“Of the crimes of illegal financing of the political parties”, is how it is entitled the Title XIII bis, of the Book II, concerning the crimes and its punishments, of the Spanish Penal Code (CP).
Such title was introduced in the CP by the Organic Law 1/2015, of 30 March (LO 1/2015), with the aim of expressly punishing those behaviors which had created social alarm, but which did not fit in any of the CP´s precept yet, we refer to the illegal financing of political parties. The legislator tried to guarantee the independence of the private organizations called political parties, for their end is public, to serve the interests of those citizens who votes them, and not the particular interests of the physical or legal persons that finance them, making effective in this way, the principle enshrined in the article 1 of the Spanish Constitution, according to which the national sovereignty resides in the Spanish People. The point XIX of the exposition of motives of the LO 1/2015 says: “Lastly, the reform introduces a new Title XIII bis entitled “Of the crimes of illegal financing of the political parties”, formed by two new articles 304 bis and 304 ter, which gives a penal answer to the necessity of defining a specific penal type for these criminal acts, since in the current Spanish legislation there exists no concrete crime which is typified as crime of illegal financing of political parties. With this modification shall be punished those persons which accept or receive illegal donations or who participate in structures or organizations whose main object is illegally financing a political party.”
As we have just seen, it is a titled only formed by two articles, the article 304 bis and the article 304 ter, the former punishes who receives or give donations to a political party with infringement of the established in the Organic Law 8/2007, of 4 July, about the financing of the political parties, and the latter, who participates in structures or organizations, whatever their nature, whose end is the financing of political parties, contravening the established by the law.
Let us now start to comment the more important aspect of the aforementioned articles.
– Art. 304 bis:
Firstly, let us read this article 304 bis.
“Article 304 bis:
1. Shall be punished with a punishment of fine from three times to five times of its value, who receives donations or contributions destined to a political party, federation, coalition or group of electors with infringement of the established in the article 5.One of the Organic Law 8/2007, of 4 July, about the financing of the political parties.
2. The aforementioned facts shall be punished with a punishment of imprisonment from six months to four years and fine from three times to five times its value or excess when:
a) They are donations established in the article 5.One, letters a) to c) of the Organic Law 8/2007, of 4 July, about the financing of political parties, of an amount greater than 500.000 euros, or which surpasses in this amount the limit fixed in the letter b) of such precept, when this is the infringed.
b) They are donations established in the article 7.Two of the Organic Law 8/2007, of 4 July, about the financing of the political parties, which surpass the amount of 100.000 euros.
3. If the facts to which is referred the previous point are of special gravity, the punishment shall be imposed in its superior half, being possible to reach the superior in degree.
4. The same punishments shall be imposed, in their respective cases, to who gives donations or contributions destined to a political party, federation, coalition or electors group, by himself or through intermediary person, in any of the scenarios of the previous points.
5. The same punishments shall be imposed when, according to the established in the article 31 bis of this Code, a legal person is liable of the facts. Attending to the rules established in the article 66 bis, the judges and courts may impose the punishments established from the letter b) to g) of the point 7 of the article 33.”
After reading it, does it ring you a bell? It seems to me, that the article 304 bis punishes behaviors very similar to those punished from the article 286 bis to the article 286 quarter as crimes of corruption in the businesses. In both cases, is punished the active corruption (to give) and the passive corruption (to receive), and in essence their object is the same, to alter the normal behavior of an institution (public or private) through bribery, or to put it differently, to corrupt those in charge of taking important decisions with money or other gifts. It is possible that, I am not the only one who has thought about the similarities between both cases, even it is possible that the legislator may have thought in it, perhaps the reason of why they are not regulated together is the legal good protected by each of them. Whereas, in the crimes of corruption in the business the legal good protected is the free competence, in the crime of illegal financing of political parties is the correct behavior of the system of political parties and the development of the functions which constitutionally they have assigned.
But, let us set aside to what it looks like and to what it does not look like, and let´s analyze the article, which is in reality the most important.
The article 304 bis has five points, in the first the receiving of donations or contributions for a political party, in the second we have an aggravated subtype of the previous, in the third another aggravated subtype for the cases in which the facts are especially grave, in the fourth is punished who gives donations or contributions to a political party, and in the fifth and last, is established the penal liability of the legal persons.
Article 304.1 bis:
Let us start with the first. The first interesting that it says is that, “Shall be punished…”, it is interesting because we now know that it is a common crime, in other words, which can be committed by any one, since the type does not demand special qualities from the active subjects based, for example, on a profession or job.
The next that we find is the typical behavior, it is punished who “receives donations or contributions destined to a political party, federation, coalition or group of electors with infringement of the established in the article 5.One of the Organic Law 8/2007, of 4 July, about the financing of the political parties.”
The typical action consists in receiving, therefore, in taking what someone gives or sends. We also observe that, the consummation of the type does not require a result, thereby, this is a crime of mere activity, which is consummated as soon as the typical action described in the type is carried out.
What is taken are donations or contributions with infringement of the established in the article 5.One of the Organic Law 8/2007, of 4 July, about financing of the political parties (Organic Law 8/2007). Here, in my opinion the legislator incurs into an error describing the type, for the only that is forbidden by the article 5.One of the Organic Law 8/2007, are the donations, mentioning nowhere the “contributions”, though it is possible that the legislator included this term for the sake of clarity, since it is a term without the legal connotations that the word donations has. In any case, a donation is a contribution, since the article 618 of the Spanish Civil Code says that, “The donation is an act of liberality by which a person freely gives a thing to another, who accepts it.” Therefore, a donation is just the transmission of a thing without compensation by who receives it.
Concretely, the article 5 of the Organic Law 8/2007, of 4 July, says:
“Article 5. Limits to the private donations.
One. The political parties cannot directly or indirectly accept or receive:
a) Anonymous, purpose-driven or revocable donations.
b) Donations coming from the same person of more than 50.000 euros per year.
c) Donations coming from legal persons and entities without legal personality.
Are excluded from the limit established in the letter b) the real estate donations in kind, always that are met the requisites established in the article 4.2, of the letter e).
Two. All the donations of more than 25.000 euros and in all cases, the donations of real state, shall be notified to the Court of Auditors by the political party within three months from their acceptance.”
In this way, any donation, into which we include any contribution, which does not meet the requisites of the article 5.One of the Organic Law 8/2007, is a penal illicit by virtue of the article 304 bis.
Let us now pay attention to each of the prohibitions of the article 5.One of the Organic Law 8/2007. According to this article, “The political parties cannot directly or indirectly accept or receive: a) Anonymous, purpose-driven or revocable donations.” An anonymous donation, is that in which the donor is not known, purpose-driven donation, are those which are carried out with the express intention of being destined to an specific aim, and a revocable donation, evidently, is that which can be revoked, the question is that, according to the Civil Code there exist three type of revocable donations:
The revocable donations of the article 644:
“Article 664.
Any donation between living persons, made by an individual without children or descendants, shall be revocable by the mere occurrence of any of the following cases:
1º That the donor has, after the donation, children, even posthumous.
2º That the donor´s child whom he believed dead when he made the donation is found alive.”
The donation of the article 647:
“Article 647.
The donation shall be revoked at the request of the donor, when the donee fails to comply any of the conditions imposed by the donor.
In this case, the donated goods shall be returned to the donor, being null and void the disposal of goods that the donee has made and the mortgages which upon them he has imposed, with the limitation established, regarding third parties, by the Mortgage Law.”
And the donation of the article 648:
“Article 648.
The donation can be also revoked, at the request of the donor, by ingratitude in the following cases:
1.º If the donee commits any crime against the person, honor or goods of the donor.
2.º If the donee imputes to the donor any of the crimes which give rise to proceedings ex officio or public prosecution, although he proves it; except when the crime has been committed against the own donee, his spouse or the children constituted under his authority.
3º If the donee unduly denies him food.”
And there is a fourth scenario of reduction of donations:
“Article 654.
The donations which, according to the established in the article 636, are inofficious taken the liquid value of the donor´s goods at the moment of his death, shall be reduced in their excess; but this reduction will not be effective during the donor´s life and donee is going to be still able to appropriate to himself the benefits.
For the reduction of the donations are applicable the established in this chapter and the articles 820 and 821 of this Code.”
And the article 636 says:
“Article 636.
Notwithstanding the established in the article 634, no one shall be able to give or receive, by donation, more of what he can gives or receives by testament.
The donation shall be inofficious in all that exceed this measure.”
On the other hand, the Organic Law 8/2007 does not distinguish among these three, or four, types of revocable donations, hence, in principle, we might think that any of the previous donations received by a pollical party cannot be revocable, or the law would be infringed. But in my opinion, it cannot be the correct interpretation, when the article 5.One of the Organic Law forbids the revocable donations to the political parties, it is exclusively referring to the donations of the article 647, since them are subjected to the fulfilment of conditions by the donee, being this what is trying to avoid the regulation regarding the financing of the political parties, their loss of impartiality or independence by economic motives. Furthermore, in the rest of cases of revocation of donations, the causes are legally set, being impossible to consider that they may affect their impartiality or independence.
The second of the prohibitions which the article 5.One of the Organic Law 8/2007 establishes, are the “b) Donations coming from the same person of more than 50.000 euros per year.” We understand that it is referring to donations coming from physical persons, among other things, because the donations coming from legal persons and entities without legal personality, are expressly forbidden in its point c). But, careful, because in the article 5.One is established an exception to the previous general rule of the point b), “Are excluded from the limit established in the letter b) the real estate donations in kind, always that are met the requisites established in the article 4.2, of the letter e).”
According to the letter e) of the article 4.2 of the Organic Law 8/2007, “e) The donations in kind shall be understood accepted through certification issued by the political party in which has to be expressed, besides the identification of the donor, the public document or other authentic document which proves the delivery of the donated goods making express mention of the irrevocable character of the donation.”
The assessment of the donations in kind shall be carried out according to the established in the Law 49/2002, of 23 December, on the Fiscal Regime of Non-Profit Entities and Fiscal Incentives for Patronage.»
And the third and last of the prohibitions which is established, is concerning the “c) Donations coming from legal persons and entities without legal personality.” In my opinion, the prohibition affects any kind of donation.
The donations can be made to different kinds of entities, “a political party, federation, coalition or group of electors.” Here, we shall point out that the Organic Law 8/2007 does not distinguish among them either, for in its article 1 where is established its ambit of application, it says that:
“Article 1. Ambit of application of the Law:
The financing of the political parties, federations, coalitions or groups of electors shall be subjected to the established in this Organic Law.
For the purposes of this Law the expression “political party” shall comprehend, in its case, all the aforementioned entities.”
With respect to the subjective elements of the type, this is a malicious crime, which, thus, requires that the active subject should know and want to carry out the subjective and objective elements of the type. It is not possible its commission by imprudence, since it is not expressly mentioned in the type like the article 12 CP requires.
In order to determine the legal goods protected by the type, let us read the said by the Spanish Provincial Court of Santander´s sentence number 33/2020: “32. The legal good protected by this penal type is the correct behavior of the system of parties and the fulfilment of the functions that they have legally assigned, hence, its intention is the transparency in the financing, the equality of opportunities among the different political forces and the internal democracy of the parties, in a way that the specific unjust of the crime is the alteration of the behavior of the system of parties either in the referent to the equality of opportunities among them, the breaching of the internal democracy and the oligarchizing of the political organizations, this is, the normal development of the functions which they have constitutionally attributed, like the political pluralism, formation of the popular will and the development of the political participation, according to the established in the article 6 CE.”
Article 304.2 bis:
In the second point of the article 304 bis, we find an aggravated subtype of the typical behavior established in the first. It is a substantial change, for, although the punishment of fine is maintained, to this is added a punishment of imprisonment from six months to four years.
As we have seen, the conditions which can be met for applying this second point are two, both taking as criterion a determined economic threshold:
“a) They are donations established in the article 5.One, letters a) to c) of the Organic Law 8/2007, of 4 July, about the financing of political parties, of an amount greater than 500.000 euros, or which surpasses in this amount the limit fixed in the letter b) of such precept, when this is the infringed.
b) They are donations established in the article 7.Two of the Organic Law 8/2007, of 4 July, about the financing of the political parties, which surpass the amount of 100.000 euros.”
Therefore, we have to complete this prohibitions with the article 7.Two of the Organic Law 8/2007, “The political parties cannot accept any kind of financing by foreign Governments and public foreign organisms, entities or companies or companies directly or indirectly related with them.”
When these thresholds are not surpassed, the Court of Auditors is going to be able to punish such behaviors administratively (art. 17 of the Organic Law 8/2007).
Article 304.3 bis:
In the article 304.3 bis, we find a superaggravated subtype of the previous aggravated subtype. Then, we should understand that the thresholds established by this second point should be also surpassed, but in this case, by a great amount of money. Nevertheless, this amount of money is not specified in the law, so the application of this type is completely a decision of the judges or courts.
Article 304.4 bis:
If in the first point of the article 304 bis, is punished the receiving of donations or contributions for a political party, in the fourth point is punished the delivery of donations or contributions, but being applicable the rest of rest of dispositions which were already applicable to the first point, we are referring to the aggravated and superaggravated subtypes. Like before, the crimes is consummated as soon as it is carried out the typical behavior, that is to say, it is a crime of mere activity, in which is not required a specific result to understand consummated the type, any result will pertain, in any case, to the stage of exhaustion of the crime.
It is also a malicious crime, which does not admit its commission by imprudence.
Concerning the active subject, in the type is specified that it can be committed “by himself or through intermediary person”. This implies that, this is not a crime which can only be committed by the person who executes the act, but in reality, this does not add anything new, for according to the general rules of the article 28 CP, author is also who commits the crime through someone who he uses as an instrument.
Article 304.4 bis:
According to this point, the legal entities can be also liable of the crimes described in the previous points of this article.
– Article 304 ter:
Let us first read this article 304 ter:
“Article 304 ter.
1. Shall be punished with the punishment of imprisonment from one to five years, who participates in structures or organizations, whatever their nature, whose end is the financing of political parties, federations, coalitions or groups of electors, outside the provisions of the law.
2. The punishment shall be imposed in its superior half to the persons who run such structures or organizations.
3. If the facts to which the previous points refer are of special gravity, the punishment shall be imposed in its superior half, being possible to reach the superior in degree.”
In the article 304 ter, we find a wholly independent type with respect the previous article 304 bis, since both punish behaviors which do not depend on each other to understand consummated the type. However, the relation between both precepts is undoubtable, for a structure or organization will be able to commit too, the crimes of the article 304 bis, since it would be precisely the motive or their existence. Then, there is going to exist a concurrence of crimes between the article 304 bis and the article 304 ter, when the established in both precepts is fulfilled. Like in other cases, the legislator has wanted to harshen the cases in which the financing of a political party has been carried out through a structure or organization.
We find the definition of criminal organization in the article 570 bis, “For the purposes of this Code it is understood by criminal organization the group formed by more than two persons with stable character or for undefined time, which in a concerted and coordinated way divide among themselves different tasks or functions with the aim of committing crimes.”
Besides, the punishment imposed is going to be in its superior half when the punished are the persons who run such structure or organizations, or when the facts are especially grave, being possible in these cases to reach even the superior in degree.
Here, we have a problem, since the membership to a criminal organization is already punished independently by the types of the article 570 bis and art. 570 ter. We cannot use two types for punishing the same behavior, since it would be an infringement of the principle non bis in idem, according to which, it is not possible to punish more than once the same person for the same facts. How can we solve this problem? We find the solution in the second paragraph of the second point of the article 570 quarter, which establishes that, in any case, when the behaviors established in such articles is included in another precept of the CP, it is going to be applicable the fourth rule of the article 8, which establishes the criterion of alternativeness.
On the other hand, it is a malicious crime, which cannot be committed by imprudence.
With respect to the legal good protected, it is the same that the pointed out in the article 304 bis, “the correct behavior of the system of parties and the fulfilment of the functions that they have legally assigned.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com