practice of proofs which do not refer to the basis set in the sentence. Practices the proof, and heard the parties in the common term of fifteen days, will be set by resolution, in the following five days, the amount of the civil liability. The resolution dictated by the Criminal Judge will be appealable before the respective Provincial Court.”
When imposing the corresponding compensation, the judge or court must respect three requisites, which are recalled to us by the IB Provincial Court´s sentence 2252/2022: “a) Necessity of specifying the cause of the compensation; b) Impossibility of imposing a greater compensation than the requested by the accusation, and; c) To temper the discretional faculties of the Court in this subject to the principle of reasonability ( STS 23-1- 2003 )”.”
In order to carry out the execution of the sentence, this has to be firm with accordance to the art. 141 of the LECrim, and of its execution will be in charge “ex officio” the Judge or Court which has dictated the sentence that has achieved firmness (art. 794, art. 985 y art. 988 LECrim). Although the pronouncements about civil liability are susceptible of provisional execution according to the rules of the Spanish Civil Procedure Law (LEC) (art. 989 LECrim).
– Of the persons civilly liable:
After seeing from where the civil liability “ex delicto” arises, in which consist, and where is determined, the second chapter is dedicated to determine the natural or legal persons liable of this civil liability derived from the commission of a crime.
The first article which we find in this chapter is the article 116, which says: “1. All person criminally liable of a crime is also civilly if from the fact are derived damages. If the liable of the crime are two or more the judges or courts will set the quota which should be paid by each.
- The authors and accomplices, each within their respective class, will be jointly liable for their quota, and subsidiary liable for the corresponding to the rest of liable.
The subsidiary liability will be effective: first, in the goods of the authors, and after in those of the accomplices.
In the cases in which is made effective either the joint liability or the subsidiary liability, will be maintained the repetition of who has paid against the rest for the quotas corresponding to each one. - The criminal liability of a legal person will entail its civil liability in the terms established in the art. 110 of this Code jointly with the natural persons which were convicted for the same facts.”
As we can see, the article 116 attributes the civil liability “ex delicto” to the person criminally liable of the crime, but only if from the fact derive damages. Although the above is not wholly right, we have to take into account that there are cases in which is applied some of the exemptions of the art. 20, it would suppose that the subject upon which concurs could not be declare criminally liable, though, if it was any of the three first exemptions of the art. 20, it could be applicable a measure of security. Nevertheless, the relevant, although we have to wait to see the art. 118 to deepen into it is that, the application of the exemptions 1º, 2º, 3º, 5º and 6º, of the article 20 will suppose the exemption of criminal liability, but not of the civil liability which will be established according to the rules of the own art. 118.
We have to remember too that, the minors under the age of eighteen are not criminally liable according to the CP (art. 19 CP). The law which regulates the criminal liability of the minor is the Organic Law 5/2000, of 12 January, which regulates the criminal liability of he minors (LO 5/2000). Another of the points to be taken into account, is that the LO 5/2000 is not of general application to all the minors of age, to the upper limit of eighteen years old established by the art. 19 of the CP we have to add another inferior, the fourteen years old. Therefore, the Organic Law 5/2015 is only applicable to the minors of age between fourteen and eighteen years old, those who do not reach such age are wholly exempted from criminal liability, but this does not include the civil liability which may arise from the crime (art. 1902 of the Spanish Civil Code), of which the minors´ fathers or guardians should respond (art. 1903 of the Spanish Civil Code), but not in a criminal procedure, in the proper civil procedure.
Such LO 5/2000 regulates in its article 61, the way in which will arise the civil liability “ex delicto” to those who are declared criminally liable according to it, which as we have just seen, only can be the minors of age between fourteen and eighteen years old. According to the article 61.3 when the liable of the facts is a minor under eighteen years old will jointly respond with him of the damages caused his fathers, legal guardians or guardians in fact, in this order. Although when these have not favour the behavior of the minor with malice or grave negligence, their liability can be moderated according to the specific cases.
We have to recall too, the envisaged in the art. 69 CP that allows the application of the art. LO 5/2000 to those who commit the crime until the age of twenty-one years old, when a judge agrees it taking into account the personal circumstances and the degree of maturity of the author, and the nature and gravity of the facts. Thereby, the application of the art. 61.3 of the LO 5/2000 can be extended to cases of majority of age.
The criminally liable of the crimes are the authors and the accomplices (art. 27 CP), being able to be authors who commits the crime by his own, jointly or by means of another which they use as a tool, as well as the instigators and the necessary cooperators (art. 28 CP).
In the first point of the article 116 is established that, when there exist more than one liable, either as authors or as accomplices, the judges or courts will determine the quota which corresponds to each one. It is supposed that such quota will be determined by its degree of participation in the crime committed. Besides, according to the second point of the same article 116, the authors and the accomplices, each one within their respective classes, will be jointly liable between them for their quotas, and subsidiarily with respect to the rest of the persons liable.
Lastly in the article 116 is established that, the legal persons will jointly respond along the natural persons which are convicted for the same facts, for the civil liability “ex delicto”. The natural persons which can be convicted along a legal person, are its administrators in fact or law (art. 31 CP), and the legal persons can be only declared criminally liable when it is expressly established by a precept of the CP (art. 31 bis CP).
Others who can also be considered as civilly liable are the mentioned in the art. 117, which says: “The insurers which has assumed the risk of the pecuniary liabilities derived from the uso or exploitation of any good, company, industry or activity, when, as consequence of a fact envisaged in this Code, is produced the event which determines the risk insured, they will be direct civilly liable up to the limit of the compensation legally established or conventionally agreed, without prejudice of the right of repetition against whom corresponds.”
Regarding this article has arisen the doubt, whether the insurers have to respond for the damages caused by the insured when there has been malice, or only when these damages have been the consequence of a negligence. Besides, it is a usual practice of the insurers to include in their contracts with the insured a clause in which is excluded from the scope the insurance the damages causes by malice. It is true that the art. 117 is not really clear, but this doubt is solved when we attend to the art. 76 of the Insurance Contract Act. Concretely, the jurisprudence coming from the courts has ruled that, the insurers have always to compensate the damaged by the crime, irrespective of whether the damages are caused by malice or negligence, without prejudice of the right of repetition of the insurer against the insured in order to recover the compensation granted to the damaged. Let us see it better through this excerpt of the Supreme Court’s sentence 3593/2022: “This Chamber has insisted that this kind of clause lacks any efficacy against the damaged and only applies in the inner relation between insurer and insured. The damaged may demand the payment of the compensation according to the article 76 of the Insurance Contract Act, without prejudice or the right of repetition of the insurer against the insured.
The cited in the appeal Supreme Court´s sentence number 212/2019 of 23 April, is enough expressive of the criterio of this Chamber, which has been confirmed in later sentences, as the more recent Supremo Court´s sentence number 874/2021 of 15 November.
The arguments which sustain our position are not destroyed by the allegations of the appeal which limit themself to reproduce arguments already refuted by our sentence. It is enough, therefore, with reiterating the content of our doctrine. In the cited Supreme Court´s sentence 212/2019, we said the following:
The art. 117 of the CP states that “(…) The insurers which has assumed the risk of the pecuniary liabilities derived from the uso or exploitation of any good, company, industry or activity, when, as consequence of a fact envisaged in this Code, is produced the event which determines the risk insured, they will be direct civilly liable up to the limit of the compensation legally established or conventionally agreed, without prejudice of the right of repetition against whom corresponds.” The literalness of the precept allows to understand, as it has been said, that the reference to a fact envisaged in this Code includes both the malicious facts and the negligences. Departing from this verification, the jurisprudence has affirmed that the exclusion of the possibility of insuring the malice signifies that the insurer is not obliged in any case to compensate to the insured for the damages caused through malice by him, but that that does not imply that, for reasons of social type, it is obliged to compensate the third damaged in this cases, without prejudice of repeating against the insured. In this way, this is not benefited of his own malicious behavior, and the victim is not also damaged by the action of the insured, executed within the ambit envisaged in the liability insurance policy.
In the Supreme Court´s sentence number 526/2018 of 5 November, is stressed that, in these cases, the specific precept which should be applied is the art. 76 of the Insurance Contract Act, according to which “The damaged or his heirs will have direct action against the insurer for demanding to it the fulfillment of the obligation of compensating, without prejudice of the right of the insurer to repeat against the insured, in the case that this is due to malicious behavior of this, the damage caused to the third party.
The direct action is immune to the exceptions which may correspond to the insurer against the insured. The insurer may, nevertheless, oppose the exclusive guilty of the damaged and the personal exceptions which it has against this. To the effects of the exercised of the direct action, the insured is obliged to manifest to the third damaged or his heirs the existence of the insuring contract and its content.”
And later it says: “This norm is interpreted by the Jurisprudence, as it is specified in the Supreme Court´s sentence 338/2011 of 16 April, in the sense that, being risks covered by voluntary insurance against third parties damaged, this Chamber has established that it is not excluded the liabilities for malicious acts of the insured, within the limits of the scope of the insurance agreed, nor can the insurer make use of the exceptions which correspond to him against the latter. ( SSTS 707/2005, de 2-6 ; y 2009, de 27-2). And in the sentence 232/2008 of 24 April, is argument, when reconciling the envisaged in the arts. 1, 19, 73 and 76 of the Insurance Contract Act with the stated by the art. 117 CP, that those precepts have to refer to the relations of the contracting parties, but not being voluntary insurances, to the protection of the victims, to whom must respond directly the insurers.
Therefore, the referred clausal cited by the insurer -stresses the sentence 338/2011- cannot be apposed against the victim or the third party damaged. Its ambit of efficacy has to be limited to the inner relations between the insurer and the insured, but not with respect to the third parties who were damaged by the accident, who has the right to claim directly to the insurer, without prejudice that this later passes the payment to the insured or to the person who caused the accident with his behavior.”
The next article is the article 118, of which in part we have already talked when we commented the article 116. In the article 118 are established the rules which will be of application for determining the civilly liable, when the person liable of a crime has been declared exempted of criminal liability according to the 1º, 2º, 3º, 5º or 6º motives of the article 20 CP, which implicitly is giving us to understand that those who have been declared exempted of criminal liability for the 4º motive, who acts in defense of the person or own or alien rights, or 7º, who acts fulfilling a duty or exercising a legitimate right, job or charge, are not civilly liable either for the civil liability “ex delicto” derived from the facts typified as a crime. Besides, in the second point of the article 118 is also established the civil liability when is appreciated error of prohibition by the judge or court in their sentence.
Concretely the art. 118 says: “1. The exemption of the criminal liability declared in the numbers 1º, 2º, 3º, 5º and 6º of the article 20, does not comprehend the civil liability, which will make affective according to the following rules:
1ª In the cases of the numbers 1º and 3º, are also liable for the facts executed by the declared exempted of criminal liability who have them under their legal authority or legal or in fact guardianship, always that has mediated malice or negligence by their part and without prejudice of the direct civil liability which may correspond to the imputable.
The Judges and Courts will adjust in an equitable way the amount in which have to respond with their goods each on of these subjects.
2ª Are also liable the drunk and the intoxicated in the scenario of the number 2º.
3ª In the case of the number 5º are direct civilly liable the persons in which favor has been avoided the harm, in proportion to the damage which has been avoided, if it is assessable o, in other case, in the way in which the Judge or Court establishes according to their prudent discretion.
When the quotas for which has to respond the interested are no fairly asignable by the Judge or Court, nor even for approximation, or when the liability is extended to the Public Administrations or to the greater part of a population and, in any case, always that the damage has been caused with the consent of the authority or its agents, will be agreed, in its case, the compensation in the way established in the laws and the special regulations.
4ª In the case of the number 6º, will mainly respond who has caused the fright, and in their defect, who have executed the fact.
- In the case of the article 14, will be civilly liable the authors of the fact.”
As we can observe, in the article 118 are distinguished five different scenarios, four of them concerning the exemptions 1º, 2º, 3º, 5º and 6º of the article 20 CP, and one of them which affects to the error of prohibition of the article 14 CP.
In the first of them, is also made liable for the facts committed by the exempted of criminal liability for concurring the 1º or 3º cause of the article 20, who has him under their legal authority or legal or in fact guardianship, always that has mediated malice or negligence by their part. From the literalness of the first point of the article 118, seems to be understood that the liability is shared between those who have under their under their legal authority or legal or in fact guardianship the exempted of criminal liability and precisely such exempt, therefore there exist jointly liability between them when dealing with the civil liability “ex delicto”. Besides, such first point adds that the liability will be without prejudice of the direct civil liability which may correspond to the imputables, thereby in the cases in which there are various criminally liable of a fact, being some of them exempted of criminal liability and some of them no, each of them should respond of the quota of civil liability “ex delicto” assigned to them by sentence, applying in these cases the rules of the art. 116 for determining the joint or subsidiary liability between them. Although, as we have already said, the exempted from criminal liability and who have him under their legal authority or legal or in fact guardianship, should jointly respond of the civil liability “ex delicto”.
In the second scenario of the article 118, are declared civilly liable who have been declared exempted of criminal liability for the application of the second circumstance of exemption envisaged in the art. 20 CP. This means that, although he can elude a punishment, but not the possible application of a measure of security, they must always respond of the civil liability “ex delicto.”
The third scenario of the article 118, is referred to the application of the cause of exemption of criminal liability envisaged in the fifth number of the article 20, in other words, to who has committed a crime in the state of necessity. In these cases, who will be the direct civilly liable will be the persons in which favor has been avoided the harm, in proportion to the harm which has been avoided in their behalf.
The last rule referring to a case of exemption, is the fourth of the article 118. This is referred to the exemption of criminal liability, for having committed a crime moved for an unsurmountable fear. According to this rule, who have to civilly respond will be who has caused the fear, and in their defect who have executed the fact.
And lastly, the last norm which we have to comment of the article 118, is found in its second point, and differing of the rest of the norms that we have seen so far, it refers to the error of prohibition of the art. 14. We have to remember that, the error of prohibition is only applicable when there is no malice, because who execute the fact does not know that this behavior is typified, although this situation is not comparable to the doubt, the illicit fact has to be carried out believing that it is within the legal framework. Yet, even when there is no malice, and the author cannot be regarded as criminally liable, the civil liability will persist, having to respond for the damages caused as consequence of the illicit fact committed.
And the next article 119, says that: “In all the cases of the above article, the Judge or Court which dictates a judgment of acquittal for considering the concurrence of any of the causes of exemption mentioned, will proceed to set the civil liabilities except when the damaged has expressly reserved the actions for claiming it in the way which corresponds.”
This article makes us to recall the necessity that, irrespective of whether there has been appreciated some of the causes of exemption of criminal liability of the number 1º, 2º, 3º, 5º or 6º of the article 20, the procedure must end by means of the corresponding sentence with the end of determining the the civil liability “ex delicto” in it, or at least, the basis for its determination for later being specified in the stage of execution of the sentence. Besides, the sentence will also serve for determining the security measures which must be imposed when there has been appreciated the exemptions 1º, 2º, or 3º of the article 20.
It is important to make this clarification, because one of the motives of acquittal on all charges of a cause is “When appear exempted of criminal liability the committed for trial as authors, accomplices or accessories after the fact” (art. 637.3º LECrim).
Mainly there exist two kinds of procedure in the LECrim, the Ordinary Procedure and the Abbreviated Procedure, depending on the gravity of the punishment with which is punished the crime investigated. On the one hand, the Abbreviated Procedure is for the trying of the crimes punished with a freedom´s privative punishment which does not exceed the nine years, or any other punishments of different nature. On the other hand, the Ordinary Procedure is for the trying of the crimes which exceed the above threshold for being graver.
Both procedures are really similar, but there also exist important differences between both, above all during the so-called intermediate stage of the procedure. While in the Ordinary Procedure the Examining Magistrate has only the capacity of concluding the stage of investigation and who decides about the opening of the oral trial is the Court which will rule the case, in the Abbreviated Procedure who agrees the opening of the oral trial is the Examining Magistrate.
With independence of the above differences, always that it is appreciated the exemption of criminal liability for any of the motives 1º, 2º, 3º, 5º and 6º of the art. 20 of the CP, the parties of the procedure must present the writings of provisional qualification of the crime, continuing the trial until sentence, in order to impose the measure of security and the trial of the civil action, according to the cases envisaged in the CP (art. 782.1 LECrim).
The next article is the art. 120, which establishes five different cases according to which there exist subsidiary civil liability, in other words, when the direct civilly liable of the fact, who will be the same person criminally liable except in the cases of the art. 118, either does not respond or only respond in part, will be the persons mentioned in the art. 120 who have to compensate the damaged by the crime of the damages caused by it.
Concretely, the art. 120 says: “Are also civilly liable, in the absence of the those who are criminally liable:
1º The fathers and guardians, for the damages caused for the older than eighteen years old subjected to their parental authority or guardianship and who live in their company, always that there is by their part malice or negligence.
2º The natural or lega persons owners of publishing companies, newspapers, magazines, radio or television station or any other media of writing, talked or visual diffusion, for the crimes committed using the media of which they are owners, being also applicable the envisaged in the article 212.
3º The natural o legal persons, in the cases of crimes committed en the establishments of which they are the owners, when whom they supervise or manage, or their shop assistant or employees, have infringed the police regulations or the dispositions of the authority related with the fact committed, so that this would have not been committed without such infringement.
4º The natural or legal persons, dedicated to any gender of industry or commerce, for the crimes committed by their employees or shop assistants, representatives or agents in the carrying out of their obligations or services.
5º The natural o legal persons owners of vehicles capable of creating a risk for third parties, for the crimes committed in the using of them by their shops assistants or representatives o authorized persons.”
As we see, in the first number is established the subsidiary civil liability of the fathers or guardians for the damages caused on account of the crimes committed by the older than eighteen years old subjected to custody or guardianship and who live in their company, always that has been by their part either malice or negligence.
Here we have to take into account what we have already seen concerning the article 116, the LO 5/2000 which regulates the criminal liability of the minors, can also be applicable to those who have committed a crime up to the age of twenty-one years old, when the Judge agrees it attending to the personal circumstances and the degree of maturity of the author, and the nature and gravity of the facts (art. 69 CP). In the cases in which is applicable the art. 69 CP, the civil liability of the fathers and guardians will be ruled by the stated by the article 61.3 of the LO 5/2000, when the person liable of the facts committed is a minor under eighteen years of age, will jointly respond with him of the damages his fathers or legal or in fact guardians, in this order.
In the second point of the article 120, are made subsidiary liable the natural or legal persons owners of publishing companies, newspapers, magazines, radio or television stations or any other media of writing, talked or visual diffusion, for the crimes committed using the media of which they are the owners. For these kind of crimes, committed by means of the printing press, the engraving or any other media, there exists an specific procedure in the LECrim (art. 816 – 823 bis LECrim), which also aims the procedure against the persons subsidiary liable in this second point of the article 120, when it is no possible to find out the identity of the real author of the writing or picture, or when for being domiciled abroad or for any other cause of the specified in the CP can not be prosecuted (art. 819 LECrim), as for instance being exempted of criminal liability for any of the causes of the art. 20 CP.
When the art. 819 of the LECrim is applicable, the mentioned in the second point of the article 120 will not be subsidiary liable but direct liable. Besides, this second point of the art. 120 adds that, for the cases in which the crime committed is of slander or calumny, there will exist joint liability between the natural or legal person owner of the media used for spreading them nd the author of them (art. 212 CP).
The third scenario of the article 120, attributes the subsidiary liability to the natural or legal persons, in the cases of crimes committed in the establishments owned by them, when by those whom they supervise or manage, or their shop assistants or employees, have been infringed the police regulations or the dispositions of the authority related with the fact committed, in such a way that it would have not been committed without this infringement.
By its part, the fourth point of the art. 120 attributes the subsidiary liability to the natural or legal persons dedicated to any gender of industry or commerce, for the crimes committed by their employees or shop assistants, representatives or agents in the carrying out of their duties or services. Here we can bring up the Supreme Court´s sentence 3356/2022, which helps to us to delimit the scope of the subsidiary liability mentioned in this point of the art. 120. For instance, this sentence says:
- “ It does not impede the application of the envisaged in the art. 120.4 CP; when as happening in this case, the offender and the alleged subsidiary liable are linked by a laboral relation, which the jurisprudence admits that it can be legal or in fact or by any other relation, by virtue of which the first is under the onerous or free, durable and permanent, or purely circumstantial and sporadic dependence, of its principal, or, at least, that the task, activity, mission, service or function which carries out, has the approval, consent or acquiescence of the alleged subsidiary liable; and on the other hand that, the crime which generates the liability has to be inscribed within the normal or abnormal functions carried out in the activity, entrusted to the offender, pertaining to his sphere or ambit of application one extensive interpretation which seems limited neither by the principle of “in dubio pro reo”, nor by the principle of presumption of innocence, of the sanctioning norms, being admitted that in the configuration of the first requisite, the dependence, are integrated situations of friendship, liberality, acquiescence or approval, and in the requisite of functionality, the potential use of the act of the company, organism to whose service was the shop assistant.”
- “The abuse of authority is included in the service, for with difficulty would be generated the civil liability when the shop assistant properly fulfills all his duties, always that this did not lose the ambit or sphere of actuation constituted by the criminally liable and the subsidiary liable.
As this Chamber pointed out in the sentence 1557/2002:
“There are always abuses of authority when there is committed a crime”, an idea which exposed in the sentences 1491/2000, 1561/2002 and 1372/2002, among many others.
Furthermore, the requisite demanded for the application of this article 120.4 CP, does not have any to do with the fail to comply or not of the accused with respect to the ordered by his principal. The condition demanded is narrowed to the condition that the criminally liable has to have acted with some dependence in relation to the company, dependence which is not broken with such abuses of authority. This, consequence of the interpretation of those two requisites must be carried out with range ( STS 27-6-2012, no 569/2012), being based the foundation of such subsidiary liability not only “in the traditional pillars of the “guilt in eligendo and the guilt in vigilando”, but as well above all in the theory of the risk, according to the principle “qui sentire commodum, debet sentire incommodum» ( SSTS. 525/2005 of 27 April, 948/2005 of 19 Julio), according to which who is benefited of activities which in any way may generate a risk for third parties must endure the eventual negative civil consequences with respect to those third parties when they are damaged, admits even the application of this class of civil liability in the cases in which the activity developed by the criminal cannot produce any benefit in its principal “being enough for this some dependence, in the way in which is subjected such activity, to the willingness of the principal, for having this the possibility of affecting it”, what constitutes an unequivocal version of the theory of creation of the risk mentioned above ( STS 264/2022, of 18 March).”
Lastly, in the fifth and last point of the article 120 is established the subsidiary liability of the natural or legal persons owners of vehicles capable of creating a risk to third parties, for the crimes committed in the use of such vehicles by their shop assistants or representatives or authorized persons.
The next article which we should comment is the article 121, which says: “The State, the Autonomous Regions, the province, the isle, the town and the rest of public entities, according to each case, subsidiarily respond of the damages caused for the criminally liable of the crimes committed with either malice or negligence, when these are authority, employees and hired of them or public servants in the exercise of their charges or functions always that the damage is direct consequence of the functioning of the public services which have been entrusted to them, without prejudice of the patrimonial liability derived of the normal or abnormal functioning of such services demanded according to the norms of the administrative procedure, and without being never possible a double compensation.
If was demanded in the criminal procedure the civil liability of the authority, employees or hired by it or public servants, the claim should be aimed at the same time to the alleged Administration or public entity subsidiary liable.”
In the article 121, is established the subsidiary civil liability of the State, Autonomous Region, province, the isle, town and the rest of public entities, for the crimes committed with malice or negligence, by authorities, agents and hired or public servants of them, always that the damage is the direct consequence of the functioning of the public services entrusted to them.
And lastly, with the article 122 ends this second chapter. In this article we find the so-called civil receiving. The article 122 says: “Who on account of lucrative title has participated in the effects of the crime, is obliged to the restitution of the thing or the repair of the damage up to the amount of his participation.”
The civil receiving, regulated in the art. 122 CP, is how is denominated the case in which a third party alien to the crime, a third party who has participated neither as author, nor as accomplice, takes advantage through lucrative title of the effects derived from it. This third party, is obliged to either the restitution of the thing or the repairing of the damage up to the amount of his participation. In order to be able to talk about civil receiving, the third party has to have an absolute ignorance of its illicit origin, otherwise he would be criminally liable according to the art. 298 CP.
According to the Supreme Court´s sentence number 4033/2018, the characteristics of the third party who participated through lucrative title are: “1º) There must exist a legal or natural person, since it is the demand of a civil liability and this is susceptible of being carried out against the social entities with personality recognized by the law, who has participated into the effects of the crime, in the sense of having taken advantage of them through lucrative title, therefore are excluded the acquisitions by virtue of business to which this denomination is not applicable.
2º) The acquirer has to have the mere knowledge of the acquisition and to ignore the existence of the commission of the crime from where come the effects, to the end of avoiding the application the “crimen receptionis” in the concept of author, accomplice or accessory after the fact. The conviction as criminally liable suppose the application of the art. 116 CP and not the art. 122 CP.
3º) Therefore it is not a civil liability “ex delicto” but it is founded in the principle that no one can enrich itself from a contract with an illicit cause (art. 1305 of the Spanish Civil Code). Thus, it is a manifestation applicable to the criminal order according to which is not possible his enrichment with by illicit cause ( STS 324/2009, of 27-3).
4º) Such liability is joint along the author material author (or accomplice) of the crime, but with the limit of the amount taken advantage. In other words, his liability is joint with the criminally liable up to the amount taken advantage/ lucrative enrichment which he has had.”
In order to solve any doubts concerning what should be understood by transmission through lucrative title, we can make use of this little excerpt from the Supreme Court´s sentence 6417/1995: “It is convenient to clarify that, in the transmissions through lucrative title, unlike the onerous, there exist no consideration satisfied by who receives the goods and rights, thereby such operations do not exteriorice or generate a determined price.” In other words, it is a transmission without financial consideration or whatever another consideration of any kind.
Here we have to stop, in order to clarify the way in which these third parties, who are jointly or subsidiary liable, take part into the criminal procedure. In the LECrim we can find the Title X of the Book II, entitled “Of the civil liability of third parties”.
According to the article 615 of the LECrim: “When during the stage of investigation appears the existence of civil liability of a third party according to the respective articles of the CP, or for having participated any of them through lucrative title of the effects of the crime, the Judge, at the request of the civil claimer, will demand bail against the persons liable. If it is not given, the law clerk will seize according to the Title IX of this book the goods necessaries.”
Therefore, in the stage of investigation to these third parties civilly liable, jointly or subsidiary, according to the art. 119, 120, 121 and 122 of the CP, can be applicable a real preventive measure, the bail, since the moment that in the stage of investigation they appear as civilly liable. Here we find an important difference, with respect to the bail and seizure demandable to the direct civil liable, in the case of the civil liability of third parties will be demanded bail or seized goods only for the amount of the civil liability derived from the procedure which comprehends the restitution, the repair of the damage and the compensation of the damages (art. 110 CP), in consequence here are not included the costs of the procedure, nor the rest of the concepts included in the art. 126 CP. Moreover, it is a faculty of the civil claimer to request to the judge the preventive measure with the aim of guarantee the payment of the civil liability of the third parties (art. 615 LECrim), unlike what happens with the preventive measure of bail and seizure of the art. 589 and following, applicable against those allegedly criminally liable of the crime, which is a responsibility of the Examining Magistrate.
Nevertheless, the application of the preventive measure of bail or seizure is not an essential requisite to bring the third party civilly liable to the procedure, the third parties civilly liable must be called to the procedure when the parties of the criminal procedure have to qualify the crime at the end of the investigation (art. 652 LECrim), is then when their participation in the criminal procedure is mandatory. This excerpt from the STS 479/2007 is interesting regarding the above: “Unlike the imputed, who has to be held as such during the stage of investigation previously to the formulation of accusation against him, the law does not establish as requisite for the exercise of the civil action that, before the presentation of the writing of provisional conclusions, has to exist a formal declaration of civil liability which has the nature of condition of requisite of procedure (STS 2162/2001, of 14 November and STS 136/2001, of 31 January). Therefore, the adoption of preventive measures during the stage of investigation, which is envisaged in the art. 615 for the Ordinary Procedure and in the article 764 for the Abbreviated Procedure, is not a previous requisite for the possibility of bringing to the procedure those against whom the accusations are claiming in such a concept. The claiming from the accusations regarding the civil liability has to be made with provisional character in the writing of provisional conclusions of the articles 650 and 781 of the LECrim, without being necessary to make it before this moment.”
– The procedural costs:
According to the art. 123: “The procedure costs are understood imposed by the law to the criminally liable of all crime.”
Therefore, according to the art. 240 of the LECrim as well, the procedural costs must be always imposed to the convicted, included those of the private accusation.
Concerning the popular accusations the article 123 does not say anything, but the jurisprudence has followed a contrary criteria with respecto to the above. Let us see this excerpt from the Bilbao Provincial Court´s sentence 1358/2022: “Being derived the above from the jurisprudence gathered in the Supreme Court´s sentences number 703/2001 and 29 March 515/1999, according to which: “it has been clearly distinguished the procedural costs corresponding to the private accusation and the popular accusation, in the sense that proceeds the imposition of the firsts to the convicted, always that the corresponding accusatory actuation has been normally developed, without being possible to consider its intervention as irrelevant, superfluous or even disturbing of the normal development of the procedure, or absolutely contrary to the position of the public prosecution ( sentences of the Supreme Court of 8 February and 3 April of 1995 , of 2 February 1996 , among others); for the latter is maintained the contrary criteria, since in the popular accusation does not concur the characteristics of the private accusation, in which there exist a direct offended by the infringement who besides normally intervenes into the procedure as civil claimer in his condition of damaged by the criminal infringement.”
Lastly, this chapter ends with the article 124, which says: “The procedural costs will comprehend the rights and compensations derived from the judicial actuations and will always include the fees of the private accusation in the crimes only prosecutable at instance of the aggrieved party.”
The payments made by the convicted or the subsidiary liable will be assigned in the order established by the art. 126: “1º To repair the damage caused and to the compensation of the damages.
2º To the compensation of the State for the amount of the expenses made by it during the procedure.
3º To the procedural costs of the private accusation when it is imposed in the sentence its payment.
4º To the rest of the procedural costs, even the expenses corresponding to the defense of the accused, without preference between the interested.
5º To the fine.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com