(Click on the advertisements & follow me)
“Of the damages” is how is entitled the Chapter IX, of the Title XIII, about the crimes against the patrimony and the socioeconomic order, of the Book II, which contains the crimes and their punishments, of the Spanish Penal Code (CP).
This is a chapter formed by eight articles, each one with its own ambit: In the article 263, we find the basic type of the crime of damages; In the article 264, the so-called crime of computer damages, from which derive other three articles, dedicated to other aspects related with the above; In the article 265, are regulated the damages which affect goods pertaining to the army or the police; In the article 266, we have a qualified type of damages, when they are produced through fire, or provoking explosions, or using any other means of similar destructive power or which generates a relevant risk of explosion or the production of other damages of special gravity, or putting into risk the life and the integrity of the persons, and; In the article 267, are punished the damages caused by gross imprudence.
– Article 263:
In order to comment the article 263, we are going to start just reading it, later we are going to do the same with the Spanish Supreme Court´s sentence 333/2021, of 22 of April, for it appears in numerous resolutions from subordinate courts, giving it importance, later we are going to try to extract the more important points from this sentence, and lastly, we are going to study those other aspects of the article 263 not covered by it, with other resolutions. Let us begin.
The article 263 states:
“Article 263.
1. Who causes damages in alien property not comprehended in other titles of this Code, will be punished with fine from six to twenty-four months, attending to the economic condition of the victim and the amount of the damage.
If the amount of the damage caused does not exceed the 400 euros, will be imposed a punishment of fine from one to three years.
2. Will be punished with the punishment of imprisonment from one to three years and fine from twelve to twenty-four months who causes damages expressed in the above point, if any of the following scenarios concurs:
1º That they either are carried out for impeding the free exercise of the authority or as consequence of actions executed in the exercise of its functions, or the crime is committed against public servants, or private persons who, as witnesses or in any other way, have contributed may be able to contribute to the execution or application of the laws or general dispositions.
2º That they are caused by any means, infection or contagion of livestock.
3º That poisonous or corrosive substances are employed.
4º That goods of communal or public domain or use are affected.
5º That they ruin the damaged or place him in a severe economic situation.
6º That they have occasioned damages of special gravity or affected to general interests.”
And this is what the Spanish Supreme Court´s sentence number 333/2021, of 22 April, says about it: “The penal type of the article 263 of the Penal Code, the crime of damages, describes as typical behavior the causation of damages in alien property. It is a residual type, for the own wording refers to typicity in the crime regarding the caused not comprehended in other titles of the Penal Code. The scarce typical writing has been object of a reiterated interpretation by the jurisprudence among which we stress the main milestones: the material object is either a movable or non-movable thing, material and financially assessable, susceptible of deterioration or destruction and of exercise of the property; the typical behavior consists in the destruction, deterioration or disablement with damaging of the substance of the good; all the means of commission are possible, though some of them are the object of special aggravation in the article 264 of the Penal Code; the shaping of the type oriented to the prohibition of the result, makes possible the commission by omission, and the result is produced by the destruction, deterioration or damaging, being feasible any form of tentative (Spanish Supreme Court´s sentence 341/2015, of 16 June).
Consequently, the objective element of this basic type is to cause a damage in alien property (not comprehended in other titles). In the conceptualization of the damage, it is usually considered the destruction, disablement, the deterioration or the harming of one thing. The subjective element of the crime of damages is the malice, without being demanded any specificity and fit in its forms of commission, the malice of second degree and the eventual malice (Spanish Supreme Court´s sentences 97/2004, of 27 January; 722/95, of 3 June and 30/01, of 17 January). There exist damages, though the guilty does not directly seek the causation of the damages (Spanish Supreme Court´s sentence 378/2004 of 27 January). The object of the action is always a thing and the result is, as we have pointed out, the destruction, equivalent to the total loss of its value; the disablement, which supposes the disappearing of its qualities and utilities; the deterioration, which supposes the loss of its functionality; or the harm of the own thing, which consists in the partial destruction, a curtailment of the integrity, or a loss of the value of the thing. Being a patrimonial crime, the result should comprehend its economic assessment duly assessed during the trial.
THIRD.- Analyzed the typicity from the typical criterion of interpretation. From a literal interpretation of the terms of the typicity of the crime of damages it comprehends the behavior of destruction, of deterioration, the disablement and the harming for, according to the dictionary of the Spanish language, to damage “supposes to diminish something, removing from it a part, to shorten it, reduce it; to deteriorate and to take the shine off something, removing part of the assignment or shine it has before”. On the other hand, to deteriorate is equivalent to “damage, harm, to put in an inferior condition something or worsen, degenerate”. From these definitions results that there exist ambits in which, not produced a destruction or a physical diminishing of the material object, it is produced, however, a damage by deteriorating it, given the fact that it is produced a relevant alteration in its external appearance. Therefore, from a literal interpretation of the precept the proven behavior (to paint with a paint bucket of black paint the door and façade of the victim´s home) causes a damage to the good whose reparation demands an act for returning it to its previous state, which is economically assessable.
From a logic interpretation, the action of painting the façade, and the door, of a house which produce a damage in the good that receives it, is subsumed in the crime of damage which requires an economic disbursement for its reparation. The good has been damaged in its physical, aesthetic and functional shape. On the other hand, with difficulty could be affirmed that the door and façade “smeared” has been not damaged and deteriorated, if it is necessary a reparation financially assessed for its recuperation to the state in which the owner had it.
From an interpretation derived from the legislative evolution of the typicity of the crime and the inclusion of the paintings in the crime of damages, has to be taken into account that the penal legislator, when enacted the Code of 1995, decided to distinguish the crime of damages from the spoiling of things (art. 626 CP). On the one hand, the former, contemplates the damaging results which imply a loss of the substance, on the other hand, the latter the spoiling, included the acts of spoiling because them disfigure the good, without physically damaging it, or if it made it, it was made in a way susceptible of being repaired, without affecting the substance, not producing a damage.
The mere spoiling, which does not produce damage because was easily repairable, was not subsumable in the damages of the article 263, but in the spoiling typified in the misdemeanor of the art. 626 derogated by the reform of the Code of 2015. Thereby in the typicity of the damage is included the destruction of the thing, or the total loss of its value, or its disablement (which supposes the disappearance of its qualities or utilities), and the spoiling of the own thing (which consists in the partial destruction, the whole curtailment or the partial loss of its value), leaving outside of this typicity, for which was reserved an original figure in the art. 626, the so-called “spoiling” which in its grammatical meaning is “action of removing beauty, attractive or shine to a thing”, because the action carried out does not affect to the substance of the thing which continue existing as such, though spoiled. Functionally, it continues to fulfill its utility. Thus, if the result supposes the loss of the aesthetic conditions, which are susceptible of being repaired, it found its typical place in the misdemeanor of the article 626 of the Penal Code and now in the punishing administrative ambit of the Citizen Security Act (art. 37). That said, this interpretation according to which the behavior that in 1995 was subsumed in the misdemeanor of the article 626 CP, carry us, to the decriminalization of the behavior for disappearing the typical figure. The spoiling of a good which implies the loss of its value or supposes a necessity of reparation financially assessable has to be interpreted as a crime of damages. The disappearance of the misdemeanor does not imply decriminalization the of the behavior, thus is expressed by the Exposition of Motives of the reform of 2015. We are in presence of two homogeneous figures, in a way that decriminalized the behavior of the article 626 CP, which constituted a special penal precept, contemplating cases in which the basic result only required of cleaning labors, the behavior can fit in the crime of damages if patrimonial damagess result and it will be in function of their amount what will determine the application of the less serious crime or the lesser crime. If when the article 626 CP was into force, the discussion was between the crime of damages and the misdemeanor of spoiling, now the discussion is between the less serious crime and the lesser crime and the administrative infringement of the article 34 of the Citizen Security Act, which has to be solved in accordance with the classic criterion of differentiation of 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.”
Now, let us extract the more important characteristics of the crime of damages of the article 263, with the said by this sentence:
– It is a residual type, applicable to the damages caused not comprehended in other titles of the CP.
– The object of the crime is a movable or non-movable thing, material or financially assessable, susceptible of deterioration or destruction and of exercise of the propriety.
– The typical behavior or objective element of the basic type is the causation of damages in the alien property, through its destruction, deterioration or disablement damaging the good´s substance.
– Other means of commission are possible, though some of them are the object of a special aggravation.
– The shape of the type oriented to the prohibition of the result, makes possible the commission by omission.
– The result is produced by the destruction, deterioration or spoiling, being possible any form of attempt.
– Being a patrimonial crime, the result should comprehend its financial assessment duly assessed in the trial.
– The subjective element of the crime of damages is the malice, without being demandable any specificity and fit in its ways of commission, the malice of second degree and the eventual malice.
With these eight points, we already have the main characteristics of the crime of damages. But the sentence tells us more important things which should be stressed, since in the practice they have generated controversy between the legal qualification of the fact by the ruling court or judge and the defense of the accused. We are referring to the important milestone which supposed the disappearance of the distinction between crimes and misdemeanors by the CP, thanks to its reform through the Organic Law 1/2015. Until that moment our CP distinguished two cases when it typified damages upon alien property, those which affected to the substance of the thing were qualified as crimes, while those which were merely aesthetic were misdemeanors. With the disappearance of the misdemeanors, we see clear examples in our jurisprudence of defenses which have tried to justify the non-typicity of the behaviors of their defended arguing that the mere aesthetic damages, those which only suppose mere labors of cleaning, were decriminalized with the reform of the CP by the LO 1/2015. However, nothing further from the reality, from which we can observe in the quoted Spanish Supreme Court´s sentence 333/2021, the damages which before were considered misdemeanors have passed to be regarded as a crime of damages fitting in the article 263, always that, these have enough entity, leaving outside the ambit of the penal law and but within the administrative ambit, those which for insignificant do not deserve the penal reproach. Evidently, the entity of the damages is measured by their economic assessment, for example, in the own article 263, is distinguished the less serios crime from the lesser crime through a threshold of 400 euros in the assessment of the damages caused, but this is something, which the legislator has not made for distinguishing the lesser crimes from the administrative infringement of the article 37 of the Citizen Security Act, thus, in reality, the decriminalization of the facts has been left in the hands of the ruling courts or judges, when they apply the principles of proportionality and ultima ratio.
As an example, we can mention the Spanish Provincial Court of San Sebastian´s sentence number 7/2023: “The costs of the tasks of reparation reach the 2.076, 01 Euros more VAT, we can break them down as follows: 841,60 euros for the cleaning works (550,80 in materials and 290,80 in labor); and 1.234,41 euros for the repainting works (484,41 euros in materials and 750 in labor, needing 8 hours for the labors of sanding, 1 hour for eliminating the dust sanded, 8 for applying two layers of paint and eight more applying two layers of varnish). The reposition to the former state of the goods cannot be understood as simple or slight cleaning, nor did them consist them in labors of scarce importance. It is not a mere spoiling of the coach of the train for its little importance or for having needed for it repair simple labor of cleaning – the big size of the paints carried out by the accused, whose elimination requires the use of products highly corrosive which degrade the surface- on the contrary, the action of the accused has supposed a considerable spoiling of the train coach and its return to the former situation is financially assessable demanding to repair the damaged elements and paint again, thereby the facts should be considered a crime of damages penally punishable.
For the existence of a crime of damages, it is not necessary that the damaged things definitely lose their attitude for fulfilling the end for which they were used, nor a total or partial destruction of it, being enough a spoiling or alteration with respect to its former state.”
Another question we are obliged to solve, are the concepts which fit in the assessment of the damages for distinguishing the less serious crime from the lesser crime. According to the Spanish Supreme Court, the damages should be assessed taking as reference their price in the market more the VAT, being excluded the costs associated with the labor of the worker, included its VAT, and his travelling expenses. The Spanish Provincial Court of Guadalajara´s sentence number 344/2023: “Firstly, it is necessary to determine the concepts which should be included in the assessment of the damage for qualifying the punishable fact, and this attending to the principle of legality. This is essential for qualifying the facts as less serios crime or lesser crime since it depends on whether the value of the goods exceed or not the 400 euros, the amount fixed by the legislator for such distinction.
The Spanish Supreme Court´s sentence of 25 September 2020, in relation with the qualification of the punishable fact of damages, points out that the sentence number 301/1997, of 11 March, pointed out that the assessment is determined by the price of the materials in the market more the VAT, but their use by a technician including his travelling expenses and the price of his working hours are not considered damage with regard the thing in itself, but the patrimonial damage of the owner…
Such doctrine complies with the concept of damage which the Spanish Penal Code contemplates as destruction or spoiling of the alien thing regardless of the patrimonial damage which it entails.
In this way the regulation of the damages which the CP contains punishes this crime attending to the value of the thing damaged and not according the patrimonial damage caused, with the exception of the damages caused to computer programs, data or systems.
Consequently, excluded from the assessment of the damage the amount of the labor, it is evident that the VAT derived from this concept should be also excluded.”
With what we have seen until now, we have underlined the characteristics of the basic type of the crime of damages, talked about the problem derived from the elimination of the distinction between crimes and misdemeanors by the current CP, and explained the different concepts which must be included for distinguishing a less serious crime from a lesser crime. But we cannot forget that the article 263 is former by two points, being its second reserved to the aggravating subtypes of this basic type described in its first point. These are six, but we are going to talk only about one of them, because it is usual, above all in cases like the treated above, a train coach which may be regarded a private good, but which pertains a company wholly participated by public funds. In these cases, the Supreme Court has the criterion that, “the basis of the aggravation is not only the public domain, but also the communal or public use of the good on which the action takes place.”
Concretely the Spanish Provincial Court of San Sebastian´s sentence number 174/2023, citing the Spanish Supreme Court´s sentence number 92/2022, of 7 February: “To such effect, we should cite the Spanish Supreme Court´s sentence number 92/2022 of 7 February, in relation with the interpretation of the scenario of the aggravation for the affectation of goods of public or communal use by the damages:
“The sentence object of the present cassation is the dictated by the Provincial Court of Barcelona which confirms the dictated by the Criminal Court, in the referring to the typification of the facts in the arson, and, sustaining the appeal filed by the Public Prosecution, applies the aggravated type of the article 263.2.4 of the Penal Code, for the public or communal nature of the goods upon which is carried out the action of setting fire. The appeal is based in a double argument. Firstly, the appellant sustains that the appealing court has exceeded its function declaring the subsumption in the aggravated type, for the public or communal nature of the good upon which is carried out the typical action, for which is carried out a reassessment of the proof, something exceeds its reviewing function…
It develops a second argument, for error applying the law, in it stresses that the condition of public or communal good, is a normative element whose content is given by the Civil Code, arts. 338 and 344, the Law of Patrimony of the Public Administrations, art. 4, 5, 7 and the Regulation of Assets of Local Entities, art. 2.3, from which does not result that “the good of which we talk is within the goods of public ownership or of public use.” According to the appellant, the interpretation carried out by the court in the appealing sentence, besides exceeding its function, reassessing the proof, infringes the principle of legality carrying out an analogous interpretation in prejudice of the accused in an extensive way, contrary to the demands derived from the principle of legality.
…
In the first motive, as second argument, questions the application of the aggravated type: “which affect to goods of public or communal use or domain”, because does not concur in the conceptualization of these goods the precepts of the Civil Code, articles 338 and 344, and the Law of Patrimony of the Public Administrations and the Regulation of Assets of Local Entities, what implies the infringement of the principle of legality.
The appellant transcribes in part the sentence of the criminal court which ended not applying the aggravated subtype arguing that there exists no precept in the legal order which allows to affirm the condition of public or communal good or of public or communal use of the container that has been proved was attacked. The motion is dismissed. The appeal route used in the challenge must start from the proven fact and this declares that the accused with a lighter proceeded to burn the material placed inside the container destined to gather paper. It refers that he opened the lid of the paper container and using a lighter he set it on fire.” This behavior was carried out by him with other container and on carrying out the same behavior on a third container he was arrested by some security guards who called the police. The account of facts declares that the containers object of the fire, was the property of the company and argues that it is a notorious fact that this is the concessionary in the rendering of an essential public service that the law (art. 86.2 of the law 7/1985, of 2 April, Law regulating the Basis of the Local Government) reserves to the local entities, which may develop by themselves or through administrative concessions.
The basis of the aggravation, we said in the Spanish Supreme Court´s sentence number 983/2016 of 11 January 2017, lies in the damage of the public utility rendered by the locals or in the damages which it causes in the working of the public services to which the goods are subject. About this point our Code has the idea that the damaged good is subject to a public service, stressing that the subjection or bound to such service is without the added demand that such destiny or application is in for its special nature or for having been the object of some type of refurbishment.
In the case of the cassation, it is not discussed the private ownership of the containers. The goods are not of public domain nor are they expressly subject to the public domain through an administrative act which expresses it in this way. According to the specific legislation, Law regulating the Basis of the Local Government, arts. 79 and following, and the law 33/2003 of the Patrimony of the public Administrations, the containers are neither of public domain nor do they appear subject to the public administration. However, the typical scenario of the aggravation is not only the public domain, but also the public or communal use of the good upon which the action is carried out.
The Law 22/2011, of 28 July, of Waste and Polluted Grounds establishes as local competence the gathering, the transport and the management of the domestic waste generated by the homes, stores and services. On the other hand, the Second Transitory Disposition, states the obligation of the Town Halls to establish ordinances before the 31 July 2013, in which should regulate the management of this service on the basis of the its characteristics in each town and of the established in the Law. Lastly, the article 12 states that the rendering of the service of management may be provided directly or through any other form of management established by the local legislation. These activities may be carried out by each local entity independently or through association of various Local Entities. Consequently, the legal order points out the public character of the management of the waste, which may be rendered either directly or indirectly through a regimen of administrative concession, in a way that the rendering of this service is competence of the local administration, being indifferent whether it is rendered by itself or by means of a concessionary.
It is a modality of management of an essential public service whose rendering is the State´s competence, concretely, of the local administration. The penal legislator pointing out the aggravation does not exclusively refer it to the public ownership, either for title deed or affectation, of concrete good, but refers it, as an alternative to the domain, to the public or communal use. This alternative allows to broaden the protection of the goods which are destined to the fulfillment of the public competences, being indifferent whether this development of an essential competence is rendered by a Local Entity or a concessionary, for it is the option of management of a public competence. The relevant is the end of the good, the public or communal use, upon which falls the action aimed at causing the damages. The election of the container is not casual, but chosen to damage the public service which it renders. The norm is clear, concerning the public nature of the service which the burned object renders. The relevant for the concurrence of the aggravated type is not as much the ownership, public or private of the container, which the sentence considered as private ownership of the concessionary, as the subjection to the rendering of the public service of gathering of waste fulfilling in this way a legal provision which qualifies it as an essential competence of the Local Administration.
From the exposed perspective, the container upon which is carried out the action of destruction, whose end is the gathering of waste, in the development of a competence which the legal order attributes to the Administration has the consideration of good of communal or public use and fills the typicity of the article 263.2.4 of the Penal Code.”
In relation with the article 263, for ending with it, we should point out that, between the crime burglary and the crime of damages there exists a concurrence of crimes, usually medial, when the damages caused should be punished with a severer punishment than the burglary. The Spanish Provincial Court of Barcelona´s sentence number 6781/2023 says: “This indicates that both infringements, the crime of burglary and of damages are in a relation of medial concurrence of crimes, because attending to the plan of the authors the explosion and the damaging result were necessary for the commission of the burglary.
The Spanish Supreme Court´s sentence number 137/2019 of 12 March, states that, normally “the damages caused in a burglary, when their origin springs from the employment of the typical force, will be consumed in the crime of burglary, as copunished act, for being results indissolubly united to the employment of the typical element of the force and, therefore, already punished by the punishment of the crime. The question is putted forward in other terms when the damages caused have such relevance that, if they were regarded as crimes, they would be punished with a punishment severer than the corresponding to the crime of burglary. In these cases, it is possible to punish both separately, without prejudice of appreciating a medial concurrence of crimes.
These cases can be equivalent to those others in which the penal type applicable to the crime of damages takes into account other legal goods different from the patrimony, for then cannot be understood that the disvalue associated to the behavior has been already covered by the legislator on establishing the punishment for the crime of burglary.
This happens when the applied is the article 266.1º CP and the reason for its application is centered in the appreciation of the causation of the damages “putting in danger the life or the integrity of the persons”, for this legal good, incorporated to the crime of damages, does not appear contemplated in the crime of burglary.
The Spanish Supreme Court´s sentence number 137/2019 of 12 March, which solved a very similar case to the one here tried, where the cash machine was thrown by the explosion to the street, appreciated danger for the persons who could have been in the proximities and considered that besides the damages consequence of the depredatory act concur danger for the persons, considering that the crime of robbery should converge with the one of aggravated damages in relation of means end. The quoted sentence reasons that, “it is possible to appreciate likewise a relation from means to end between the damages and the burglary, thus being of application to the two crimes of the article 77 CP, which in the wording in force at the time of the facts imposed the corresponding punishment to the severer crime in its superior half. In such cases, the severer infringement would be the crime of burglary, punished with a punishment from two to five years of imprisonment. Being a continuing crime, the punishment would be comprehended between the three years, six months and one day to five years. The aggravating factor of disguise placed the punishment between four years, three months and one day to five years. The new wording of the article 77 regarding the medial concurrence of crimes is not more favorable, due to the fact that the maximum limit of the punishment to be imposed will be greater than five years.”
Therefore, the two facts which we are analyzing are constitutive of two crimes of aggravated burglary of the articles 237, 238.3º, 241,1 and 4 CP in a medial concurrence of crimes with two crimes of damages of the article 266.1 CP.”
– Article 264:
With the article 264 is initiated the part dedicated in this Chapter IX to the known as the crime of computer damages, which this chapter develops in four articles: the mentioned in the article 264, which describes the basic type; the article 264 bis, which punishes who facilitates the commission of any of the above crimes through a computer program or providing a code, and; the article 264 quarter, which establishes the punishments when a legal entity is liable for the above crimes.
Let us follow their order, and start with the article 264, which states that:
“Article 264.
1. Who by any means, without authorization and in a severe way delates, harms, spoils, alters, suppress or makes inaccessible alien computer data, programs or documents, when the result produced is severe, will be punished with the punishment of imprisonment from six months to three years.
2. Will be imposed a punishment of imprisonment from two to five years and fine of ten times the damage occasioned, when in the described behaviors concurs any of the following circumstances:
1ª It was committed within the framework of a criminal organization.
2ª It has occasioned damages of special gravity or affecting a high number of computer systems.
3ª The fact has severely damaged the rendering of essential public services or the provision of goods of first necessity.
4ª The facts have affected the computer system of a critical infrastructure or created a situation of severe danger for the security of the State, of the European Union or a Member State of the European Union.
In this sense, will be considered critical infrastructure an element, system or part of this which is essential for maintaining the vital functions of the society, the health, the security, the economic and social protection and wellbeing of the population whose perturbation or destruction would have a significant impact for not being able to maintain their functions.
5ª The crime has been committed using some of the means to which is referred the article 264 ter.
If the facts were of extreme gravity, would be possible to impose the punishment superior in degree.
3. The punishments established in the above points will be imposed, in their respective cases, in their superior half, when the facts have been committed through the illicit use of personal data pertaining to another person for facilitating the access to the computer system or obtaining the confidence of a third.”
As we are able to see this is an article formed by three points: a first where is described the typical behavior; a second where we find an aggravated subtype, of the basic, for when some circumstances concur, and; a third, which may be regarded as a superaggravated subtype.
Let us start with the typical behavior, which consists in, by any means, without authorization and in a severe way, to delete, harm, spoil, alter, suppress or make inaccessible alien computer data, programs or documents, when the result produced is severe. The first we should emphasize, is the way in which the legislator has left open the ways in which the crime could be committed, not being relevant the means used, always that the typical behavior is produced, for it looks like we are before a crime of result, since the legislator demands that the “the result produced” must besevere, as one of the elements of the typical behavior.
The typical behavior may consist in deleting, damaging, spoiling, suppressing or making inaccessible, thereby the legislator seems to have wanted to include not only all the means of commission, but also all the actions which may affect to the legal good protected, in this case the integrity of the alien computer data, programs or documents, because, effectively, in this case, the object of the crime can only be any of these three elements. And, like with the regular damages, the result must suppose its economic assessment.
With regard to the subjective element, this is the malice, being included the eventual malice.
Concluded the analysis of the basic type of computer damages of the first point of the article 264, we should talk about its aggravated and superaggravated subtype, of its second and third point, respectively. But, in this occasion, we are not going to enter into details, it is enough with knowing that they exist and how much the legislator has increased their punishment in comparison with the established in the basic type.
– Article 264 bis:
In the article 264 bis we find a variety of the crime of computer damages of the article 264, through which is punished who interrupts or hinders the working of a computer system.
The article 264 bis says:
“Article 264 bis.
1. Will be punished with the punishment of imprisonment from six months to three years who, without being authorized and severelly, hinders or interrupt the working of an alien computer system:
a) carrying out some of the behaviors to which is referred the above article;
b) introducing or transmitting data; or
c) destroying, damaging, disabling, eliminating or substituting a computer, telematic or storing of electronic information system.
If the facts have relevantly damaged the regular activity of a company, business or public Administration, will be imposed in its superior half, being able to reach the superior in degree.
2. Will be imposed a punishment of imprisonment from three to eight years and fine from three to ten times the prejudice caused, when in the facts to which is referred the above point has concurred any of the circumstances of the second point of the previous article.
3. The punishments of the previous points will be imposed, in their respective cases, in their superior half, when the facts have been committed through the illicit use of personal data of another person for facilitating the access to the computer system or obtaining the confidence of a third.”
In this case the objective type consists in severelly hindering or interrupting the working of an alien computer system. Besides, unlike the stated by the article 264, the means for committing the crime do not consist in an open list, the article 264 bis mentions the three expressly forbidden: “a) carrying out some of the behaviors to which is referred the above article;
b) introducing or transmitting data; or c) destroying, damaging, disabling, eliminating or substituting a computer, telematic or storing of electronic information system.”
We are again before a malicious crime, being enough with knowing the active subject the behavior which may cause some of the damages of the objective type, what makes possible its commission by eventual malice.
On the other hand, in the second point of the article 264 bis we find an aggravated subtype for when in the commission behavior concurs some of the circumstances included in the second point of the article 264.
Lastly, the third point of the article 264 bis imposes the punishments contained in the previous two points in their superior half, “when the facts have been committed through the illicit use of personal data of another person for facilitating the access to the computer system or obtaining the confidence of a third.”
– Article 264 ter:
The article 264 ter says:
“Article 264 ter.
Will be punished with a punishment of imprisonment from six months to two years or fine from three to eighteen months who, without being duly authorized, produces, acquires for its own use, imports or, by any means, facilitates a third, with the intention of facilitating the commission of some of the crimes to which are referred the previous two articles:
a) a computer program, mainly conceived or adapted for committing some of the crimes to which are referred the previous two points; or
b) computer´s code, an access code or similar data which allows the access to the whole or a part of a computer system.”
In my case, the first that I have felt after reading the article 264, is the so-called “Déjà vu”, for there is an article in the CP which is almost the same, the article 197 ter, but for the crime of revealing of secrets.
After this little detail, let us see in which consists the typical behavior. This consists in producing, acquiring for its use, importing or, by any other means, facilitating to thirds a computer program, or code, with the intention of committing some of the crimes of the article 264 or the article 264 bis.
It seems that we are before a crime of mere activity, for it is not demanded in the type the causation of a harm.
On the other hand, concerning the subjective type, it is clear that we are before a malicious crime, in other words, the active subject must want and know that with his behavior the objective elements of the type are being fulfilled. Furthermore, it is possible its commission by eventual malice, when the active subject represents to itself the typical result as probable, but in spite of everything he decides to act.
– Article 264 quater:
The article 264 quater fulfils the said by the article 31 bis, the legal entities will be only liable for those crimes which expressly establish their liability.
But there is something which attract our attention, a detail, the article 264 quater, as article which pertains to the section of the computer damages, only makes liable the legal entities of these damages, computer damages, leaving aside the regular damages of the article 263. I am sure that the legislator has taken into account this detail, giving importance to the criminal potential of the legal entities when we talk about computer crimes, for their capacity for accumulating talent and means which favor their commission.
The article 264 quater says:
“Article 264 quater.
Article 264 quater.
When according to the established in the article 31 bis a legal entity is liable of the crimes comprehended in the previous three articles, will be imposed the following three punishments:
a) Fine from two to five years or from five to twelve times the value of the damages caused, if results a greater quantity, when they are crimes punished with a punishment of imprisonment of more than three years.
b) Fine from one to three years or from three to eight times the value of the damages caused, if results an amount greater, in the rest of the cases.
Attending to the rules established in the article 66 bis, the judges and courts will be able to impose too the punishments established from the letters b) to g) of the point 7 of the article 33.”
– Article 265:
The article 265 exclusively refers to the damages which may be caused to goods or materials pertaining to the army or the police, it is increased the punishment the punishment with regard to basic crime of damages and the crime of computer damages, but in exchange of this, it is established a threshold for considering the facts as a crime, the damages caused should exceed the one thousand euros.
Remember what we said with regard to the assessment of the damages in the article 263, these include the materials more the VAT, being excluded the price per hour of the technician and its VAT, and its travelling expenses.
The article 265 says:
“Article 265.
Who destroys, severely damages, or disables for the service, even temporally, works, military facilities or establishments, warships, military planes, military means of transport or transmission, war materials, supplies or other means or resources subject to the services of the army or police, will be punished with the punishment of imprisonment from two to four years if the damage caused exceeds the one thousand euros.”
In this case the typical behavior consists in destroying, severely harming or disabling for the service, even temporally, works, military facilities or establishments, warships, military planes, military means of transport or transmission, war materials, supplies or other means or resources subject to the services of the army or police. Therefore, we are before a crime of result, since it is demanded for the consummation of the result.
On the other hand, the subjective type requires the existence of malice, even in its eventual modality.
– Article 266:
“Article 266.
1. Will be punished with the punishment of imprisonment from one to three years who commits the damages established in the point 1 of the article 263 through fire, or provoking explosions, or using any other means of similar destructive power or which generates a relevant risk of explosion or the causation of other damages of special gravity, or putting into risk the life or integrity of the persons.
2. Will be punished with the punishment of imprisonment from three to five years or fine from twelve to twenty-four months who commits the damages established in the second point of the article 263, in any of the circumstances mentioned in the previous point.
3. Will be punished with the punishment of imprisonment from four to eight years who commits the damages established in the articles 265, 323 and 560, in any of the circumstances mentioned in the first point of the present article.
4. In any of the cases established in the previous points, when the damages have been committed concurring the provocation of explosions or the use of other means of similar destructive power and, besides, was putted into risk the life or integrity of the persons, the punishment will be imposed in its superior half.
In the case of fire will be of application the established in the article 351.”
As we can observe, the article 266 is formed by four points, but for the first three the commissive means are the same, fire, or provoking explosions, or using any other means of similar destructive power or which generates a relevant risk of explosion or the causation of other damages of special gravity, or putting into risk the life or the integrity of the persons. The difference between these three first points, leaving aside the punishments imposed, is that the first two are referred to the basic crime of damages of the article 263, while the third is referred to damages in materials or goods of military or police use (art. 265 CP), to damages in goods of historic, artistic, scientific, cultural or monumental value, or in archeological sites, terrestrial or subaquatic (art. 323 CP), or damages in telecommunications liens or facilities or of postal correspondence (art. 560 CP).
A special mention deserves its fourth point, which imposes the punishments established in the previous points in their superior half, when the damages have been committed concurring the provocation of explosions or the use of other means of similar destructive power and, besides, was putted into risk the life or integrity of the persons.
The Spanish Provincial Court of Barcelona´s sentence number 6781/2023 says: “For the crime of damages of the article 266 CP, in the same way that for the arson of the article 351 CP, “the concurrence of the personal risk which the penal type claims, is understood satisfied from its hypothetical or potential, this is, the arson of the article 351 of the Penal Code does not contemplate the existence of a situation of risk (abstract or concrete), but the suitability of the behavior carried out for generating such risk, even when this is not finally produced (Spanish Supreme Court´s sentences number 1136/09 of 4 November or 1116/09 of 18 November, among others). Said in a different way, on assessing the concurrence of the risk from the suitability of the action, and not from the result finally carried out, for the consummation of the crime which we contemplate results irrelevant if finally, was materialized a risk for the life or integrity of the persons who lives there, or if this risk, in spite of arising, diminished soon after arising the fire, either because the dwellers of the building were evacuated, or because the fire was extinguished or suffocated, even though these circumstances may impulse the diminishing of the punishment in a degree, like the own precept contemplates, precisely attending to the minor entity of the danger caused. And being the risk a data of objective nature, only when it is appreciated the suitability of the fire for generating a personal risk, this is, when it lacks the potential danger for the life or integrity of the persons, either because the incendiary means employed is not suitable for its propagation, or the limited capacity of combustion of the substance used, the facts may derive in the crime of damages of the article 266 of the Penal Code, whose punishment is more adequate to the real gravity of the facts”. (Spanish Supreme Court´s sentences 53/2019 of 5 February; 679/2020 of 11 December; 364 of 8 April).”
Finally, we should explain the relationship between the crime of damages with explosives of the article 266 and the crime of possession of explosives of the article 568. All we depend on the time that the accused was in possession of the explosives, if it was brief, the possession of explosive would not be punishable, on the contrary, if it was prolonged during a long period of time, we are before a concurrence of crimes. The Provincial Court of Barcelona´s sentence number 6781/2023: “The Spanish Supreme Court´s sentence number 137/2019 of 12 March points out that “the relationship between the crime of possession of explosives and the crime of damages cannot be explained, always and in all cases, with the principle of specialty or as phenomenon of criminal progression, as the appealed sentence emphasizes.
This solution would lead to the paradoxical consequence of favoring the criminal which does not limit himself to guard the explosives but, besides, the one who uses them with a destructive end. The disvalue of the behavior described in the article 266.1 of the CP does not exhaust the inherent risk of the previous possession of explosives, punished in the article 568 CP. Besides, no all relation between the crime of risk and the crime of damages has to be solved according to a criterion of criminal progression in which the crime of result displaces the application of the crime of risk. In fact, our penal system does not forget in some cases the fixation of a specific bankruptcy rule which impedes that counterproductive effect (art. 382 CP).
Despite everything, in the jurisprudence are stressed cases in which the crime of possession of explosives of the article 568 CP will not reach typical autonomy, being consumed by the crime of result of damages. These will 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 demand the deflagration of the artefact, being enough the possession with this end, thus the explosion of them may give place to a crime of devastation, art. 346 CP, or of arson, art. 351 CP, infringements more severely punished than the crime of possession of explosives. In these cases, the possession of a substance or explosive device which later is totally used, provoking the corresponding explosion and the consequent damages, then the crime consummated of devastation or arson appears as a progression in the criminal action initiated for the possession of explosives and would come, in this way to constitute the last phase of the criminal progression. In such case -the Spanish Supreme Court´s sentences number 144/2011 of 5 April, 304/2012 of 24 April say- the possession of explosives will be absorbed by the crime of result -devastation or arson- consummated severer. And even are pointed out cases in which the crime of possession of explosives can be subsumed by the crime of result of damages through explosives of the article 266.1 CP, will be cases in which the possession of the explosives was immediately before its utilization for provoking the effect of destruction. And, are imaginable cases in which the risk derived from the possession of the explosives only acquires a brief meaning, and therefore absorbed by the main end of occasioning the devastation.
But these last cases are those in which the possession was brief, instantaneous, ephemeral and without material or potential availability. In these cases, will be applied the crime of damages, but not because it subsumes the crime of possession of explosives, but just because it has not achieved typical dimension. And certainly, although the possession was ephemeral or brief, the crime of risk should be also considered if the active subject had had the material or potential disposal, which doubtless will concur in who places the explosive, buys its components or makes it, for descending to some practical examples.”
– Article 267:
The article 267 changes, in part, how we have shaped the different crimes of damages which we have seen until now. So far, we have said that they are malicious crimes, and it is mostly true, save when they exceed the 80.000 euros and they are a gross imprudence, because in these cases they transform themselves into private crimes, for in these cases the criminal procedure can only be initiated by the report of the offended or of its legal representative, and what is even more important, the pardon of the offended extinguishes the penal action.
The article 267 says:
“Article 267.
The damages caused by gross imprudence in an amount greater than 80.000 euros, will be punished with the punishment of fine from three to nine months, attending to the importance of them.
The infringements to which this article is referred can only be pursuable previous report of the offended or its legal representative. The Public Prosecution can also report the facts when this is a minor, a handicapped person needed of special protection or a helpless person.
In these cases, the pardon of the offended extinguishes the penal action.”
Remember that, there will be gross imprudence, when the active subject omits to fulfill with the more essential norms of behavior imposed by the social customs or a norm.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com