“Of the fires” is entitled the Chapter II, of the Book XVII, of the Book II, of the Spanish Penal Code (CP). It is a Chapter made up of five sections and nine articles, each of them covering a different aspect of the arsons.
Section 1ª Of the fires:
– Article 351:
The article 351 is the first of the articles dedicated to the fires, and besides, probably it is the article more applied by the courts, perhaps this is why it is the first.
The article 351 says:
“Article 351.
Whoever provokes a fire which entails a danger for the life or physical integrity of the persons, shall be punished with the punishment of imprisonment from ten to twenty years.
The Judges and Courts may impose the punishment inferior in degree attending to the minor entity of the danger caused and the rest of the fact´s circumstances.
When the danger for the life or physical integrity of the persons does not concur, the facts shall be punished as damages of the article 266 of this Code.”
After reading it, let us try to comment it. The first thing we realize it that, it is a common crime, in the sense that it can be committed by anyone. We draw this conclusion from the expression “Whoever…”.
The next thing we know is that, the forbidden behavior is to provoke a fire. According to the Dictionary of the Spanish Royal Academy of Language (DRAE), a fire is a “Big fire which destroys what should not be burnt”. Then, what is punished by the penal precept is not any fire, it has to be a big one, destroying, besides, things which have not been conceived to be burnt.
Another of the objective elements required by the precept is that, the provoked fire has to entail “a danger for the life or physical integrity of the persons.” An important motive for various motives, firstly, it informs us about the nature of the crime, it is a crime of potential or hypothetical danger, thereby, it is not punished the concrete endangering of the life or physical integrity of the persons, but the suitability of the situation to cause this danger. And secondly, because when this hypothetical danger does not concur, the facts must be punished as a crime of damages of the article 266, what will affect a lot to the punishment imposed, for in this last case, the damages shall be punished with a punishment of imprisonment from one to three years, and not from ten to twenty years.
Besides, the judges and courts are allowed to impose the punishment inferior in degree depending on the entity of the danger caused and the rest of the circumstances of the fact. According to the Second Chamber of the Spanish Supreme Court (sentences number 116/2009, of 18 November, 616/2008, of 8 October and 560/2009, of 29 May), its application must be expressly reasoned by judges and courts, having an essentially objective scope attending to the concurring circumstances, being necessary to assess: the risk of propagation and the ensuing danger for the life and physical integrity of those living in the house, the means employed to cause the fire, the place where it sprang and the nature of the materials.
Let us now talk about the subjective elements. Not saying anything the precept regarding this, we understand that this is a malicious crime, it implies that the active subject knows the objective elements of the type, and despite this, he decides to execute them. Applied to the case, this means that, the active subject knows that he is going to cause a fire, a big one, which is going to entail a danger to the physical integrity or life of the persons. We cannot reject its commission by eventual malice, which is going to take place when the active subject is conscious of the possibility of causing a big fire, and with it, of endangering the physical integrity and life of persons.
Its commission by grave imprudence is also possible, but applying the article 358. There is grave imprudence when the active subject omits a duty of care imposed by a norm or socially, of such importance that only a grave error could have caused it. The Spanish Supreme Court´s sentence number 5605/2023 says: “Regarding the difference between the grave imprudence and that which is not, the Spanish Supreme Court´s sentence number 1823/2002 stated that, the grave imprudence “…has always required the infringement of the more essential norms of care demandable to determined activity”, and with similar terms the Spanish Supreme Court´s sentence number 537/2005 stated that, “the jurisprudence of this Chamber usually considers grave the imprudence when essentials duties have been infringed which are demandable to the least careful of the subjects.” It has been reiterated that it is rash, quality which referred to the imprudence has been understood as grave, when it supposes “an absolute and total forgetting of the most elemental norms of care and foresight”.
There exists a thin line separating the eventual malice from the conscious guilt, for in both cases, the active subject knows that it is possible to cause with his behavior the result forbidden by the precept. However, we can also distinguish them because in the eventual malice the active subject simply accepts the result, but in the conscious malice the active subject even knowing the possibility of causing the forbidden result by the norm, considers that it is not going to take place due to his skills, means employed, or any other element which allows to control the risk generated. The Spanish Supreme Court´s sentence number 5605/2023 says: “In the eventual malice, the author also knows the probability of causing the harmful result protected by the norm, but he continues without mattering whether it is caused, accepting in any case such result. In the conscious guilt, it is not accepted as probable the hypothetic damage, due to the skills that the active subject thinks that he is employing, or believing that the means are not suitable to produce it, even knowing the risk. In the eventual malice, the active subject acts anyway, accepting the causation of the damage, being conscious of the damage he has created, to which he subjects the victim, and whose control is indifferent to him.”
In order to end with this article, let us read this excerpt from the Spanish Supreme Court´s sentence of 5 February 2019, it is very complete, explaining again all what we have seen until now: “regarding the objective requirements of the penal type, it must be understood that the fire is a compound of incandescent particles or molecules of inflammable matter, product of a chemical reaction of violent oxidation and which should not be identified with the flames, because these are a mere visible manifestation of the fire through the emission of intense light, but not always concurring. Therefore, what the penal type requires is the malicious causation of the combustion and the deterioration of the object through it, with the conscious endangering of the life or the physical integrity of the persons (Spanish Supreme Court 1384/05, of 28 October). In parallel, the concurrence of the personal risk which the penal type requires, is understood satisfied from its hypothetical or potential consideration, this is, the crime of fire of the article 351 of the Penal Code does not contemplates the existence of a situation of risk (concrete or abstract), but the suitability of the behavior carried out for causing this risk, even when it is not finally produced (Spanish Supreme Court´s sentences number 1136/09, of 4 November or 1116/09, of 18 November, among others). To put it differently, on gauging the concurrence of the risk from the suitability of the action, and not from the result finally created, for the consummation of the crime which we contemplate it is irrelevant whether the risk for the life or the integrity of the persons who lived there was materialized, or whether the risk, despite arising, withered shortly after springing the fire, because either the persons dwelling the building were evacuated or the fire was extinguished or suffocated, even when these circumstances may impulse the decrease of the punishment in one degree, like the own precept contemplates, attending the minor entity of the danger caused. And being the risk a data of objective nature, only when it is not appreciated the suitability of the fire for generating a personal danger, this is, when it lacks the potential risk for the life or integrity of the persons, because either the incendiary means employed is unsuitable 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.
With regard to the internal element required by the penal type of the article 351.1 of the Penal Code, it is circumscribed to the purpose of firing a space, knowing that it is created a potential risk for the life or physical integrity of the persons, even when there is no will of causing these personal damages (Spanish Supreme Court´s sentences number 753/2002, 24 April, 823/2014, of 18 November), what this chamber has appreciated in all those cases in which a fire is provoked with capacity of expansion in a building, whenever the active subject knows the existence of other houses, and of persons dwelling them whose lives or physical integrity may be endangered with his behavior (Spanish Supreme Court´s sentences 1515/2002, of 16 September, 2071/2020 of 2 March, among many others). Consequently, the distinguishing element between the crime of damages of the article 266 of the Penal Code and the crime of fire of the article 351 of the Penal Code, being this limited to the cases in which only the harmful aim concurs, lies in the concurrence and perception that the potential devastating action of the fire may compromise, not only the goods which the combustion may reach, but the lives and physical integrity of the persons, without prejudice that, in the latter case, the punitive reproach to the active subject of the crime by be modulated in relation to the degree of risk introduced or of other concurring circumstances like shaping elements of the disvalue of the action and of its result.”
Section 2ª Of the forest fires:
– Article 352:
From the article 352 onwards it is the turn of the Section 2ª concerning the forest fires. The article 352 says:
“Article 352.
Whoever sets fire to mounts or forest mass, shall be punished with the punishments of imprisonment from one to five years and fine from twelve to eighteen months.
If there has been danger for the life or physical integrity of the persons, the fact shall be punished according to the established in the article 351, imposing, in any case, the punishment of fine from twelve to twenty-four months.”
Like always, although it may seem obvious, we must say it. It is a common crime, because it can be committed by anyone, this is what we understood from the use of the expression “Whoever…”.
Subsequently, we find the forbidden behavior, the article 352 punishes whoever “sets fire to mounts or forest masses”. According to the DRAE, “to set fire” means: “to fire something that should not be burnt”. Then, the active subject must set fire to a mount or forest mass. Nevertheless, I would add another requisite, the fire should propagate, because otherwise the behavior should be punished under the article 354, what, on the other hand, implies that the fire should have an important size.
In order to be more precise with our definition of forest fire, we can make use of the Law 43/2003, of 21 November, of Mounts, which in its article 6.k) defines the forest fires as: “the fire which extends itself without control on forest combustible situated in the mount.”
Pay attention to the fact that, the definition of forest fire perfectly fits with how the legislator has distinguished between the article 352 and 354. There is a forest fire punished according the article 352 when the fire propagates itself, or what is the same, when it extends itself without control.
The next thing we should do, is to determine the scope of the terms “mounts and forest masses”. For that we are going to make use again of the Law 43/2003, which in its article 5 define the mounts as:
“Article 5. Concept of mount.
1. For the purposes of this law, it is understood by mount all terrain in which grow forest species of trees, bushes, or herbaceous, either spontaneously or previously sown, which fulfill or may fulfill environmental, protective, producing, cultural, landscape or recreative functions.
The following are considered mount too:
a) The wastelands, rocky outcrops and sandy areas.
b) The constructions or infrastructures aimed at servicing the mount where they are places.
c) The abandoned farming lands which fulfill the conditions determined by the autonomous community and whenever they have acquired unequivocal signs of their forest state.
d) All terrain which, without gathering the previously described characteristics, is assigned to the aim of being reforested or transformed to the forest use, according to the applicable normative.
e) The forest enclaves in farming terrains with the minimum area determined by the autonomous community.
2. Without prejudice of the established in the rest points of this article, the following are not considered mounts:
a) The terrains aimed to the agricultural crop.
b) The urban terrains.
c) The terrains which the autonomous community excludes from the forest and urban legislation.
3. The autonomous communities, according to the characteristics of their territory, may determine the size of the minimum administrative unit which shall be considered mount for the purpose of applying this law.”
But, what is a forest mass? This is a more complicated concept, since we have not been able to find any law defining it. However, the article 6 of the Law 43/2003, of 21 November, of Mounts defines forest as, “all which is relative to the mounts.” If we joint the definition of mount and forest, we could understand that a forest mass is all forest species of trees or bushes which are in the mount. Hence, we conclude that, the term forest mass is a reiteration of the term mount, rather than a new place protected by the CP, since mounts and forest masses are essentially the same.
So far, we have seen the objective elements of the basic type, which is punished with the punishment of imprisonment from one to five years and fine from twelve to eighteen months.
On the other hand, we find the aggravated subtype in the second paragraph of the article 352, which punishes the facts with the punishment of imprisonment established in the article 351, in other words, from ten to twenty years, adding, besides, the punishment of fine from twelve to twenty-four months, when the forest fire has occasioned danger for the life or physical integrity of the persons. Here we should remember what we saw in the article 351, it is a crime of hypothetical or abstract danger, in which it is enough the suitability of the behavior to cause the risk, and therefore, not being necessary, that this danger is materialized in a real risk for the life or physical integrity of the persons, for in those cases, this would be a crime of concrete danger.
Regarding the subjective elements of the type, it is a malicious crime, this implies that the active subject knows the objective elements of the type and, despite this, he decides to execute them, in other words, he provokes a forest fire knowing that it can propagate itself, and in the aggravated subtype, that it even can endanger the life and physical integrity of the persons. We cannot dismiss its commission by eventual malice, n scenario in which the active subject understands as possible the propagation of the forest fire, and in the aggravated subtype, even the endangering of the life and physical integrity of the persons.
With regard to the possibility of punishing the facts when there has been imprudence, it is possible thanks to the article 358, but only when there has been grave imprudence. Remember that, a grave imprudence is the omission of an important duty of care, like in the eventual malice the active subject recognizes the possibility of provoking the result forbidden by the norm, but unlike in the eventual malice, he rejects this possibility altogether, due to his skills or the means employed.
– Article 353:
The article 353 increases the punishments established for the crime of forest fire, but only for its basic type, the one in the first paragraph of the article 352, when the forest fire has not endangered the life or physical integrity of the persons.
The article 353 says:
“Article 353.
1. The facts to which is referred the previous article shall be punished with the punishment of imprisonment from three to six years and fine from eighteen to twenty-four months when the fire reaches a special gravity, attending to the concurrence of some of the following circumstances:
1ª That it affects to an area of considerable importance.
2ª That great or grave erosive effects are derived in the grounds.
3ª That it significantly alters the conditions of animal or vegetal life, or affects some protected natural space.
4ª That the fire affects areas close to inhabited areas or population centers.
5ª That the fire is provoked at a moment in which the weather conditions or of the terrain increase in a relevant way the risk for its propagation.
6ª In any case, when it is occasioned a grave deterioration or destruction of the affected resources.
2. The same punishment shall be imposed when the author acts for obtaining an economic benefit from the effects derived from the fire.”
What happens when the fire has endangered the life or physical integrity of the persons and besides some of the aggravating circumstances of the article 353 has concurred? In my opinion, the article 351 is going to be still the one applicable, although, the judges and courts should take into account this circumstance on imposing the corresponding punishment within the range allowed by the precept.
– Article 354:
Let us first read this article 354:
“Article 354.
1. Whoever sets fire to mounts or forest masses without its propagation, shall be punished with the punishment of imprisonment from six months to one year and fine from six to twelve months.
2. The behavior established in the previous point shall be exempted of punishment if the fire is not propagated by the willful and positive action of its author.”
When you read the article 354 CP soon you think in the article 16 CP. What I see is an attempted crime of forest fire of the article 352, remember how I added that one of the objective elements of the crime of forest fire should be the propagation of the fire, mainly because of the existence of this article 354 CP. This theory is strengthened eve more, if we take into account that the attempted crime is punished by the article 62 with the inferior punishment in one or two degrees, in the case of the article 352 the inferior punishment in degree of the basic type, imprisonment from one to five years, would be imprisonment from six months to one year minus one day, what is almost exactly the punishment imposed by the first point of the article 354. Thus, we can consider that the article 354 is expressly punishing a scenario which is already punished by the article 16, although in general terms.
Furthermore, the second point of the article 354 exempts from penal liability the author who avoids the propagation of the fire by his willful and positive action, what also coincides with the article 16.
Does it mean that, we cannot punish the facts established in the basic type of the article 352 as attempted crime? No, it means that the facts should be punished according the article 354 when its objective and subjective elements are fulfilled.
By the way, we have said nothing yet, but it is a malicious crime. If like in repeated occasions we have said, there exists malice when the active subject knows the objective elements of the type and, despite this knowledge, he decided to execute them, we can say that, the active subject does not wish to set fire to mounts and forest masses and propagate the fire, he simply wants a “little fire”, with that we can consider fulfilled the objective elements of the type. However, this thesis would contradict our previous interpretation of the article 354 as an express punishment of the attempted crime of forest fire of the article 252, because in these cases the active subject should want the propagation of the fire, but this does not happen due to alien circumstances to his will. Having said the above, in reality, the facts should be punished as an attempted crime of the article 352 when its author sets fire to mounts and forest masses with the intention of propagating this fire, and as crime of the article 354, when the author´s will was to set fire to mounts or forest masses without the propagation of the fire. The distinction is important, because in the former case the punishment can reach the punishment established for the crime of the article 352 diminished in two degrees (art. 62 CP), what would suppose a punishment less severe than the established in the article 354.
The facts can be punished too, when instead of malice there has been grave imprudence, although applying the article 358.
– Article 355:
With the article 355 the legislator has tried to avoid the obtention of an economic benefit from a forest fire. An especially relevant case, when the crime punished is a crime of forest fire where there has been malice, in other words, created on purpose.
The article 355 says:
“Article 355.
In all the cases established in this section, the Judges and Courts that the classification of the ground in the areas affected by the forest fire cannot be modified in up to thirty years. Likewise, they can agree the limitation or suppression of the usages which the area affected by the fire had, as well as the administrative intervention of the burnt wood coming from the fire.”
The article 355 gives the option to Judges and Court of agreeing the impossibility of changing the classification of the ground affected by the forest fire in up to thirty years. This measure cannot be considered a punishment, since it is not included among the punishments of the article 33 CP, nor as part of the civil liability derived from the crime, because the damages derived from the crime are not being repaired (art. 109 CP). It is just an accessory consequence of the crime, which can be agreed in cases of forest fires, even when they have been caused by grave imprudence, since this scenario is not excluded by the precept.
This accessory consequence of the crime has been shaped as a faculty, which is going to depend on the criteria of judges and courts, therefore, it is possible that, although the precept does not expressly exclude it, they will avoid its application in the cases of grave imprudence, because there is no profit motive.
Pay attention to the fact that, the forbidden is a change in the classification of the ground, which are basically divided between building land and non-building land. This makes clear the legislator´s intention of impeding an unjust enrichment from setting fire to mounts or forest masses.
In any case, any of these measures should be agreed in the sentence which ends the criminal procedure.
Section 3ª. Of the forest fires:
– Article 356:
The article 356 says:
“Article 356.
Whoever sets fire to non-forest areas with vegetation gravelly damaging the natural environment, shall be punished with the punishment of imprisonment from six months to two years and fine from six to twenty-four months.”
Let us now try to analyze it. The first is always the first, and in this case, it is to say that it is a common crime, since it can be committed by anyone.
Subsequently, we find the forbidden behavior, which consists in setting fire to “non-forest areas with vegetation gravelly damaging the natural environment.” Non-forest areas with vegetation are those which are not related with the mount, remember the article 5 of the Law 43/2003, of 21 November, of Mounts where is defined what is a mount. Therefore, they have to be areas with vegetation which cannot be included in the definition of mount of this article 5. Besides, it is also required the causation of a grave damage to the natural environment, which looks like a result, thus, we can consider this crime as a crime of result. What is not clear, is what we should understand by natural environment, according to the Wikipedia “The natural environment comprehends all the living beings and non-living beings which naturally exist in the Earth. The natural environment can be the opposite of “built environment” or “artificial environment”. Besides, the damages caused have to be grave, this implies that not all damages to non-forest areas with vegetation can be punished by the article 356, only those which can be considered as grave.
What happens if besides being gravelly damaged the natural environment, the fire is a danger for the life or physical integrity of the persons? These cases should be punished according to the article 351, like the forest fires of the article 352.
Beyond that, this is a malicious crime which should be possible to commit by eventual malice, and is possible to commit by grave imprudence according to the article 358.
Section 4ª Of the setting fire to your own property.
– Article 357:
The setting fire to your own property can be also a crime, when the requisites of the article 357 are met. The article 357 says.
“Article 357.
Whoever sets fire to his own property shall be punished with the punishment of imprisonment from one to four years if it has the aim of defrauding or damaging third parties, has caused fraud or damage, there exists risk of propagation to building, trees or someone else´s land or has gravelly damaged the conditions of wild life, the woods or the natural spaces.”
Let us now analyze it. In this case, this is a special own crime, because it cannot be committed by anyone, the author has to be the owner of the thing burnt.
The behavior punished is the setting fire to your own property, but this behavior is only illicit when other circumstances concur.
The first is that, the setting fire to your own property has the purpose of defrauding or damaging third parties. When this circumstance concurs, this is going to be a cut crime of result, because it is a crime of anticipated consummation, this describes acts which have been already carried out, but which need a specific subjective element additional to the malice which consists in the intention of obtaining a result, which is not necessary for the consummation of the crime. In other words, besides the setting fire to his own property and the malice, it is required that the active subject has to have the intention of defrauding or damaging third parties.
The Chapter VI, of the Title XIII, of the Book II, of the CP, is entitled “Of the Frauds”. I understand that the article 357 is referring to these frauds for fulfilling this objective element of the type, not to any other fraud which cannot be considered a crime. This Chapter VI is formed by four sections, each regulating a different crime, of the four crimes the one which better fits in the article 357 is the crime of swindle. The article 248 says:
“Article 248:
Commit swindle those who, with profit motive, use enough deception for producing error in another, inducing him to carry out an act of disposal to one’s own or another’s detriment.”
I am sure that all of us are thinking in the same, the swindler who sets fire to his car in order to obtain the money of its insurance, or the swindler who sets fire to his house for swindling the insurance. I think that the legislator was thinking in these cases when he included this behavior in the CP.
The question may be now, what is the relation between the crime of setting fire to your own property and the crime of swindle? In my opinion there is a medial concurrence of crimes (art. 77 C), for it seems clear that the fire is going to be the necessary means to commit the fraud.
The second is that, either fraud or damage has been caused. In these cases, this crime has to be considered a crime of result, because without fraud or damage there is no crime. It can be understood as the consummation of the criminal progression of the previous cut crime of result, thereby, its inclusion in the CP has a clarifying purpose rather than practice one, since in any case, this scenario is already covered by the previous one.
The third is that, there exists a risk of propagation to building, trees or someone else´s land. In these cases, this crime should be classified as crime of hypothetical or concrete danger, this means that the behavior should be suitable to produce the forbidden risk, but it is not necessary the materialization of this risk.
And the fourth is that, the conditions of the wild life, woods or natural spaces have been gravelly damaged. This is going to be again a crime of result, since it is necessary this grave damage to the conditions of wild life, woods or natural spaces for understanding consummated the crime.
Summing up, we can conclude that the setting fire to your own property is going to be a crime only when any of these four circumstances concur, depending on them too, the nature of the crime.
With regard to the subjective elements of the type, it is again a malicious crime, which can be also committed by grave imprudence, but according to the article 358.
Section 5ª Common dispositions:
– Article 358:
This is the article so many times already mentioned in this writing, by which the facts punished by the previous articles can be punished too in the cases of grave imprudence.
The article 358 says:
“Article 358:
Whoever by grave imprudence provokes some of the crimes of fire punished by the previous sections, shall be punished with the punishment inferior in degree, to the respectively established for each case.”
We have repeated many times what is a grave imprudence, but we have not use yet a good excerpt from a good sentence explaining it. Let us see this one from the Spanish Supreme Court´s sentence number 5605/2023: “4.2.- In the current case, we have to depart from the fact that the article 368 CP punishes who by grave imprudence provokes some of the crimes of fire punished by the previous Sections.
In the sentence of the Plenary Session of this Chamber 317/2001, of 15 April, we said that in the Spanish Supreme Court´s sentence number 1089/2009, of 27 October, to which we already referred, among others in the Spanish Supreme Court´s sentence number 552/2018, of 14 November, it was said that the imprudent crime “…it appears structurally shaped, on the one hand, by the infringement of a internal duty of care (subjective duty of care or duty of foresight), which obliges to notice the presence of a cognizable duty and its gravity; and, on the other hand, the infringement of a external duty of care which obliges to externally behave in a way which does not generate not allowed risks, or, in their case, to act in a way in which the risks not allowed created by third parties or by alien factors are controlled or neutralized, whenever the duty of guarantor of this obliges him to control or neutralize the illicit risk unleashed. To these requisites we have to add, in the active behaviors, the causal link between the imprudent action and the result (natural or ontological link), and the objective imputation of the result to the imprudent behavior, in a way that the not allowed risk generated by this is the materialized in the result (normative or axiological link).
With regard to the difference between the grave imprudence and that which is not, the Spanish Supreme Court´s sentence number said that, the grave imprudence “…has always wanted the infringement of the more essential cautions required in a determined activity”, and with similar terms was remembered in the Spanish Supreme Court´s sentence number 537/2005, that “the jurisprudence of this chamber usually considers as grave the imprudence when essential duties have been infringed which can be demanded from the least cautious of the subjects.” It has been reiterated the is rash, quality which referred to the imprudence has been assimilated to the grave, when it supposes “a total and absolute forgetting of the more essential duties of care and foresight.”
With other words, the Spanish Supreme Court´s sentence number 1089/2009, aforementioned, was argued that “…the gravity of the imprudence is determined, from an objective or external perspective, in accordance with the importance of the infringement of the objective duty of care which the author commits, importance which is directly linked to the degree of risk not allowed generated by the active behavior of the accused with respect to the legal good protected by the penal norm, or, when applicable, the degree of risk not controlled when he has the duty of neutralizing the risks which affect to the legal good due to the behavior of third persons or merely casual circumstances.
The level of risk allowed is determined, by the degree of social utility of the behavior developed by the author (the greater the social utility the greater the levels of risk allowed). Lastly, the importance of the legal good threatened by the imprudent behavior has to be taken into account too: the greater the value of the legal good threatened, the lesser the level of risk allowed and the greater the requirements of the duty of care. On the other hand, and from a subjective perspective or internal (relative to the subjective duty of care), the gravity of the imprudence is measured by the degree of the foreseeability or of cognoscibility of the situation of risk, attending for this to the circumstances of the concrete case. In a way that, the greater the foreseeability or cognoscibility, the greater it is going to be the level of demand of the subjective duty of care and the graver it is going to be its infringement.”
– Article 358 bis:
The article 358 bis says:
“Article 358 bis:
The established from the article 338 to 340 shall be applicable to the crimes regulated in this Chapter.”
The Title XVI, of the crimes relative to the urban development, the protection of the historic patrimony and the environment, has a Chapter V with three common dispositions, the art. 338, 339 and 340.
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.”
In the article 339 is established another element of the civil liability derived from the crime, for the article 109 CP requires to repair the damages derived from it. This is, what has been called the “restitutio in integrum”.
With regard to the preventive measures of the same precept, they have to be adopted as soon as there are evidences of the commission of the crime (fumus boni iuris) and risks to the restitution of the object of the crime to its original state if it is waited for firm sentence (periculum in mora). These preventive measures can be ordered in any part of the procedure.
– Article 340:
The article 340 says:
“Article 340.
If the culprit of any of the facts punished in this Title willingly repair the damage caused, the Judges and Courts shall impose him the punishment inferior in degree of the respectively established.”
The CP rewards those who before the sentence ending the penal procedure, have repaired the damage caused.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com