“Of the crimes against the natural resources and the environment”, is the title of the Chapter III, of the Title XVI, of the Book II, of the Spanish Penal Code (CP). It is a chapter made up of eight articles, most of them reformed by the Organic Law 1/2015, of 30 March. Let us study them.
– Article 325:
The article 325, is the first that the CP dedicates to the protection of the legal good natural resources and environment. It is an article formed by two points, a first, which may be regarded the basic type, and a second, which may be considered as its aggravated subtype, although this distinction is not very clear, like we are going to see later. Before studying it in detail, let us read it. The article 325 says:
“Article 325.
1. Shall be punished with the punishments of imprisonment from six months to two years, fine from ten to fourteen months and special disqualification for profession or trade from one to two years whoever, contravening the laws or other dispositions of general character protecting the environment provokes or carries out direct or indirectly emissions, discharges, radiations, extractions or excavations, landfillings, noises, vibrations, injections or deposits, in the atmosphere, the ground, the subsoil or the terrestrial waters, subterranean or maritime, including high seas, even affecting the transboundary spaces, as well as the water intakes which, either by themselves or jointly with others, cause or may cause substantial damages to the quality of the air, soil or of the waters, animals or plants.
2. If the previous behaviors, by themselves or jointly with others, may gravelly damage the balance of the natural systems, shall be imposed a punishment of imprisonment from two to five years, fine from eight to twenty-four months and special disqualification for profession or trade from one to three years.
If it is caused a grave risk for the health of the persons, shall be imposed the punishment of imprisonment in its superior half, being possible to reach the superior in degree.”
As you have been able to observe, it is an article which may be a good example of lack of clarity. The legislator has spoiled it, adding a great number of typical behaviors, objects of the crime, a reference to other laws, and a second point, with a confusing nature, it can be either an autonomous type or an aggravated subtype of the previous. It seems a receipt to which too much ingredients have been added, not having any specific savor when you taste it. Pay attention to this excerpt from the Spanish Supreme Court´s sentence number 1022/2021, criticizing, deservingly, this article 325: “5.3.2.- The art. 325 opens the chapter concerning the “Crimes against the natural resources and the environment”. After the reform carried out by the Organic Law 1/2015, 30 March, the casuistry with which is described the typical action and the evident mistakes of legislative technique have multiplied the interpreting problems which already existed regarding the original wording. The doubts concerning the content of the unjust comprehended by such precept, far from having been repaired, have been made more intense. For when to the controversial technique of the blanket penal law is added an uncontrolled number of verbs and nouns which seek to comprehend in the space of typicity all imaginable action, the result is a precept -singularly the point second- which, as the dogmatic has already manifested, arises the doubt of whether it is a basic or aggravated type.”
Nevertheless, although it may not have the best of the wordings, we cannot avoid it, as it does not exist. We have to roll up our sleeves, open our eyes, and start which at first sight seems an arduous work.
Art. 325.1:
When we start reading the article the first thing that we find is the punishments which must be imposed to the person liable of the facts, punishments which have also been criticized by the already mentioned Spanish Supreme Court´s sentence number 1022/2021, for the way in which they have varied along the years, making difficult to understand the criterion followed by the legislator to either an expert jurist or a simple citizen. This is another excerpt from the Spanish Supreme Court´s sentence number 1022/2021: “It appears impossible to explain that the criterion of criminal policy which determines the association of a punishment to the disvalue of forbidden behavior, is as changing.
Thus, regarding the duration of the punishment of imprisonment, the original wording of the CP of 1995 punished the contravening of laws and regulations protecting the environment, when it was accompanied of the emission of discharges, radiations, extractions and the rest of polluting actions, with the punishment of imprisonment from six months to four years. If the risk of grave damages was for the health of the persons, the punishment of imprisonment had to be imposed in its superior half. This penal reply was maintained in the reform carried out by the Organic Law 15/2003, of 25 November. However, the modification of the Organic Law 5/2010, of 22 June, supposed a change in the punishment of imprisonment, which was risen from 2 to 5 years, maintaining the aggravation, in its superior half, for the cases of grave risk for the health of the persons. The last reform carried out by the Organic Law 1/2015, of 30 March, incorporated a sensible decrease in the punishment of imprisonment, which passed from a maximum limit of five years, to a punishment from six months to two years, with aggravation for the cases of grave affectation of the health of the persons which, as novelty, now can be risen “…up to the superior in degree.”
Let us now pass to the really interesting. After reading the punishments, we find an essential objective element of the type, the illicit behaviors are those which are expressly forbidden by an administrative disposition or out of the limits authorized by it. This is what is known as a blanket penal norm, legislative technique which has also been criticized for possible infringement of the principles of reservation of organic law (art. 81.1 of the Spanish Constitution) and of legality, when the punished behavior is not defined with the precision and clarity which is required by that principle. However, the Constitutional Court has backed the old article 347 bis, where was classified the ecological crime, in its sentence of 28 February 1994. The Spanish Supreme Court´s sentence number 2940/2021 says, regarding aforementioned sentence and ecological crime: “not always the so-called blanket penal norms are contrary to the principle of legality, and it affirms that they are constitutionally admissible whenever the regulatory referral is express and is justified on the basis of the legal good protected and that the law, besides pointing out the punishment has the essential nucleus of the prohibition and is satisfied the requirement of certainty, in other words, of enough concreteness in order that the behavior classified as criminal is sufficiently determined. Hence, it is stated in the cited sentence that the article 347 bis CP gathers the requisites of “lex praevia, certa and scripta” constitutionally required since it formulates an express and complete reference to the specific norms and defines the essential nucleus of the forbidden behavior, referring to the type only for one circumstance, that those acts are realized contravening laws or protecting regulations of the environment.”
An example of administrative disposition, which completes the penal law, is the Law 37/2003 of the Noise. Pay attention to the fact, that in it are established a system of infringements and punishments, leaving to the penal order only those behaviors which for their special gravity, for the way in which they affect to the legal good, deserve the severest punishment at the disposal of the State.
We continue, and the next thing that we find are the behaviors punished. It is punished to provoke or carry out direct or indirectly emissions, discharges, radiations, extractions or excavations, landfillings, noises, vibrations, injections or deposits, as well as the water intakes. Like we said before, the legislator has tried to cover of the damaging behaviors possible, enumerating one after another, all those which according to his criterion may damage the legal good protected. Moreover, pay attention to how it begins, punishing whoever “provokes or carry out direct or indirectly”, it seems that anyone who participates, in one way or another, in any of the mentioned behaviors may be author of the facts.
Afterwards, we find the different objects of the crime. These damaging behaviors for the environment have to be carried out on the atmosphere, the ground, the subsoil or the terrestrial waters, subterraneous or maritime, including the high seas, affecting even the transboundary spaces. Again, we have to do the same observation, the legislator has tried to mention all those means in which the legal good environment is materialized.
At the end of this first point, the legislator says more interesting things. Firstly, that it is indifferent whether by itself the typical behavior is harmful, it must be punished too, when it is harmful along another.
Secondly, that the crime is consummated in two different ways, either causing damages or being able to causing them. This is very interesting, because of this, the doctrine has shaped this crime as a crime of hypothetical danger, with being suitable to cause a damage the behavior is enough in order to understand the crime consummated, without being required that this risk has put a concrete person or thing into danger. Pay attention to this excerpt from the Spanish Supreme Court´s sentence number 2940/2021: “Indeed, in the cases of hypothetical danger, also denominated abstract-concrete danger, of potential danger or crime of aptitude, it is not punished a concrete result of danger, but a suitable behavior to produce a danger to the legal good protected. In the crimes of hypothetical danger, it is necessary, although also enough, the execution of a dangerous action suitable to produce a danger to the legal good protected. The characteristic of this criminal sector is that it implies the possibility, not the reality, of the concrete danger for the legal good protected. The crimes of hypothetical danger are, crimes of possible danger. They are situated at the level of creation of the risk, but linked to the real danger of the action and not to an effective damage to the legal good, thereby in those cases although the crime requires an action which for its natural properties is susceptible of being considered according to a judgement of forecast, as dangerous for the object of protection, the judge should verify besides if in the concrete situation has been possible a contact between action and legal good, by which virtue it would have produced an effective danger for this. It has to arise, the hypothesis of whether the action proven dangerous would have been able to determine a dangerous result for the concrete case. Although when this contact does take place we will be before a crime of concrete danger.”
An example of a crime of concrete danger, which is similar to a crime of result, is the crime of infringement of the norms of prevention of labor risks (art. 316 CP). In this case, it is not require a mere possibility, but the creation of a real risk, which effectively has put into danger the legal good protected by the norm, the security of the workers. If we compare the precepts, we see a great difference in their wording, the article 316 states “thus which puts in grave danger its life, health or physical integrity”, while the article 325 says “cause or may cause substantial damages”. On the grounds of this difference, is based the different interpretation that the doctrine has made of them.
And thirdly, that the damages caused or which may be caused to the quality of the air, the ground or the waters, or to the animals or plants, have to be substantial. Here, we should repeat what we said before, when we mentioned the Law of Noise already has a system of infringements and punishments. That the penal law, is always the last option, thus, it has to be used only to punish those cases in which the legal good protected by the norm has been put into a real and grave danger. To put it differently, the penal order will punish what has surpassed the limits of the administrative order.
Up to now, we have analyzed the objective elements of the type. Let us now study the subjective. In this case, the malice of the active subject consists in knowing that with his action or omission he is contravening the stablished a norm protecting the environment, and, consequently, that he is making arise the possibility of putting into grave danger the legal good protected by it. Hence, it is going to be enough with the eventual malice, in which the active subject foresees as probable the fulfilment of the objective elements of the type. This excerpt from the Spanish Supreme Court´s sentence number 1022/2021, is clear: “On the other hand, from the subjective point of view, the malice of this crime consists in knowing that the action carried out, in this case the acoustic emissions, generates a grave risk in the legal good thereby existing a willfulness in the causation of the risk and the representation that the interaction may generate the damages which in the case are declared proven, what is corroborated when knowing the lack of fulfillment of the norm, knowing the result produced, the action is still carried out and the perturbing result is maintained in the time (…). Normally, it will be an eventual malice since the damaging behavior of the environment will be limited to put into risk as result of the action the legal good with knowledge of the action which is developed and the potentiality of the risk” (Spanish Supreme Court´s sentence number 431/2018, of 27 September)”.
Notwithstanding the above, careful, because the legislator has wished to extend the protection of the legal good protected by the norm, the environment and the natural resources, punishing the grave imprudence in its article 331, for any of the crimes regulated in this Chapter III. This implies that, not any kind of imprudence may be punished, but only those affecting the legal good with enough intensity to be considered as grave. From another point of view, there has to be an omission of an important norm of care, regardless of whether it has been imposed by a norm or socially.
Art. 325.2:
This second point, was one of the novelties introduced by the Organic Law 1/2015, of 30 March (LO 1/2015). As we already saw, its introduction was criticized, since it is not clear the connection between both precepts. Until the entry into force of the Organic Law 1/2015´s reform, the possibility of gravelly damaging the natural systems, was one more of the objective elements of the type of the first point, it was only the creation of a grave risk for the health of the persons what gave rise to the application of an aggravated subtype, with the imposition of the punishment in its superior half.
In my opinion, this second point looks like an autonomous type altogether, for the simple fact, that the legislator has not made use of the typical formula imposing the punishment superior in degree or in its superior half, but imposes a new punishment, much severer than the established in the first point. In any case, this distinction does not affect to their application, being more an academic discussion.
Like we said before, what distinguishes the application of both precepts is the intensity with which is affected the legal good with the action or omission of the active subject. For, although both precepts use a different terminology for referring to the object of the crime, one of them the quality of air, the ground or of the water or the animals or plants, and the other simply the balance of the natural systems, it seems evident that they are talking of the same thing, the quality of the air, the ground or the water, or the life of animal or plants cannot be affected without putting into danger the balance of the natural systems. And the opposed is also valid, for the balance of a natural system is going to be affected, when the quality of the air, water or ground, or the life of animals or plants, are put into danger. Though, the doubt may arise, whether with the balance of the natural systems the legislator has wanted to cover something broader than with the already covered by the first point. In any case, it is not less true that, if the damage caused was substantial, the first point should be applied, while when the damage caused was grave, the precept applicable should be the second, for a substantial damage should be considered a damage of less intensity than a grave damage. For this purpose, the Dictionary of the Spanish Royal Academy of the Language (DRAE), defines substantial as important, while grave, as of much entity or importance, what backs this interpretation of the precept.
This second point has also a second paragraph, with which now there is no doubt of its nature, since it clearly appears an aggravated subtype of the first paragraph. In this case, the punishments should be imposed in their superior half, being possible to reach the superior in degree, when it is caused a grave risk to the health of the persons. The question now is, what happens when the risk of great damage to the health of the persons has been materialized, causing a real damage to this health, or even, the death? In my opinion these cases should be solved according to the rules of the article 77.1, in other words, there is going to be an ideal concurrence of crimes, either with a crime of injuries (art. 147 and following CP) or of homicide (art. 138 and following CP).
Like in the first point of this article 325, the malice will consist in the knowledge by the active subject of both the infringement of the environmental norm and the risk generated with this infringement. Being enough, the most usual scenario, the eventual malice, where the active subject imagines as probable the fulfillment of the objective elements of the type with his behavior.
– Article 326:
The article 326 has the particularity of being aimed at wastes, otherwise being very similar to the article 325. The article 326 says:
“Article 326.
1. Shall be punished with the punishments established in the previous article, in their respective cases, whoever, contravening the laws or other dispositions of general character, collects, transports, valorizes, transforms or makes use of waste, or does not control or watch adequately such activities, in a way which cause or may cause substantial damages to the quality of the air, the ground or the waters, or to animals or plants, death or grave injuries to persons, or may gravelly damage the balance of the natural systems.
2. Whoever, out of the scenario established in the previous point, transfers an amount not negligible of wastes, either in the case of one or of various transfers which are linked, in some of the scenarios to which is referred the Law of the European Union concerning the transfer of wastes, shall be punished with the punishment of imprisonment from three months to one year, or fine from six to eighteen months and special disqualification for profession or trade from three months to one year.”
The article 326 is also difficult to interpret, but anyway, let us give our best.
Art. 326.1:
The first thing that the article 326 says is that, the behaviors established in it should be punished with the punishments of the previous article, in their respective cases, depending on the object of the crime and the intensity with which it has been affected, the imposition of one or another.
We continue, and the next thing of which the precept informs us, is about one of its objective elements, for considering the behavior as illicit it has first to contravene the established in a law or another disposition of general character, in other words, the article 326, like the article 325, is a blanket penal norm, which may also enter into conflict with the principles of reservation of organic law and legality (art. 81.1 of the Spanish Constitution). However, it does not seem that this precept is going to be a problem, for, like we said before for the article 325, the Constitutional Court has considered adjusted to the law a blanket penal norm, whenever, the regulatory referral is express and it is justified by the legal good protected, and that the law, besides establishing the punishment, contains the essential nucleus of the prohibition and is satisfied the requirement of certainty, in other words, of enough concreteness for defining the criminal behavior.
Afterwards, we find the typical behavior, it is punished those who, collect, transport, valorize, transform, dispose or make use of waste, or do not control or watch adequately such activities.
The next thing important that we read, is the ways in which can be consummated the crime, substantial damages has to be caused or there has to exist the possibility of being caused. Then, the legislator has shaped the article 326, like the article 325, like a crime of hypothetical danger, for the typical behavior will be enough with being suitable to cause a damage. Not being, on the other hand, required to have generated a specific risk for determined legal good, for in these cases, we are going to be before a crime of concrete danger.
Regarding the object of the crime, they are the same than the exposed in the article 325, maintaining, likewise, the structure for imposing the different punishments mentioned in it. To cause or to be able to cause substantial damages to the quality of the air, of the ground or of the waters, to animals or plants, will be punished with the punishment of imprisonment from six months to two years, fine from ten to fourteen months and special disqualification for profession or trade from one to two years (art. 325.1 CP). To cause or to be able to cause grave damages in the balance of natural systems, with a punishment of imprisonment from two to five years, fine from eight to twenty-four months and special disqualification for profession or trade from one to three years (art. 325.2 CP). And to create a grave risk for the health of the persons, will determine the imposition of the previous punishments in their superior half, being possible to reach the superior in degree (art. 325.2 CP).
Another question is, what happens when the grave damages or even the death are caused? The answer should be the same that we gave for the article 325, there should be an ideal concurrence of crimes (art. 77.1 CP), between the article 326, and the crime of injuries (art. 147 and following CP), or the crime of homicide (art. 138 and following CP). And, if there is more than one person affected? In these cases, there should be a real concurrence of crimes of the article 73 CP, between the ideal concurrence of crimes of each person affected.
Changing to the subjective elements of the type, there will exist malice when the active subject carries out his behavior knowing the objective elements of the type, in other words, knowing that he is contravening the established in a norm and creating a not allowed risk for the legal good protected by this. It is going to be enough with eventual malice, with knowing the active subject the high probability that exists of contravening a norm and causing with his behavior a damage to the legal good protected by this norm, a scenario which in the practice is going to be the more usual. We cannot discard either, its commission by grave imprudence, although these cases are punished according to the article 331, being, in this way, covered, the cases in which the active subject has not imagined, in no event, the causation of the danger or the damages, but he has omitted to fulfill a basic norm, important, of care, regardless of whether it has been imposed by a norm or socially.
Art. 326.2:
Here it is even more complicated the interpretation of the precept. This second point is also aimed at wastes, but the typical behavior is only the transfer of a not negligible amount of wastes. The problem is to interpret, what is a not negligible amount of wastes, 500 kilograms?, one ton?, two? The judges and courts are going to be in charge of determining it, case by case.
Another problem is that, the second point is only applicable when we cannot apply the first point. How do we have to interpret it, when one of the scenarios covered by the first point is the transport of wastes?, does it mean that, it is not the same the transport of wastes than the transfer of wastes?
And another problem is that, for understanding the precept we have to know also the scenarios to which is referred the Law of the European Union concerning the transfer of wastes. In my defense I say that maybe the answer to this question is in the Regulation (EU) No 2024/1157 of the European Parliament and of the Council of 19 April 2024, concerning the transfer of wastes.
Then, we can conclude that, the legislator has not made us any favor writing this precept.
Like in the first point, there is going to be malice when the active subject knows that his behavior will fulfill the objective elements of the type, something which does not seem easy with the current wording of the precept, except in the cases of big corporations whose business is the transfer of wastes, therefore, here, the errors of prohibition and type of the article 14 CP are going to be important. We have to say the same regarding the eventual malice, the active subject should know that probably his behavior is illicit. However, the grave imprudence looks more feasible, being punished the behavior according to the article 331 CP, when the active subject has not taken any measure to fulfill the regulations which are applicable to his activity.
– Article 326 bis:
The article 326 bis is another version of the article 325, in its case specifically aimed at the exploitation of facilities in which are carried out dangerous activities or where are stored or used dangerous substances. The article 326 bis says:
“Article 326 bis.
Shall be punished with the punishments established in the article 325, in their respective cases, whoever, contravening the laws or other dispositions of general character, conducts the exploitation of facilities in which are carried out a dangerous activity or where are stored or used dangerous substances in a way which cause or may cause substantial damages to the quality of the air, the ground or the waters, to animals or plants, death or graves injuries to persons, or may gravelly damage the balance of the natural systems.”
Like we are able to observe, the first that the precept says is that, the behaviors described in the this art. 326 bis, will be punished according the punishments of the article 325. Moreover, it adds “in their respective cases”, it means that the article 326 bis has the same structure than the article 325, a basic type with its punishments, another basic (or aggravated subtype), and an aggravated subtype of the latter.
We continue reading, and we find the first objective element of the type, the typical behavior has to contravene the established in a law or another disposition of general character. Like we saw in the preceding articles 325 and 326, this structure corresponds with the denominated blanket penal law, which is the penal disposition which has to be completed with others. A structure which has been criticized, since it can infringe the principles of legality and reservation of organic law. However, like we already saw, the Constitutional Court has backed this kind of norms, and concretely the old article 347 bis, which preceded the current article 325, whenever, the regulatory referral is express and is justified for the legal good protected, and that the law, besides establishing the law, contains the essential nucleus of the prohibition and satisfies the requirement of certainty, in other words, of enough concretion for defining the behavior classified as a crime.
Afterwards, we find the typical behavior, it is punished whoever, “conducts the exploitation of facilities in which are carried out a dangerous activity or where are stored or used dangerous substances.”
Continuing with the structure of crime of hypothetical danger, for it is not only punished the causation of grave or substantial damages, but also the possibility of causing them. For the behavior, it is enough with being suitable to cause a damage, without, on the other hand, necessity of putting into risk a concrete legal good, like the crime of concrete danger of the article 316, which requires the effective putting into danger of the health, life or physical integrity of the worker.
Lastly, it ends with something which we have already seen, it is punished to cause or to be able to cause substantial damages to the quality of the air, of the ground or the waters, or to animals or plants, death or grave injuries to the persons, or to damage gravelly the balance of the natural systems. The same that happens with the article 326, hence we should repeat the said before, it is maintained the structure of the article 325 and with this, its punishments.
The malice of the type will consist in knowing that an administrative norm is being contravened, and with this causing, or generating the risk of causing, damages to the legal good protected by this norm. It is enough with the eventual malice, which will be the most usual. The same facts can also be punished when instead of malice there has been grave imprudence, although according to the article 331 CP.
– Article 327:
Before anything, let us read together the article 327. This article says:
“Article 327.
The facts to which are referred the three previous articles shall be punished with the punishment superior in degree, without prejudice to those which may correspond according to other precepts of this Code, when in the commission of any of the facts described in the previous article concurs any of the following circumstances:
a) That the industry or activity works clandestinely, without having obtained the preceptive authorization or administrative approbation of its installations.
b) That the administrative authority´s express orders of correction or suspension of the activities classified in the previous article have been disregarded
c) That information regarding the environmental aspects of it has been falsified or hidden.
d) That the Administration´s inspection activity has been hindered.
e) That a risk of catastrophic or irreversible deterioration has been produced.
f) That an illegal extraction of waters has been produced in a period of restrictions.”
Does not it sound strange to you? No? Then you have to read it again. Now? Yes, it is correct, the wording rather than dense, it is clearly contradictory. It begins saying, “The facts to which are referred the three previous articles…”, but later it adds, “…when in the commission of any of the facts described in the previous article…”. As you can imagine more than one defense attorney has used this deficient wording for alleging, for example, that the aggravating factors of the article 327 were not applicable to the article 325. But the courts have not fallen in the snare, or rather, they have run in help of the legislator, arguing that although it is true that the precept contradicts itself, it is easily understood thanks to its clarifying beginning. Then, these aggravating factors are applicable to the previous three articles and not only to the article 326 bis, like some have wanted to see. In this matter, it is important the Spanish Supreme Court´s sentence number 320/2022, of 30 March, which, for example, says: “8. Well, departing from the latter, we consider that it is impossible, through an interpretative method respecting the principle of specificity, to overcome the incongruency of the norm which sets the objective ambit of the aggravation contained in the article 327 CP.
Indeed, it does not seem doubtful that the connection between the behaviors of the article 325 CP and the aggravating factors of the article 327 is the product of an express criminal-political decision not only of the historic legislator but of the current legislator for the precept begins specifying its applicative ambit “to the facts to which are referred the previous three articles”, without existing any data which allows us to doubt about the validity of that strong connection.”
Beyond this, we have no much more to add, the article 327 is an aggravated subtype of the previous three articles, imposing the punishment superior in degree when any of the circumstances mentioned in it concur.
– Article 328:
Through the article 328, the legal persons are made liable of the crimes gathered in this Chapter. Besides, the punishments which should be imposed to them are also established. The article 328 says:
“Article 328.
When according to the established in the article 31 bis a legal person is liable of the crimes gathered in this Chapter, the following punishments shall be imposed to it:
a) Fine from one to three years, or from the doble to the quadruple of the damages caused when the ensuing amount is greater, if the crime committed by the physical person has a punishment of imprisonment of more than two years.
b) Fine from six months to two years, or from the doble to the triple of the damages caused if the ensuing amount is greater, in the rest of the cases.
Attending to the rules established in the article 66 bis, the judges and courts may also impose the punishments from the letter b) to g) of the point 7 of the article 33”.
– Article 329:
In the article 329 we find what can be denominated a crime of environmental prevarication. It is formed by two points, punishing different behaviors, although they are very similar too. The article 329 states:
“Article 329.
1. The authority or public servant that, knowingly, has informed favorably the granting of licenses, manifestly illegal which authorize the working of industries or polluting activities to which are referred the previous articles, or that with motive of their inspection has silenced the infringement of laws and normative dispositions of general character which regulate, or which has omitted the realization of inspections of obligatory character, shall be punished with the punishment established in the article 404 of this Code and, besides, with imprisonment from six months to three years and fine from eight to twenty-four months.
2. With the same punishments shall be punished the authority or public servant whoever by himself or as a member of a collegial body has ordered or voted in favor of their granting knowing their injustice.”
Art. 329.1:
The first that we observe reading the precept is that, we are before a special own crime, since it can only be committed by authority or public servant. However, we should not dismiss other ways of participation, which will not be limited like the direct authorship, we are referring to the accomplices and necessary cooperators.
We continue reading, and the next thing that we find is a subjective element of the type, the active subject has to act “knowingly”, knowing the injustice and arbitrariness of his decision, to put it differently, he has to be conscious of the fact that with his acts he is contravening the established into a law. This “knowingly”, stresses the malicious character of the crime, for the malice is always based in the knowledge by the active subject of the unlawfulness of his action, he knows the objective elements of the type, and in spite of this, he decides to execute them. Here, the doubt may arise of whether it is enough with the eventual malice, this is, when the active subject knows that it is probable to fulfill the objective elements of the type with his behavior. In my opinion, yes, and more if we take into account that it is not required that the active subject knows perfectly those objective elements, being enough with knowing that what he wants to do or omit to do is forbidden. A different question altogether, is the commission of this crime by imprudence, which does has to be dismissed, “knowingly” and “imprudent” are two antonyms, when a crime is committed by imprudence, is because the active subject did not think that his actions would give rise to the damaging result, therefore, in this concrete case, it is not of application the article 311 CP.
Afterwards, the type describes the typical actions, which can be three: 1) To have favorably informed of the granting of licenses manifestly illegal which authorizes the working of the industries or polluting activities to which are referred the previous articles; 2) With motive of the inspections, to have silenced the infringement of laws or normative dispositions of general character which regulate them, and; 3) To have omitted the realization of inspections of obligatory character.
Since the type does not require any result, it is a crime of mere activity, which is consummated as soon as the active subject carries out the typical action.
What has generated more problems, is to distinguish those cases which should be considered a mere administrative infringement, from those which should be considered a penal illicit. According to the doctrine of the Spanish Courts, the penal order should be utilized to punish the gravest cases, those in which not only has been contravened the established in a norm, but also an arbitrary and unjust decision has been taken, in other words, which is impossible support with any admissible legal argument. The Spanish Supreme Court ́s sentence number 752/2016, of 11 October 2016, Rec. 343/2016, says: “As we have already said in other occasions, the aim is not to replace the Administrative Jurisdiction, in its labor of controlling the legality of the acts coming from the Public Administration, with the Penal Jurisdiction through the crime of prevarication, but rather of punishing limit cases, where an administrative act is not only illegal, but also unjust and arbitrary.”
We should not confound a crime of prevarication, with a null and void act of full right. The article 47 of the Law 39/2015, of 1 October, on the Legal Regime for Public Administrations and Common Administrative Procedure:
“Article 47. Nullity of full right.
1. The acts from the public Administrations are null and void of full right in the following cases: a) Those which damage right and freedoms susceptible of constitutional protection.
b) Those dictated by a manifestly incompetent organ by reason of matter and territory.
c) Those which have an impossible content.
d) Those which are constitutive of a penal infringement or are dictated as consequence of this. e) Those dictated ignoring altogether the procedure legally established or of the norms which contain the essential rules for forming the will of the collegiate bodies.
f) The express or alleged acts contrary to the legal order through which are acquired faculties or rights when are lacked the essential rights for their acquisition.
g) Any other which may be expressly established in a disposition of legal rank.
2. The following are also null and void of full right: the administrative dispositions which infringe the Constitution, the laws or other administrative dispositions of superior rank; those which regulate matters reserved to the Law; and, those which establish the retroactivity of punishing dispositions non-favorable or restrictive of fundamental rights.”
Therefore, it is possible to conceive an act null and void of full right, which is not a penal illicit. On the other hand, according to the doctrine, to the crime of environmental prevarication are also applicable the requisites of the crime of “general” prevarication of the article 404, which the Spanish Supreme Court ́s sentence number 497/2012 of 4 June 2012, Rec. 732/2011 sums up in the following: “The requisites of this crime are: 1) a resolution dictated by authority or public servant in an administrative matter; 2) it has to be contrary to the Law, in other words, illegal; 3) this contradiction with the law or illegality, which can be manifested in the absolute lack of competence, in the omission of essential proceedings of the procedure or in the own substantial content of the resolution, has to be of such entity which could not be explained with a minimum reasonable technical-legal argumentation; 4) it has to provoke a materially unjust result; and 5) the resolution has to be dictated with the aim of making effective the particular will of the authority or public servant, and with the knowledge of acting against the right.”
Lastly, in relation with this crime, the legal good protected by the norm is “the correct working of the public Administration, since it has to be aimed to the satisfaction of the general interests of the citizens, with wholly subjection of the legal dispositions to the law (art. 9.1 and art. 103 CE), in this way respecting the constitutional requirement of guarantee of the principles of legality, of legal security and of prohibition of the arbitrariness of the public powers (art. 9.3 CE).” (Spanish Provincial Court of Madrid ́s sentence number 17216/2023).
Art. 322.2:
As we already said the crimes described in the first and second point of the article 329 are different, but at the same time they are similar.
In this case, it is also a special own crime which can be only committed by an authority or public servant. Again, it is required by the type, that the authority or public servant must carry out the behavior described by the precept “knowingly”.
However, the typical behavior changes. The punished is, by yourself or as a member of a collegiate body, to have “ordered or voted in favor of its granting knowing its injustice.” When it says “its granting”, it is evident that it is referring to the granting of licenses manifestly illegalwhich authorize the working of industries or polluting activities.
Beyond that, there is little to add to the said in the previous point, although we are going to repeat the most important:
1. It is a special own crime.
2. It is a malicious crime.
3. It is a crime of mere activity.
4. It is not the same an act null and void of full right, than an act which constitutes a crime of prevarication.
5. The frontier between the administrative and penal jurisdiction, is marked by the injustice and arbitrariness of the act.
6. The legal good protected by the norm, is the correct working of the public administration, with wholly subjection of the legal dispositions to the law.
– Article 330:
The article 330 is aimed at protecting the protected natural spaces. The article 330 says:
“Article 330.
Whoever, in a protected natural space, gravelly damages some of the elements which have served to classify it, shall incur in the punishment of imprisonment from one to four years and fine from twelve to twenty-four months.”
The art. 28 of the Law 42/2007, of 13 December, on Natural Heritage and Biodiversity, defines what is a protected natural space:
“Article 28. Definition of protected natural spaces.
1. Shall be considered protected natural spaces the spaces of the national territory, included the continental waters, and the marine environment, along the exclusive economic zone and the continental platform, which fulfil at least one of the following requisites and are declared as such:
a) To contain representative systems or natural elements, singular, fragile, threatened or of special ecological, scientific, landscape, geological or educative interest.
b) To be specially dedicated to the protection and maintenance of the biological diversity, of the geodiversity and the natural and cultural resources associated.”
Then, the first thing that we have to take into account, is that, for being a protected natural space, first it has to be declared as such, either by the Law or Royal Decree.
The second, is that, the behavior consists in gravelly damaging some of the elements which has served to classify it. If we attend to the article 28 of the Law 42/2007, one of the requisites to be classified as such is to have systems or natural elements, singular, fragile, threatened or of special ecological, scientific, landscape, geological or educative interest. Consequently, it has to be one of those elements, the gravelly damaged by the active subject.
We see how the nature of the type has changed with regard to the preceding articles, it is not a crime of hypothetical danger, nor a crime of concrete danger, it is clearly a crime of result, for the type requires to damage gravelly some of the elements which have served to declare the natural space as protected. It is also important that, the damage has to be grave, it is not valid a damage which does not reach such classification.
According to the wording of the precept, there is no doubt that it is a malicious crime, where its eventual modality will continue being the most usual, since the active subject may not know that the harmful result is going to be produced, but probably he knows that there exists a great probability that this happens. Notwithstanding, thanks to the established in the article 331, this behavior can also be punished when the harmful result has been the product of an imprudence.
– Article 331:
We have already talked about it various time, it is the one which makes possible to punish the crimes contemplated in this chapter, when the damages caused have been the consequence of a grave imprudence. Though, remember, that we excluded from the scope of this article, the crime of environmental imprudence, for one of its subjective elements. The article 331 says:
“Article 331.
The facts established in this chapter shall be punished, in their case, with the punishment inferior in degree, in their respective cases, when they have been committed by grave imprudence.”
With this precept the established in the article 12 CP is fulfilled, it is only possible to punish the imprudence, when it is expressly stated by the CP.
Remember that, there is only going to be grave imprudence, when the active subject omits the more essential norms of care, either imposed by a norm or socially.
Common dispositions:
– Article 338:
Let us start with the article 338. This article states:
“Article 338.
When the behaviors defined in this Title affect to some protected natural space, shall be imposed the punishments superior in degree to those respectively established.”
It is an aggravated subtype of the preceding articles, if any of the behaviors affect a protected natural space, the punishment superior in degree shall be the imposed. Remember that, protected natural space is the defined in the art. 28 of the Law 42/2007, of 13 December, on Natural Heritage and Biodiversity.
In general terms, it does not seem a precept which is going to give much problems in its application. However, it is not the case when it is applied along the article 330. Let me explain myself. In the article 330 it is punished to damage gravelly some of the elements which have served to classify a natural space as protected, and the article 338 imposes the punishment superior in degree, of the one established by the law, when the illicit behavior affects a protected natural space. If we thing this twice, this means that, all behavior punished by the article 330 has to be punished with the punishment superior in degree. Something which would suppose a flagrant infringement of the principle non bis in idem, since the same subject is punished two times for the same facts, one according to the article 330, and another to the art. 338. Lacking a rule to solve the problem, like in the cases of membership to a group or criminal organization (art. 570.2 quarter CP), the more logical would be to exclude the application of the article 338 in these cases.
– Article 339:
The article 339 says:
“Article 339.
The judges and courts shall order the adoption, at the expense of the author of the facts, of the necessary measures aimed to restore the ecological equilibrium perturbed, as well as any other necessary preventive measure to the protection of the goods protected by this Title.”
With the article 339 does not happen the same that happened with the article 338, it perfectly fits with all the crimes described in this Chapter III. Moreover, the article 339 seems to be thought for this Chapter III, for the legal goods protected are the same, something does not happen with the preceding chapter, which contain articles that in certain occasions may contradict the said by the article 339. For example, the article 319.3 shapes the demolition of a building work as a faculty of the judges and courts, while the article 339 does not leave any room to them, the judges and courts always have to order at the expense of the author of the facts the adoption of the measures, adequate to restore the ecological balance.
If before we said, that the measures established in the article 321 and 323.3 CP cannot be considered part of the civil liability derived from the crime for being facultative, something which contradicts how is shaped the civil liability by the article 109.1, where is established the obligation of repairing the damages derived from a crime in any case. It does not seem, that now there are obstacles for understanding the opposite, therefore, the obligation of the article 339 of restoring the ecological equilibrium perturbed has to be considered another element of the civil liability derived from the crime, being the articles 109 and 339 not only related, but intimately connected, being the latter a practical application of the former.
With regard to the preventive measures of the same precept, they have to be adopted as soon as there are evidences of the commission of the crime (fumus boni iuris) and risks to the restitution of the object of the crime to its original state if it is waited for firm sentence (periculum in mora). These preventive measures can be ordered in any part of the procedure.
– Article 340:
The article 340 says:
“Article 340.
If the culprit of any of the facts punished in this Title willingly repair the damage caused, the Judges and Courts shall impose him the punishment inferior in degree of the respectively established.”
The CP rewards those who before the sentence ending the penal procedure, have repaired the damage caused.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com