“Of the crimes on the historic patrimony” is the title of the Chapter II, of the Title XVI, of the Book II, of the Spanish Penal Code (CP). It is a chapter made up of 4 articles, each protecting a different object of the crime, though the legal good affected is always the same, the historic patrimony. To the Chapter II, we have added the Chapter V of the same title, for in it are gathered three articles as common dispositions, which as such, have to be understood integrated in each of the chapters of the Title XVI.
– Article 321 CP:
The article 321 is the first of the articles we find concerning the protection of the historic patrimony. In its case, it has the particularity of having as object of the crime the buildings protected by their artistic, cultural or monumental interest.
Let us first see its content, for later analyzing it. The article 321 says:
“Article 321.
Those whoever demolish or gravelly alter buildings singularly protected by their historic, artistic, cultural or monumental interest shall be punished with the punishments of imprisonment from six months to three years, fine from twelve to twenty-four months and, in any event, special disqualification for profession or trade from one to five years.
In any case, the Judges or Courts, reasoning it, may agree, at the expense of the author of the facts, the reconstruction or restauration of the building, without prejudice of the compensations owed to third parties of good faith.”
The first that the precept describes is the behavior and the object on which this is carried out, what is punished is to demolish or gravelly alter buildings singularly protected by their historic, artistic, cultural or monumental interest.
Like we said at the beginning, the article 321 has the particularity of being aimed to the protection of buildings singularly protected by their historic, artistic, cultural or monumental interest. According to the Dictionary of the Royal Spanish Academy of the Language (DRAE), a building is a “Stable construction, made with lasting materials, for being inhabited or for other uses.” The problem is that, not all building is protected by the article 321, but only those singularly protected by their historic, artistic, cultural or monumental interest. The lack of definition of the norm establishing the object of protection, must be corrected with another, thereby it is a blanket penal norm. The law which helps us to complete it, is the Law 16/1985, of 25 June, on Spanish Historic Patrimony (Law 16/1985), which in its article 9.1 states: “1. Shall enjoy singular protection the goods integrating the Spanish Historic Patrimony declared of cultural interest by this law or individually by Royal Decree.” Then, the buildings protected by the art. 321 are those either “in general” covered by the Law 16/1985 or particularly shielded by Royal Decree.
Notwithstanding, although a building may be not protected by any of the above means, the behavior which damages it may be also punished by the CP through its article 323, which does not require its prior registration or inventory. It is going to be left to the judges´ and courts´ criterion whether such building is protected by its special historic or artistic value. Pay attention to this excerpt from a Spanish Supreme Court´s sentence: “Like we stated in the sentence number 641/2019, of 20 December 2019, “when it establishes as a typical element that the damage has to be made on goods of historic, artistic, scientific, cultural or monumental value (or on archaeological sites, terrestrial or underwater), it is referring to a normative and cultural element, for whose assessment the judges or courts should attend to elements or values which shape administrative regulations in this matter; without necessity that this good should be previously declared, registered or inventoried by the administration with this character, for it is not a requirement established in the law and would not adequately fulfill the article 46 CE.”
On the other hand, the typical behavior has two variables, to demolish or gravelly alter. To determine the scope of the action of demolishing a building, does not suppose many problems, immediately we imagine a building shattered by dynamite or thanks to a crane with a big metallic ball. But we have more problems determining when it is going to be gravelly altered, for this, we should make use of the jurisprudence. The Spanish Supreme Court´s sentence number 645/2004, of 25 May states: “The expression demolition is of easy comprehension and probably it does not cause many troubles. It is not the same with the grave alteration, since delimiting such gravity is a question difficult to ascertain. Three things we have to say here: a) It has to be quantitatively important; b) It has to be qualitatively relevant regarding the aim of this penal norm: the protection of the historic interests or similar expressed by the norm, thereby in the case of partial alteration, this has to affect the part of the building in which the protected interest is embodied; c) When this gravity does not exist, we have the problem of the possible application of the article 323, which does not require that gravity and looks like a generic norm, not like the article 321, more specif. Though the most adequate -and above all with the most important punishment of the established, the imprisonment, which paradoxically is more severe in the article 323 regarding its minimum duration- may be to punish these behaviors by the administrative order.”
Pay attention to the fact that, the Spanish Supreme Court prefers to punish the behavior by the administrative order, and not through the article 323, when the alteration in the building is not grave. In consequence, the application of the article 323 instead of the article 321, should take place when a building protected by neither the Law 16/1985, nor Royal Decree, but with historic, artistic, scientific, cultural or monumental value, is demolished or gravelly altered.
With regard to the subjective elements of the type, this is a malicious crime. The existence of malice supposes, that the active subject knows the objective elements of the type, and despite this, he wants to carry out them, this is what is known as direct malice. However, we should not dismiss its commission by eventual malice, which takes place when the active subject knows that probably he is going to fulfill the objective elements of the type with his behavior, but nevertheless, he executes it. Though it is a pure malicious crime, it is possible to punish the demolition or gravelly alteration of a building singularly protected, and even when it just has an artistic, historic, cultural, scientific or monumental value, when the damages have been the result of grave imprudence, although these cases, will be punished according to the established in the article 324. There exists grave imprudence, when the author of the facts has omitted the most essential rules of care, imposed by either a norm or socially, without never having foreseen the damaging result, and existing a relation of causality between such damaging result and the omission of the duty of care.
Lastly, the legal good protected is the historic, cultural and artistic patrimony of the Spanish goods. A legal good which is constitutionally recognized by the article 46 of the Spanish Constitution.
So far, we have described the objective and subjective elements of the type, and the legal good protected by the norm. But the article 321 does not end here, it has a second paragraph which authorizes Judges and Courts to order, at expense of the author of the facts, the reconstruction or restoration of the building, without prejudice to the compensations owed to third parties of good faith. This faculty of the judges and courts could not be considered a punishment, since it is not included in the article 33 CP, nor is it part of the civil liability derived from the crime, for the article 109 CP obliges to the compensation of the damages caused as consequence of a crime. Therefore, it is just a civil consequence derived from the crime. The matter is that, if the article 109 obliges to compensate always the damages caused with a crime, the faculty granted by the article 321 to judges and courts, should be interpreted restrictively, in other words, the general rule should be to order the reconstruction and restoration of the building, and the exception, not to do it. Pay attention, to what is added at the end of this second paragraph, “without prejudice of the compensations owed to the third parties of good faith”, could condition the active subject´s impossibility of paying these compensations owed to third parties of good faith, the order of restoration or reconstruction of the building? In my opinion yes, this could be one of the exceptions according to which the judges and courts may not order the restoration or reconstruction of the affected building. Nevertheless, the author of the facts can never receive any type of benefit from the commission of the crime, then, in these exceptional cases the seizure of the profits and goods obtained with the crime (art. 127 CP), should be also order, a seizure which should include the own building.
– Article 322 CP:
In the article 322, we can understand that we find a variable of the crime of urban development prevarication of the article 320 CP. The article 322 says:
“Article 322.
1. The authority or public servant whoever, knowing its injustice, has favorably reported projects of demolition or alteration of buildings singularly protected shall be punished with besides the punishment established in the article 404 of this Code with imprisonment from six months to two years or fine from twelve 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 collegiate body has ordered or voted in favor of its granting knowing its injustice.”
The article 322 is formed by two points, each punishing two different behaviors, although they are clearly related.
Art. 322.1:
Reading the precept, the first that we realize is that, it is a special own crime, since can only be committed by authority or public servant. Notwithstanding this legal limitation of the active subjects, we shall not dismiss the participation of other participants, either as necessary cooperators or accomplices, without those having to fulfill more requisites than those legally set by the law with general character, in order to be regarded as that.
We continue reading, and the next thing that draw our attention is a subjective element of the type, the authority of public servant should act “knowing its injustice”. In this way, it is clearly marked the malicious character of the type, since the active subject should know that he is acting contrary to the law. Remember that, there is malice always that the author knows the objective elements of the type, and despite this, he decides to carry out them.
Subsequently, the precept establishes the typical behavior, which consists in favorably reporting projects of demolition or alteration of buildings singularly protected. The precept seems to be referred, to the support through a report the demolition or alteration of a building singularly protected. Though, this is important, this support is going to be illicit only when the subjective element, previously mentioned, is also fulfilled, to put it differently, it has to be done knowing that it is contrary to the current regulations.
The first point of this article 322 seems to be aimed more to public servant than to a politician, as for example, a municipal architect.
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 urban development 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 322 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 “knowing its injustice”.
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 authorization of the demolition or alteration of a building singularly protected.
If before I said that the typical behavior described in the first point seemed to be aimed to a public servant, like a municipal architect. On the contrary, the one of the second point, seems to be more conceived for an authority, a politician, for example, the Mayor or a town councilor.
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 323:
In the article 323, is punished whoever causes damages on goods of historic, artistic, scientific, cultural or monumental value, or on archaeological sites, terrestrial or underwater. Let us first read it, for later analyzing it:
“Article 323.
1. Shall be punished with the punishment of imprisonment from six months to three years or fine from twelve to twenty-four months whoever causes damages on goods of historic, artistic, scientific, cultural or monumental value, or on archeological sites, terrestrial or underwater. With the same punishment shall be punished the acts of plundering on the latter.
2. If damages of special gravity have been caused or which have affected goods whose historic, artistic, scientific, cultural or monumental value is especially relevant, shall be possible to impose the punishment superior in degree of the established in the previous point.
3. In all these cases, the judges and courts may order, at the expense of the author of the damages, the adoption of the measures aimed to restore, in the possible, the good damaged.”
The first thing that we find when we read the precept, is the typical action and the object on which is committed the crime. Let us begin determining what we should understand by damages, for this, we are going to make use of the Spanish Supreme Court´s sentence number 333/2021, of 22 April: “From a literal interpretation of the terms of the typicity, the crime of damages comprehends the behavior of destruction, deterioration, disablement or damage for, according to the dictionary of the Spanish language, to damage “supposes to diminish something, taking from it a part, shorten it, dwindle it; to wear out and take the shine off something, taking from it part of the shining it had before”, being equivalent “to damage” to “to break, impair, put in an inferior condition something or deteriorate, degenerate”, definitions from which result “that there exists ambits in which, not being produced a destruction or physical decrease of the material object, it is produced, however, a damage for its deterioration, because of the production of an alteration in its external appearance”, hence, “from a literal interpretation of the precept, the behavior proven causes a damage to the good whose reparation requires an actuation for the restitution to its previous state, which is economically assessable.”
It is especially relevant, how the previous excerpt ends, in order to understand that there have been damages, an actuation for the restitution of the good to its previous state has to be required, which besides, has to be economically assessable. Otherwise, the object on which the crime has been committed would not be damaged, but merely defaced, what would imply the unlawfulness of the behavior from the penal point of view, although not from the administrative, being considered such behavior a minor infringement according to the article 37.13 of the Citizen Security Law. The Spanish Supreme Court´s sentence number 333/2021 continues: “We are before two homogeneous behaviors, hence decriminalized the behavior of the article 626 CP, which constituted a special penal precept, contemplating cases in which the basic result only required labors of cleaning, the behavior can be included in the crime of damages if patrimonial damages are caused and will be the amount what entails the application of the crime or of the minor offence.” “If when the article 626 CP was in force, the discussion was between the crime of damages and the misdemeanor of defacing, now the discussion is between the crime and the minor offence and the administrative infringement of the article 34 of the Citizen Security Law, which has to be solved according to the classical criterions that distinguish between the penal and administrative infringements depending on the gravity of the behavior and the result, being necessary to act, in each case, criterions of proportionality.”
The object on which the crime is committed is also important for classifying the facts, for we have to distinguish between the damages caused to a common good, facts which should be punished according the crime of damages of the article 263 and following, or to a good with historic, artistic, scientific, cultural or monumental value, or on archeological sites, terrestrial or underwater, facts which should be punished according to the crime of damages of the article 323.1 CP. A distinction, which perfectly fits within the residual character of the crime of damages of the article 263, which punishes the damages in alien property not covered by other precept of the CP. What or who does decide when a good has this historic or artistic value? It is going to be the judge or court judging the facts, according to values or elements shaping the administrative regulations in the matter, but it is not going to be necessary their prior formal registration or inventory with that character. This has been the criterion followed by our courts, here we are obliged to repeat, for the sake of clarity, the said by the Supreme Court, in its sentence number 641/2019, of 20 December: “the article 323 of the Penal Code, “when it establishes as a typical element that the damage has to be made on goods of historic, artistic, scientific, cultural or monumental value (or on archaeological sites, terrestrial or underwater), it is referring to a normative and cultural element, for whose assessment the judges or courts should attend to elements or values which shape administrative regulations in this matter; without necessity that this good should be previously declared, registered or inventoried by the administration with this character, for it is not a requirement established in the law and would not adequately fulfill the article 46 CE.”
However, the type is not limited to punish the cases in which is punished a good of historic or artistic value, since it also punishes the acts of plundering on this kind of goods. The “plundering” is defined by the article 4 of the Spanish Historic Patrimony Law: “all action or omission which put into danger of loss or destruction all or some of the values of the goods which integrate the Spanish historic patrimony or which disrupt the fulfillment of their social function.”
In the crime of plundering of the article 323, there exists multiple examples, in which the courts have punished the attempt, something which does not happen with the damages of the same precept. For example, the Provincial Court of Burgos, in its sentence number 111/23 of 24 March: “The appellant argues that is not possible to commit the crime in the degree of attempt, however we should distinguish two subtypes, the damages (where possibly it is not possible), and the plundering, consisting in the taking goods of historic, cultural or artistic value and for this reason it is similar to the crime of theft, and concretely with the aggravated subtype of the article 235.1.1 of the Penal Code, hence there is no doubt of the possibility of its commission in the degree of attempt, being enough with initiating acts aimed to the search of archaeological rests, without necessity of finding them, and in the tried case the accused went at night to an archaeological site, carrying means, metal detectors, and rake, having made various holes, entailing that his goal was to take archaeological elements, although he desisted, when he was surprised by the agents of the Civil Guard, Seprona.”
In any case, the relevant to determine whether there has been attempt or not is that, despite the fact that the active subject has carried out all or part of the acts which objectively should produce the result, this has not been produced for causes alien to his will (art. 16 CP). To the authors of an attempt will be imposed the punishment inferior in one or two degrees of the established by the Law for the consummated crime (art. 62 CP).
In my opinion, there exists difficulties distinguishing the crime of plundering (art. 323 CP), from the crime of theft (art. 234 and following CP), and more if we consider that the theft of things of artistic, historic, cultural or scientific value, is an aggravated subtype of the latter (art. 235 CP). Anyway, the punishments for both are very similar.
On the other hand, leaving behind the objective elements of the type, it is a malicious crime, in which we should not dismiss its commission by eventual malice, nor when instead of malice there has been imprudence, though in these cases the facts will be punished by the article 324, and not the 323.
Art. 323.2:
In the article 323.2 we find an aggravated subtype of the previous, which is going to be of application when the behaviors described in the first point have affected to goods of historic, artistic, scientific, cultural or monumental value of special relevance.
The punishment which must be imposed is the superior in degree. According to the first point, of the article 70: “The punishment superior in degree is formed departing from the maximum amount established by the law for the crime and increasing it in half of this amount, constituting the ensuing result its maximum limit. The minimum limit of the punishment superior in degree shall be the maximum of the punishments established by the law for the crime, increased in one day or one day of fine depending of the nature of the punishment to be imposed.”
Therefore, in these cases, the punishments to be imposed is from three years and one day to four years and six months of imprisonment, or of fine from twenty-four months and one day to thirty-six months.
Art. 323.3:
Like in the second paragraph of the article 331, the established in this third point of the article 323 should be considered a civil consequence of the crime, but not a punishment or part of the civil liability derived from it.
For the same motives than before, the general norm should also be that, the judges and courts order at the expense of the author the restoration of the damaged good, being the exception not to do it.
– Article 324:
The article 324 fix the flaws left by the preceding articles 321 and 323, which only punish the commission of the behaviors described in them when there has been malice but not imprudence.
The article 324 says:
“Article 324.
Whoever by grave imprudence causes damages, in an amount greater than 400 euros, in an archive, registry, museum, library, educational institution, scientific cabinet, analogous institution or goods with artistic, historic, cultural, scientific or monumental value, as well as archaeological sites, shall be punished with the punishment of fine from 18 months, attending to the importance of them.”
Like we see, in the article 324 is not punished any type of imprudence, only the gravest cases. There is imprudence, when the author of the facts omits the more elemental rules of care, regardless of whether these has been imposed by a norm or socially, and without having envisaged the damaging result.
Common dispositions:
– Article 338:
Through the article 338, it is punished in an especially severe way the behaviors which damage protected natural spaces. The article 338 says:
“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.”
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.”
– 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.”
The Title XVI grants a special protection to the legal good ecological balance, obliging the judges and courts to order, at the expense of the author of the facts, the necessary measure to restore it. This obligation imposed on judge and courts, differs from the way the legislator has decided to protect the goods of historic or cultural value of the Chapter II, for in their case, their restoration has been shaped as a faculty of the judges and courts. The different treatment is on the basis of the legal good affected in each case, having been given more importance to the legal good ecological balance, than to the legal good historic, cultural and artistic patrimony of the Spanish goods.
The doubt may arise, of what happens when this difference of treatment enters into conflict, for example, when the plundering of an archeological site affects also to the ecological balance. In these cases, the legal good ecological balance should prevail, being obliged the judges and courts to order the necessary measures for their restauration in any case.
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 in my website: www.victorlopezcamacho.com