“Of the crimes of catastrophic risk”, is entitled the Chapter I, of the Title XVII, of the Book II, of the Spanish Penal Code (CP). It is the first chapter of a title dedicated to the crimes against the collective security, a legal good recognized as a fundamental right by the article 17.1 of the Spanish Constitution (CE).
This Chapter I is formed by three sections, which are also divided by ten articles. Let us now study in detail each of them.
Section 1ª Of the crimes relative to the nuclear energy and the ionizing radiations:
– Article 341 CP:
The article 341 is the first article of the Chapter dedicated to the catastrophic risks, and the first, of its Section 1ª relative to the crimes against the nuclear energy and the ionizing radiations. The article 341 says:
“Article 341.
Whoever releases nuclear energy or radioactive elements which put in danger the life or the health of the persons or their goods, although no explosion is produced, shall be punished with the punishment of imprisonment from fifteen to twenty years, and special disqualification for public employment or charge, profession or trade from ten to twenty years.”
Let us now study it. The first we realize reading the precept is that, it is a common crime, at least regarding it active subject, this means that it can be anyone, regardless, for example, his profession.
We continue reading, and we find the forbidden behavior and the object on which the crimes is committed, the precept punishes whoever “releases nuclear energy or radioactive elements which put in danger the life or the health of the persons or their goods, although no explosion is produced.”
The action is described by the verb “to release”, which according to the Dictionary of the Spanish Royal Academy of Language (DRAE) means: “To emit, produce or secrete something.”
And the dangerous element, the reason to punish this behavior, which is emitted, produced or secreted must be nuclear energy or radioactive elements. According to the Spanish Council of Nuclear Security: “The nuclear energy is the energy contained in the nucleus of an atom. The atoms are the smallest particles in which can be divided a chemical element maintaining its properties. In the nucleus of each atom there are two type of particles (neutrons and protons) which are united. The nuclear energy is the energy which maintains united neutrons and protons.
The nuclear energy can be utilized to produce electricity. But first the energy must be released. This energy can be obtained in two ways: nuclear fusion and nuclear fission. In the nuclear fusion, the energy is released when the nucleus of the atoms are combined or fused between them for forming a bigger nucleus. This is the way that the sun has to produce energy. In the nuclear fission, the nucleus are separated to form smaller nucleus, releasing energy. The nuclear plants use the nuclear fission to produce electricity.
When is produced one of these two nuclear reactions (the nuclear fission or fusion) the atoms have a slight loss of mass. The mass which is lost is transformed in a great amount of calorific energy and radiation, like Albert Einstein discovered with his famous equation E=mc2. The calorific energy produced is utilized for producing vapor and generating electricity. Although the production of electric energy is the utility more usual given to the nuclear energy, it can be applied in many more sectors too, like the medical environmental applications.”
Regarding the ionizing radiations, the Council of Nuclear Security says: “At normal conditions of equilibrium, the particles of the atom remain strongly united, like if they were tied. But an excess or lack of neutrons may break this equilibrium. Then they are transformed in unstable elements, with a tendency of transforming themselves in other elements. For this to happen, the ties have to be broken and form other new. This change which is called radioactive disintegration, is produced releasing a great amount of energy in the form of electromagnetic waves or invisible and quiet particles which we call radiations. Part of the mass of the body is transformed in energy, according to the Einstein´s equation. This process is called nuclear fission, in other words, the split of the nucleus of the atom.
Some elements are more adequate than others to produce this kind of reactions. This is the case of the uranium-235, with a tendency to absorb any neutron which clashes with it. When this happens, the uranim-235 increases its weight, becomes more unstable and breaks in various fragments, releasing other neutrons. If these neutrons are absorbed, in turn, by other atoms of uranium-235 is produced a sequence of chain reactions, which generates important amounts of radioactivity and of energy.”
Then, the nuclear energy is only calorific energy and radiation produced by an atom when it is fused or split. A good example is the uranium-235, which being bombarded by neutrons, it absorbs them and splits up, generating a great amount of energy and radioactivity.
This is the behavior punished by the precept. Nonetheless, like some of you may be thinking now, not all release of nuclear energy or radioactive elements is punished according to the article 341, otherwise, we would have neither X-ray machines or nuclear plants. The behavior in order to be punishable has to have put into danger the life or health of the persons or their goods, although no explosion had been produced. This means that, this is a crime of concrete danger, to put it differently, the life or health of persons or their goods have to have suffer a real and concrete danger, not hypothetical, although it is not necessary to identify the persons or goods which have been endangered, because the legal good protected by the Title XVII is the collective security. Pay attention to this excerpt from the Spanish High National Court´s sentence number 2478/2024: “interpreting this as of concrete danger, thereby not being necessary that the danger threatened concrete persons but being enough with affecting indetermined persons, due to the inclusion of this penal precept in a title which is referred to crimes against the collective security (Spanish Supreme Court´s sentence of 25 April 2000; 19 May 2003; 30 December 2004).” This last characteristic, the necessity of identifying the persons or goods which has been endangered, distinguishes this crime of concrete danger from other crimes of concrete danger which do require this identification, like the established in the article 316 CP, which requires the identification of the workers whose life, health or physical integrity have been endangered. These crimes of concrete danger can be classified also, as crime of result, for the result is the concrete danger created without which the crime would not be consummated.
Besides, the own precept adds that, it is not necessary the explosion for understanding consummated the crime. But, what would happen if the explosion takes place? In my opinion, there would be an ideal concurrence of crimes (art. 77 CP), the same fact constitutes two or more crimes, between the crime of releasing nuclear energy or radioactive elements, and crime according to which was classified the explosion. If the explosion was of enough importance, it should be classified as a crime of causing havoc of the article 346, a classification which would be applicable when there is either malice or grave imprudence (art. 347 CP). Although, if the explosion was not grave enough, the facts would be classified as a crime of damages of the article 266 CP, in this case, the imprudence would be punishable if the damages exceeded the 80.000 euros.
A different question are injuries or deaths of persons which may cause the explosion, or even the release of nuclear energy or radioactive elements. In my opinion again, the injuries and deaths should be punished separately, due to the importance of the legal good affected in both cases, existing a real concurrence a crimes (art. 73 CP) between the crime of injuries (art. 147 and following CP) or homicide (art. 138 and following CP) and the ideal concurrence of crime between the crime of releasing nuclear energy or radioactive elements (art. 341 CP), and the crime of causing havoc (art. 346 CP) or the crime of damages (art. 266 CP). Although, if there was no explosion, there would be only a real concurrence of crimes, between the crimes of injuries or homicide and the crime of releasing nuclear energy or radioactive elements.
With regard to the subjective elements of the type, the described in the article 341 is a malicious crime, what implies that the active subject knows the objective elements of the type and in spite of this, he executes them. This applied to this concrete crime is translated in that, the active subject knows that with his acts he is going to release nuclear energy or radioactive elements, endangering the life of persons or their goods, and that this is a crime, but despite all of this, he acts. We should not discard the possibility of its commission by eventual malice, which takes place when the active subject knows that there are possibilities of fulfilling the objective elements of the type with his acts, but he acts anyway. On the other hand, its commission by grave imprudence is expressly established by the CP in its article 344. Remember that the imprudence has been understood by the doctrine as the omission of a duty of care imposed socially or by a norm. The imprudence is going to be grave when, the omission affects to an important duty of care.
– Article 342 CP:
The article 342 advances the barrier of penal protection to those cases in which there has been no release of nuclear energy or radioactive elements, but the occasion has been created for provoking this release, through the “sabotage” of a nuclear or radioactive facility or alteration of activities in which intervene materials or equipment producing ionizing radiations. The article 342 CP says:
“Article 342.
Whoever, without being comprehended in the previous article, disrupts the working of a nuclear or radioactive facility, or alters the development of activities in which intervene materials or equipment producing ionizing radiations, creating a situation of grave risk for the life or health of the persons, shall be punished with the punishment of imprisonment from four to ten years, and special disqualification for public employment or charge, profession or trade from six to ten years.”
Let us now analyze it. The first that we see is that, it is a common crime, in the sense that it can be committed by anyone, regardless, for example, his profession.
The next thing that the precepts says is that, the active subject cannot be the same than the one punished in the previous article. This means that, the cases of releasing nuclear energy or radioactive elements which have endangered the life or physical integrity of the persons or their goods, cannot be punished according to the article 342, because they fit in the article 341.
The forbidden behavior consists in disrupting the working of a nuclear or radioactive facility, or altering the development of activities in which intervene materials or equipment producing ionizing radiations. I said at the beginning of this article 342, that the legislator has advanced the penal protection to cases of “sabotage”, because I understand that this “sabotage” is the previous step of the releasing of nuclear energy or radioactive elements punished by the article 341. This gives rise to another question, does it mean that cannot be punished the attempted crime in the cases comprehended in the article 341? Yes and no. Yes, because when the facts fit in the article 342, the should be punished according to this article and not as an attempted crime of the article 341. And no, because when the facts does not fit in the article 342, but fulfil the established in the article 16.1 CP, where is defined the attempted crime in the CP, in relation with the article 341, the facts should be classified as a crime of the article 341 in degree of attempted crime.
Besides, this “sabotage” must create a situation of grave danger for the life or health of the persons. A requisite which transforms the crime into a crime of concrete danger, hence, requiring the endangering of the life or health of the persons. Without being necessary to specify the persons whose life or health have been endangered, since it is a crime which protects the legal good collective security.
As you have been able to observe, it is a malicious crime, in which its commission by eventual malice should not be discarded, and less for grave imprudence, for this last scenario is expressly punished by the article 344 CP.
– Article 343:
Let us first see the content of the article 343:
“Article 343:
1. Whoever through the spill, emission or introduction in the air, the ground or the waters of an amount of materials or ionizing radiations, or the exposition by any other means to such radiations endangers the life, integrity, health or goods of one or various persons, shall be punished with the punishment of imprisonment from six to twelve years and special disqualification for public employment or charge, profession or trade from six to ten years. The same punishment shall be imposed when through this behavior is endangered the quality of the air, the ground or the waters or animals or plants.
2. When as consequence of the behavior described in the previous point is produced, besides the risk prevented, a harmful result constituting a crime, whatever its gravity, the judges or courts shall appreciate only the infringement more gravely punished, applying the punishment in its superior half.
3. When according to the established in the article 31 bis a legal person is liable of the crimes established in this article, shall be punished with the punishment of fine from two to five years.
Attending to the rules established in the article 66 bis, the judges and courts may impose the punishments established in the letters b) to g) of the point 7 of the article 33.”
Art. 343.1:
Let us now try to comment it. The first is the first, and although it seems obvious, we must say it. The precept starts with a simple “Whoever…”, indicating that this a common crime which can be committed by anyone, without being relevant any other characteristic in the active subject, beyond being the person who carries out the forbidden action.
We continue, and we find the forbidden behavior, it is punished “the spill, emission or introduction in the air, the ground or the waters of an amount of materials or ionizing radiations, or the exposition by any other means to such radiations endangers the life, integrity, health or goods of one or various persons.” Sincerely, I have problems, many problems, distinguishing the behavior punished by the article 343 from the behavior punished in the article 341. My motives:
1) On the one hand, we said that “to release” according to the DRAE is: “To emit, produce or secrete something.” On the other hand, according to the same dictionary, to spill is: “To pour or empty liquids, and also small things, like salt, flour”. And “to emit” is: “To toss, exhale or throw outside something”. And to introduce is: “To put inside or make something enter into another thing”. The three verbs used by the article 343.1 (to spill, emit or introduce) can be synonyms of the verd used by the article 341 (to release).
2) The spilled, emitted or introduced, has to be materials or ionizing radiations, which are the same than the radioactive elements or nuclear energy of the article 341.
3) These materials or ionizing radiations must be spilled, emitted or introduced in the ground, air or water. Indeed, the release of the materials mentioned in the article 341 should be done in the same places, there are no others.
4) The article 343 adds, “or the exposition by any other means to such radiations”. This comprehends any other behavior with these materials which produces the result punished by the precept, including the release of the article 341.
The only hints which we have for distinguishing the established by the article 341 from the article 343 are:
1) In the article 341, the release of nuclear energy or radioactive elements has to endanger “the life or health of the persons or their goods”, and in the article 343, the release of the same elements must endanger “the life, integrity, health or goods of one or various persons.”
2) The article 343 talks about “an amount of materials”. It seems to indicate that, the amount released has to be of enough importance to produce the result forbidden by the type, less of this amount will make licit the release of the toxic substances.
3) The punishments of the article 341 are much more severe.
4) The article 343 does not mention any type of explosions.
From these three hints we draw that, although the behavior punished by both precepts is essentially the same, the article 343 if for releasing of nuclear energy or radioactive elements of less intensity, less grave, than those which could be punished according the article 341.
Like we are able to observe, in the article 343, like in the article 341, is described a crime of concrete danger, therefore, a crime in which is going to be necessary to endanger the life of one or various persons in order to be consummated, it is not enough with a hypothetical danger. Nevertheless, due to the localization of the precept within a title dedicated to the crimes against the collective security, we can proceed without identifying during the penal procedure the persons or goods that have been endangered.
Beyond that, this is a malicious crime, which, therefore, requires that the active subject should be conscious of the risks he is generating with his behavior, in both cases, direct malice and eventual malice, depending on his certainty regarding the result punished. However, we cannot discard its commission by grave imprudence, although in these cases, we should apply the article 344 CP.
Art. 343.2:
The article 343 tells us what to do when the harmful result forbidden by the precept is materialized, a thing regarding which the article 341 remains silent. It says that, when this result is materialized in in harmful result which is a crime by itself, the judges and courts can only appreciate the infringement more gravely punished. Let us see this with some examples:
1) The ionizing radiations kills the same person whose life was endangered. A crime of homicide which is punished with the punishment of imprisonment from 10 to 15 years, being, therefore, more severely punished than the crime of the article 343. In this case, the judges and courts can only punish the crime of homicide, but imposing the punishment in its superior half.
2) The person whose life was endangered did not die, but suffered injuries. The basic crime of injuries of the article 147 is punished with the punishment of imprisonment from three months to three years, although it can be argued that it has to be applied the aggravated subtype of the article 148, because of the means used, being possible to reach a punishment of imprisonment from two to five years. In these cases, the facts should be punished according to the article 343, because of the graver punishments assigned to them than in the article 147 or 148, although the punishment of the article 343 should be imposed in its superior half.
3) There are various persons affected, one or more of them die, but the rest do not suffer any injury. In these cases, the deaths caused by the ionizing radiations have to be punished as homicides, but the rest of the cases as crimes of the article 343. Moreover, each death has to be punished as a different crime of homicide, but all persons who do not suffer any injury have to be part of the same crime of the article 343. There is going to be a real concurrence of crimes (art. 73), between each crime of homicide, and between them and the crime of the article 343, this means that they have to be punished separately.
4) The ionizing radiations affect various persons, causing injuries in some of them, but leaving others unharmed. These cases should be punished according to the article 343, although applying its punishment in its superior half.
Art. 343.3:
Lastly, in relation with this article 343, its third point makes liable the legal persons of the facts punished. This is not a surprise, the surprise is that the legislator has not done the same in the article 341. What was his criterion for establishing the liability in one case and not in the other? I do not know, but it seems that the article 343 is more conceived for cases in which the danger or even damages have been occasioned by the grave imprudence of a company.
– Article 344:
Like we said before in the articles 341, 342 and 343, when we analyzed the subjective elements of the type, the facts described in them can also be punished when instead of malice there has been grave imprudence, although under the article 344, which says:
“Article 344.
The facts described in the previous articles shall be punished with the punishment inferior in degree, in their respective cases, when they have been committed by grave imprudence.”
Remember that the doctrine has described the imprudence as the infringement of a duty of care imposed socially or by a norm. In order to consider an imprudence as grave, this infringement has to be also grave, in the sense that the omission of this duty of care has to be relevant, due to the importance that is given to it. A good example would be, the employee of a nuclear plant who does not carry out his work with the due diligence, provoking some of the crimes established by the previous articles.
– Article 345:
When you read the article 345 for the first time, you feel that you have read something very similar before. This is because of its similarity with the article 325, both have the same structure. The article 345 says:
“Article 345.
1. Whoever, contravening the laws or other dispositions of general character, acquires, possesses, traffics, facilitates, deals, transforms, utilizes, stores, transports or eliminates nuclear materials or other dangerous radioactive substances which cause or may cause the death or grave injuries to persons, or substantial damages to the quality of the air, the qualifity of the ground or the quality of the waters or to animals or plants, shall be punished with the punishment of imprisonment from one to five years, fine from six to eighteen months, and special disqualification for profession or trade from one to three years.
2. Whoever without due authorization produces such materials or substances shall be punished with the punishment superior in degree.
3. If the facts to which are referred the previous points are committed by grave imprudence, shall be imposed the punishment inferior in degree to the established in them.”
Art. 345.1:
Let us now comment it. Like in the previous articles of this Chapter I, the first we realize it that, it is a common crime, it starts with “Whoever…”, implying that this crime can be committed by anyone.
We continue and we read something that indicates that this is blank penal norm, this is what we draw from the phrase “…contravening the laws and other dispositions of general character…”. Blank penal norm which, therefore, has to be completed with others for unveiling its meaning altogether. This lack of concreteness of the penal norm has been criticized for two motives, for infringing the principle of legality, according to which, the norm has to be enough precise to make understandable the behavior punished to anyone, and also, for not respecting the reserve of organic law for the penal norms (article 81.1 of the Spanish Constitution), since it affects to fundamental rights. However, the Spanish Constitutional Court has backed this legislative technique, but with conditions, it has to fulfill always three requisites (STC 122/1987): a) the regulatory referral has to be express and justified by the legal good protected by the penal norm; b) the law, besides establishing the punishment, has to contain the essential nucleus of the prohibition; and c) the requirement of certainness has to be satisfied or, or what is the same: “the behavior classified as criminal has to be enough defined with the help of the norm to which the penal norm refers, and it is in this way guaranteed the function of guarantee of the precept with the possibility of knowing the actuation penally ordered.”
The precept also says that, in order to consider the behavior as a penal illicit, it has to be also considered as an administrative infringement. Here the principle of minimal intervention of the penal order may be relevant, although it is mostly aimed at the legislator, if the behavior fulfill the objective and subjective elements of the type, it has to be punished as a penal illicit. Does it mean that a behavior may be penal and administratively punished? No, this would infringe the principle non bis in idem. This excerpt from the Spanish Constitutional Court´s sentence of 30 January 1981 is clear: “4. The general principle of law known by “non bis in idem” supposes, in one of its more known manifestations the non-duplication of sanctions -administrative and penal- in the cases in which is appreciated the identity of subject, fact and basis without the existence of a relation of special supremacy of the Administration -relation of public servant, public service, licensee, etc.- which justifies the exercise of the “ius puniendi” by the Courts and at the same time the sanctioning power of the Administration.”
We continue reading and we find the behavior forbidden. It is punished whoever, “…acquires, possesses, traffics, facilitates, deals, transforms, utilizes, stores, transports or eliminates nuclear materials or other dangerous radioactive substances which cause or may cause the death or grave injuries to persons, or substantial damages to the quality of the air, the qualifity of the ground or the quality of the waters or to animals or plants…”. It is plain that the legislator has tried to make a broad enumeration of behaviors which may damage the legal good, maybe too much broad, because it loses certainty.
Here we have to stress that this time the crime is a crime of hypothetical danger, and not of concrete danger like before. This means that, it is not necessary that the legal good has been endangered, being enough with having existed the possibility of being endangered.
We said at the beginning that, there exists a great resemblance between the structure of the article 325 and the structure of the article 345, but the similarities between both precepts do not end here, for the article 325 punishes whoever provokes or direct or indirectly carries out radiations. It is going to be difficult to distinguish between both precepts, the motive, the legislative technique which consists in enumerating many forbidden behaviors, making almost impossible to establish the boundaries between them.
With regard to the subjective elements of the type, it is a malicious crime, which should be possible to commit by eventual malice. The cases of grave imprudence are also comprehended thanks to the third point of this article 345.
Art. 345.2:
On the other hand, the second point of the article 345 punishes another behavior, which seems more a new and independent crime than an aggravated subtype of the established in the first point, even, when this is punished with the punishment superior in degree.
It is a common crime, since it can be committed by anyone, and it can be also considered a blank penal norm, for the facts are not illicit when the active subject acts with the due authorization.
The illicit behavior consists in producing nuclear materials or other radioactive substances, without the due authorization. This is neither a crime of concrete danger, nor a crime of hypothetical danger, but a crime of mere activity. With carrying out the behavior described in the precept without the due authorization, the crime is going to be consummated.
It is a malicious crime, which should be possible to commit by eventual malice, including also the grave imprudence thanks to the third point of the article 345.
Art. 345.3:
Like we said before, when the behaviors described in the first and second point of this article, are carried out by grave imprudence, the facts will be punished, but with the punishment inferior in degree.
There is going to be grave imprudence, when the active subject has omitted a duty of care imposed by a norm or socially, of such relevance, that only the clumsiest lack of care has made possible to fulfill the objective elements of the type.
Section 2ª of the havoc.
– Article 346:
In the article 346 is classified the known as the crime of causing havoc. Let us first read this article:
“Article 346.
1. Whoever provoking explosions or using any other means of similar destructive power, causes the destruction of airports, harbors, train stations, buildings, public facilities, warehouses containing inflammable substances or explosives, communication routes, collective means of transport, or the sinking or stranding of a ship, flooding, explosion of a mine or industrial facility, the removal of the rails from a railway track, malicious alteration of signals used in its service for the safety of transportation, blowing up of a bridge, destruction of a public road, damage to pipelines, severe disruption of any kind or means of communication, disruption or interruption of the supply of water, electricity, hydrocarbons, or other essential natural resources, shall incur in the punishment of imprisonment from ten to twenty years, when the havoc necessarily entails a danger for the life or integrity of the persons.
2. When this danger does not concur, shall be punished with the punishment of imprisonment from four to eight years.
3. If, besides the danger, has be produced injury for the life, physical integrity or health of the persons, the facts shall be punished separately with the punishment corresponding to the crime committed.”
Art. 346.1:
The first thing we observe is that, it is a common crime, this is what we draw from the expression “Whoever…”. This means that anyone may be the active subject of the crime.
We continue, and we find the forbidden behavior. It is punished, whoever “provoking explosions or using any other means of similar destructive power, causes the destruction of airports, harbors, train stations, buildings, public facilities, warehouses containing inflammable substances or explosives, communication routes, collective means of transport, or the sinking or stranding of a ship, flooding, explosion of a mine or industrial facility, the removal of the rails from a railway track, malicious alteration of signals used in its service for the safety of transportation, blowing up of a bridge, destruction of a public road, damage to pipelines, severe disruption of any kind or means of communication, disruption or interruption of the supply of water, electricity, hydrocarbons, or other essential natural resources”.
It is clearly discernible, the effort of the legislator mentioning all the protected infrastructures, fulfilling in this way, the principle legality.
But, besides, the forbidden behavior, the precept requires another objective element for understanding consummated the crime, the destruction of the mentioned infrastructures has to entail a danger for the life or integrity of the persons. This requisite transforms this crime into a crime of concrete danger. Pay attention to the fact that, this requirement of a concrete danger makes this crime look like a crime of result, being this result the causation of the concrete danger.
Nonetheless, even after classifying this crime as a crime of result, we have to be careful, because the jurisprudence from the Spanish courts has admitted the possibility of punishing the cases of attempted crime of havoc. This is a good example, Spanish National High Court´s sentence 3700/2022: “423. The classification of the havoc in the degree of attempted crime is correct according reiterated jurisprudence, boing possible to cite the sentence of 4 November 2015 in which is quoted the Spanish Supreme Court´s sentence number 1791/1999, of 20 December…
425. It concludes: “Executing acts have to considered according to this doctrine, those which suppose at least a remote put in danger of the legal good, even when they do not constitute strictly speaking the realization of the typical action, whenever in such case they are in an immediate space-temporary connection. Conception which today is accommodated also to the current concept of attempt of the article 16.1º of the Penal Code.”
Though some subsequent sentences, the Spanish Supreme Court´s sentence number 120/2009, of 9 February, specified that in our penal system “No one questions that the penal order cannot punish all danger of affectation of a legal good when this is still far away or of little intensity.” Returning to the doctrinal requirement of an immediate danger for the legal good protected.
426. This doctrine have been followed, in essence, by the Spanish Supreme Court´s sentences numbers 1479/2002, of 16 September, 357/2004, of 19 March, 77/2007, of 17 February, 214/2014, of 3 March, and 234/2012, 16 March. The latter ends affirming that the jurisprudence has required as “requisites for affirming that the execution of the crime has been initiated the following: a) there has to be uniqueness, in other words, such exterior acts have to clearly reveal the will of committing a crime; b) there has to be a temporary space proximity with regard to the consummation of the crime according to the plan of the author; c) and this is the last criterion which has to mark the difference between the preparatory acts and those of execution: that that univocal and close in the time and in the space actuation has to be such that its natural progression drives to the consummation, in other words, if this action continues (it is not interrupted) the crime is going to be consummated. It is then, when it is possible to say that there is a danger to the legal good protected by the penal norm…” (Spanish Supreme Court´s sentences 1479/2002, of 16 September and 227/2001, of 19 November)”.
It is also relevant, the element required by the precept for causing the havoc, it has to be the consequence of the use of explosives or any other means of similar destructive power. The main means employed are going to be always the explosives, although the legislator has not discarded other possibilities with the expression “using any other means of similar destructive power”. In order to explode something with explosives, first you have to store these explosives until the moment of committing the crime, having been classified this act as an autonomous crime by the article 568 CP. However, in these cases, it has been understood that the crime of result (havoc) is going to absorb the crime of risk (possession of explosives), by application of the third rule of the article 8 CP, when the possession of the explosives has been brief, not acquiring criminal relevance. Pay attention to this excerpt from the Spanish Provincial Court of Barcelona´s sentence number 6781/2023: “The Spanish Supreme Court´s sentence 137/19, of 19 March states that “the jurisprudence emphasizes cases in which the crime of possession of explosives of the article 568 CP does not acquire criminal relevance, being absorbed by the crime of result of damages. Thus, it is going to be those cases in which, departing from the fact that the crime of possession of explosives is a crime of simple activity and abstract danger and anticipated consummation, because it does not require de explosion of the artefact, being enough the possession with this end, thereby the explosion may give rise to a crime of havoc, art. 346 CP, or of arson, art. 351 CP, infringements more gravely punished than the crime of possession of explosives.
In these cases, the possession of a substance or explosive device which subsequently is used, producing the corresponding explosion and the resulting damages, then the crime consummated of havoc or arson appears as a progression of the criminal action initiated with the possession of the explosives and will constitute, in this way, the last stage of the criminal progression. In such case -Spanish Supreme Court´s sentences 144/2011, of 5 April, 304/2012, of 24-April- the possession of explosives will be absorbed by the crime of result -havoc or arson- consummated and graver. And even, cases are pointed out in which the crime of possession of explosives can be subsumed by the crime of result of damages through explosives of the art. 266.1 CP, it is going to be cases in which the possession of the explosives is immediately previous to its utilization for provoking the effect of the destruction. Thus, cases are imaginable in which the risk derived from the possession of the explosives only acquires a brief meaning- and therefore absorbed by the main end of causing the damages.
But these last cases are those in which the possession has been brief, instantaneous and without material or potential availability. In these cases, is going to be applied the crime of damages, but not because is subsumed the crime of possession of explosives, but simply because this has not reached criminal relevance. And, although the possession may be brief, the crime of risk cannot be discarded altogether if the active subject has had the material and potential disposition, which without doubt will concur in who places the explosive, buys its components or manufactures it, for example.”
This excerpt makes us remember another thing, that the crime of havoc of the article 346 is similar to the crime of damages of the article 266, both precepts being different for the requisite of the destruction of the infrastructures mentioned in the article 346, and due to the fact, that the article 266 does not require as an objective element, endangering the physical integrity or life of the persons, although this last difference is not a difference, if we talk about the crime of havoc of the second point of the article 346, which does not require it.
On the other hand, it is a malicious crime, which should be possible to commit by eventual malice, and which can be committed by grave imprudence applying the article 347.
Art. 346.2:
The second point of the article 346, we can consider that it is an attenuated subtype of the basic type of the crime of havoc. The punishment of imprisonment is reduced, because of the lack of one of the objective elements required by the basic type, the endangering of the life or physical integrity of the persons.
The rest does not change, in comparison with what we already mentioned when we commented the basic type.
Art. 346.3:
This point solves many problems when we try to ascertain the relation between the crime of havoc, and the crimes against the persons which may derive from the explosion, which may be two, a crime of injuries (art. 147 and following) and a crime of homicide (art. 138 CP).
Thanks to this point, we know that there is going to be a relation of a real concurrence of crimes (art. 73 CP), this means that, each of them has to be punished separately, or as an independent crime altogether.
We should emphasize how the legislator changes the criterion followed in the article 343. Since in this article, only the gravest infringement is punished, although in its superior half. What is the reason of this change? It is impossible to know it, but I think that it is connected with the importance given to the crime, having given more importance to the crime of havoc of the article 346, than to the crime of the article 343.
– Article 347:
Like we said before, in the article 347 is also punished the havoc when they have been caused by grave imprudence.
We repeat that, the imprudence as subjective element of the type, requires the omission of a duty of care by the active subject, which should be grave, therefore, the infringement of the duty of care has to be considered important.
Section 3ª Of other crimes of risk provoked by explosives and other agents.
– Article 348:
The article 348 is a precept which has the aim of enforcing the norms of security in the treatment of explosives or other corrosive, toxic or stifling substances. The article 348 says:
“Article 348.
1. Whoever in the manufacturing, manipulation, transport, possession or marketing of explosives, inflammable or corrosive, toxic or stifling substances, or whatever other matter or devices which may be able to cause havoc, contravenes the norms of security established, endangering the life, physical integrity or the health of the persons, or the environment, shall be punished with the punishment of imprisonment from six months to three years, fine from twelve to twenty-four months and special disqualification for employment or public charge, profession or trade from six to twelve years.
The same punishments shall be imposed to whoever illegally, produces, imports, exports, markets or utilizes destructive substances of ozone.
2. Those in charge of the watch, control and utilization of the explosives which may cause havoc that, contravening the normative related with explosives have facilitated their loss or robbery shall be punished with the punishment of imprisonment from six months to three years, fine from twelve to twenty-four months and special disqualification for public employment or charge, profession or trade from six to twelve months.
3. In the cases established in the previous points, when a legal person was liable for the facts according to the established in the article 31 bis of this Code, shall be punished with fine from one to three years, except when, proven the damages produces, its amount is greater, in whose case the fine the fine shall be from the doble to the quadruple of the amount of such damages.
Attending to the rules established in the article 66 bis, the judges and courts may impose the punishments of the letter b) to g) of the point 7 of the article 33.
The punishments established in the previous points shall be imposed in their superior half when they are the directors, administrators or persons in charge or the legal person, company, organization or exploitation.
4. Shall be punished with the punishments of imprisonment from six months to one year, fine from six to twelve months and special disqualification for public employment or charge, profession or trade from three to six years those liable for the factories, workshops, means of transport, warehouses and the rest of facilities relative to explosives and which may cause havoc, when they carry out some of the following behaviors:
a) To hinder the inspection activity of the Administration in security of explosives.
b) To forge or hide from the Administration relevant information about the fulfillment of the mandatory measures of security relative to explosives.
c) To disobey the express orders of the Administration aimed at remedying the grave anomalies detected in security of explosives.”
Art. 348.1:
Starting reading the precept we observe that it is a common crime, which, therefore, can be committed by anyone.
We continue, and find the objective elements of the type. Concretely the forbidden behavior is, “…the manufacturing, manipulation, transport, possession or marketing of explosives, inflammable or corrosive, toxic or stifling substances, or whatever other matter or devices which may be able to cause havoc…”. To this we have to add that, these activities should be carried out contravening the norms of security establishes. This means that, this is a blank penal norm, which, therefore, should be completed by others. Like we said before, it is a legislative technique which has been criticized by some people, because of its infringement of the principles of legality and reserve of organic law (art. 81 CE), but the Spanish Constitutional Court has backed its use, whenever it fulfills the following requisites: a) the normative referral has to be express and justified on the basis of the legal good protected by the penal norm; b) the law, besides, pointing out the punishment, has to contain the essential nucleus of prohibition; and c) the requirement of certainty has to be satisfied or, to put it differently: “the behavior classified as criminal has to be enough specified with the help of the norm to which the penal norm refers, and is, in this way, guaranteed the function of guarantee of type with the possibility of knowledge of the action penally ordered.”
Besides, these activities contravening the established norms of security have to put into a concrete danger the life, physical integrity or the health of the persons or the environment. This transforms the crime into a crime of concrete danger, resembling also crime of result.
On the other hand, it is a malicious crime, thus, the active subject should know that he is fulfilling the subjective elements of the type, in other words, that he is dealing with dangerous substances infringing the security norms which are applicable, and with this, endangering the life or physical integrity of the persons and the environment. Nonetheless, we cannot discard its commission by eventual malice, which will take place when the active subject is conscious of the possibilities that exist of being infringing norms of collective security, and with this, putting into danger the life of persons and the environment. Although, we must reject its commission by imprudence, since it is not expressly stated by the CP (art. 12 CP).
This first point has a second paragraph, punishing with the same punishment established in the first point, whoever “whoever illegally, produces, imports, exports, markets or utilizes destructive substances of ozone.” The expression “illegally”, clearly indicates that this is a blank penal norm, which, therefore, have to be completed by others. But this time, the legislator does not demand the endangering of the life of persons or of the environment, hence, this is a crime of mere activity, which is consummated as soon as it is carried out the forbidden behavior.
Art. 348.2:
This second point punishes a different behavior altogether. Besides, this crime can only be committed by those in charge of watching or controlling the explosives which may cause havoc, transforming this crime into a special own crime.
The forbidden behavior is, to facilitate the loss or robbery of explosives which may cause havoc, infringing the regulation applicable to explosives. This last detail, transform this penal precept into a blank penal norm, which, consequently, must be completed by others for unveiling its content altogether.
On the other hand, it is a malicious crime, which could be committed by eventual malice, but not by imprudence (art. 12 CP).
Art. 348.3:
The article 348.3 has two paragraphs. The first makes the legal persons liable for the crimes established in the first and second point of the article 348, fulfilling the established in the article 31 bis CP.
The second imposed their punishments in their superior half, when the persons liable for the facts are the directors, administrators or persons in charge of the legal person, company, organization or exploitation. In this way, the punishments which shall be imposed to de facto or de jure administrators of a legal person, according to the article 31 CP.
Art. 348.4:
The punishment established in this fourth point of the article 348, is aimed at those persons in charge of factories, workshops, means of transport, warehouses and other facilities relative to explosives which may cause havoc, being this a special own crime.
The precept forbids three behaviors:
a) To hinder the inspection activity of the Administration in security of explosives.
b) To forge or hide from the Administration relevant information about the fulfillment of the mandatory measures of security relative to explosives.
c) To disobey the express orders of the Administration aimed at remedying the grave anomalies detected in security of explosives.
All of them transform this crime into a crime of mere activity.
Besides, it is a malicious crime, which should be possible to commit by eventual malice, but not by imprudence (art. 12 CP).
– Article 349:
The article 349 says:
“Article 349.
Whoever in the manipulation, transport or possession of organisms contravening the norms or measures of security established, putting into concrete danger the life, physical integrity or health of the person or the environment, shall be punished with the punishments of imprisonment from six months to two years, fine from six to twelve months, special disqualification for public employment or charge, profession or trade from three to six years.”
Firstly, this is a common crime, which, therefore, can be committed by anyone.
Secondly, the behavior punished is “the manipulation, transport or possession of organisms”. The precept does not say anything about the size of these organisms, nor about any other characteristic. Therefore, it seems to be referred to any organism, the important is that it has to be alive.
Thirdly, like before, this behavior has to be carried out contravening the norms or measures of security established. This indicates that, it is a blank penal norm which should be completed with others.
Fourthly, this behavior infringing the measures of security has to put into “concrete danger the life, physical integrity or health of the person or the environment.” Therefore, this is a crime of concrete danger, although we do not need to specify the persons affected because we are in a title dedicated to the legal good collective security.
And fifthly, this is a malicious crime, which could be committed by eventual malice, but not by imprudence.
– Article 350:
The article 350 says:
“Article 350.
Without prejudice of the established in the article 316, shall incur in the punishments established in the previous article whoever in the opening of wells or excavations, in the construction or demolition of buildings, dams, canalizations or analogous works or, in their conservation, fitting-out or maintaining infringes the norms of security established whose nonobservance may cause catastrophic results, and put into concrete danger the life, the physical integrity of the persons or the environment.”
This article starts establishing a real concurrence of crimes (art. 73 CP), between the established in the article 316, concerning the security of the workers in their work, and the established in the article 350. This is the meaning of “Without prejudice of the established in the article 316.”
Setting aside the punishments, the next thing we know is that, it is a common crime, which can be committed by anyone. We draw this from the word “whoever”.
We advance, reading the forbidden behavior, it is punished whoever “in the opening of wells or excavations, in the construction or demolition of buildings, dams, canalizations or analogous works or, in their conservation, fitting-out or maintaining infringes the norms of security established whose nonobservance may cause catastrophic results”. Again, we have to consider this precept as a blank penal norm, because the behavior has to infringe the norms of security established. And, it is also important that, these infringements have to cause catastrophic results.
To the above, we have to add another objective element of the type, for this infringement of the norms of security with the capacity of causing catastrophic results has to put into concrete danger the life or physical integrity of the persons or the environment. Therefore, it is a crime of concrete danger, in which it is not necessary to identify the persons endangered, since the legal good protected is the collective security. This feature makes it resemble a crime of result, being the result required the putting into danger of the legal good protected by the norm.
Beyond that, this is a malicious crime which should be possible to commit by eventual malice, but not by imprudence (art. 12 CP).
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com