“Of the homicide and its forms” is how is entitled, the Title I of the Book II of the Spanish Penal Code (CP). The CP is divided into two parts. On the one hand, in the firs part we find the Preliminary Title, in it we find gathered principles as important as the principle of legality, the principle of non-retroactivity of the penal unfavourable norms, or the principle of guilt. On the other hand, the second part is divided into two books, in the Book I we find all the general aspects which surround the imposition of a punishment for any of the crimes typified in the CP, for instance, in the article 61 and following we find the rules applicable when is imposed a punishment, or in the article 109 and following is regulated the civil liability derived from a crime, or in the article 127 and following the seizure of the goods related with a crime, and in the Book II is where we find all the acts and omissions typified as willful or imprudent crimes by the CP.
This Title I of the Book II of the CP entitled “Of the homicide and its forms” has six articles, that are the articles we will comment through the following lines. Nevertheless, the points which divide this writing do not coincide with such articles, for the sake of clarity, these points will have as object each of the form of homicide regulated, the homicide, the murder, the reckless homicide and the induction and cooperation to the suicide.
– The homicide:
The crime of homicide is regulated in the article 138 of the CP, as the more basic way of punishing the dead of a person for the willful acts of another.
The article 138 of the CP says: “1. Who kills other will be punished, as convicted offender of homicide, with the punishment of imprisonment from ten to fifteen years.
- The facts will be punished with the punishment superior in degree in the following cases:
a) When it concurs in its commission any of the circumstances of the first point of the article 140, or
b) When the facts are also regarded as a crime of attack of the article 550.”
As we have already said, for being able to appreciate the crime of homicide it is demanded the existence of malice, in any of its modalities. Therefore, by virtue of the article 138 of the CP, there will be as punishable the acts of who willfully acts with the intention of causing the dead of a person and for that uses the necessary means to achieve its goal, as the acts of who do not seek such result, but knows that with its behavior is putting at risk a legal good protected, the life, for its losing by a third party is represented to it as a probable consequence of its acts. In other words, the article 138 of the CP punishes both, the homicide for direct malice and the so-called eventual malice. In this example from the STS 4348/2022, is expressed with other words, what we have just seen: «Likewise it is necessary to stress -as we said in the SSTS. 210/2007 of 15.3, 172/2008 of 30.4, 487/2008 of 17.7- that the subjective element of the crime of homicide is not only the “animus necandi” or specific intention of causing the death of a person, but the “homicidal malice”, which has two modalities: the direct malice or of first degree formed by the desire and the will of the agent to kill, to which concrete objective is aimed the aggressive action, and the eventual malice that arises when the active subject represents to itself as probable the eventuality that the action cause the death of the passive subject, although this result is not desired and despite of this, it persists in such action which is the cause of the produced result (STS. 8.3.2004).”
It is precisely the existence of this malice, direct or eventual, during the commission of the crime, the more difficult to prove in the trial, for being able to classify the facts as a crime of attempted homicide and not of injuries, when determined aggression does not entail the death. For the intention with which was carried out such aggression, pertains to the private sphere of the aggressor, and only can be inferred from external facts or circumstances in which it can be manifested, always that, the author of the facts does not confess that its intention was no other than to kill. Of enumerating, although without being a closed list, these circumstances or facts, from which can be inferred that an aggression which has not produced the result of death, must be classify as a crime of homicide, have been in charge the Spanish Courts through their abundant jurisprudence. For example, the homicidal malice will be evidenced by the kind of weapon used during the aggression, or for the part of the body to which was directed the attack with it, or for the manifestations during or before the aggression, or for the health of the previous relation between aggressor and assaulted. Let us see it with a concrete example, by means of the STSJ GAL 7520/2022: “In what is referred to the concurrence of the animus necandi, in our sentence of 11/2/2020 (deponent Sr. Pía Iglesias) we pointed out the following: -The TS reasons in its sentence of 25/06/2005 “As is remembered in our Sentences of 17 May 2005 and 416/2001 of 14 March, the concurrence or not, of the will to kill in the active subject is a question frequently formulated before the Courts when are tried aggressions with the result of determined types of injuries, due to the fact that, having not being produced the result of death, the legal classification of the facts only depends on the will with which the aggressor had acted: if it wanted to kill, we would be before an attempted homicide; if it wanted to injure, only could be appreciated, in its case, a crime of injuries. It is not always easy to the court or judge to pronounce itself about this question, since the intention with which a person acts belongs to its intimacy and we can only pronounce ourselves regarding this (save the explicit and true confession of the own subject) on the basis of analyzing and pondering the more significant external aspects of its behavior through which is possible to infer what could have been the true will of the agent acting the way it did. In the task of finding out what could have been the intention of the aggressor, in the cases of injuries caused to determined person, either the doctrine and the jurisprudence have emphasized some data and elements of judgment, of objective character, which allow to track the true will of the agent, following the teachings of the experience and the rules of the logic, according to the human criteria. Usually are cited, as data more relevant to the goal indicated, among others: a) the personality of the aggressor and the assaulted; b) the possible previous relations between both; c) the incidents which existed previously to the commission of the crime (discussions, the motives of them, provocations, threatening phrases, gravity and reiteration of them, etc.), during its execution (the taking advantage of some distraction or carelessness of the victim, or direct attack and clash, face to face) and at the end of it; d) the subsequent behavior of the aggressor; e) kind and characteristics of the weapon used and suitability of it for killing or injuring; f) part of the body to which was aimed the aggression, with appreciation of its greater or lesser vulnerability and greater or lesser vital character; g) reiteration, in its case, of the aggressive acts; etc. …(v., ad exemplum, the Sentences of 6 October of 1998 and 30 January 1999)…””.
Notwithstanding the clarity with which our jurisprudence has expressed itself, there exist more complex cases in which will not be as easy as before to determine the concurrence of malice in the commission of a crime. We are referring to the cases in which, the death is produced in the context of an aggression carried out by a group of persons. In the article 28 of the CP are mentioned those who are liable of a fact as authors, broadly speaking we can differentiate between those who have the functional domain of the facts and those who do not have it, but participate in the crime as necessary cooperators or as instigators. In the cases in which a crime is committed by a group of persons and not by only one person, there will be coauthorship when all the persons who participate in the crime have this functional domain of the fact, whereas the necessary cooperator provides an essential element without which the crime could not have been committed knowing what is the goal of its contribution, in other words, with malice, and the instigator willingly and sufficiently induces to the commission of a crime. On the other hand, the accomplices, although criminally liable too, by the contrary, provide a secondary contribution which favor the commission of the crime. According to the above, author of a crime will be, all those who, executing a plan previously determined or spontaneously during the execution of the aggression, divide their roles in order to execute an homicide, always that each of them have the functional domain upon the fact, although without being necessary that all of them execute the acts which provoke the death, for instance, one cornering and the other stabbing. On the contrary, those who do not have this functional domain of the fact, nor have made an essential contribution, nor have induced to the commission of the crime, cannot be regarded as authors, despite having been part of the group which made the aggression. In order to clarify in which cases we are in this last scenario, the courts have attended to these external circumstances which reveal whether this homicidal malice exist or not, as distinguishing between those who carried weapons with the capacity of causing the death and those who did not, or distinguishing between those who had made and essential contribution and those who had not. Like before, let us see an example of what we have said about this matter with the STSJ CLM 2937/2022: “About this question -besides the doctrinal quotation of the appealed sentence- we can recall the criteria gathered in the Sentence of the Supreme Court nº 78/2018 of 14 February 2018, Rec. 981/2017, where is pointed out that “…when they are aggressions in group of an important number of subjects who organize and plan themselves to execute an attack of this kind, knowing that they are using homicidal tools like they are the cutting weapons used in this case, it is important to point out that this Chamber of cassation has established that it is not necessary that each author execute by its own the material acts integrated in the kernel of the type. In consequence, through the development of the “factum sceneries” and of the joint domain of the fact is possible to integrate in the coauthorship, as joint execution of the fact, contributions which are not part of the kernel of the type, but which however decisively contribute to its execution. And also, has been repeatedly affirmed by this chamber that the joint decision, subjective element of the authorship, can be appreciated in a previous deliberation carried out by the authors, with or without express division of roles, or it can be appreciated at the moment of the execution when they are facts in which the homicidal plan arises simultaneously to the action or, in any case, soon after this (adhesive or successive authorship). It can be an agreement, previous or simultaneous, express or tacit ( SSTS 1180/2010, of 22-12 ; 109/2012, of 14-2 ; 575/2012, of 3-7 ; and 729/2012, of 25-9 , among others).
This Chamber has also reiterated (SSTS 1028/2009, of 14-10 ; 338/2010, of 16-4 ; 383/2010, of 5-5 ; 708/2010, of 14-7 ; 1180/2010, of 22-12 ; 109/2012, of 14-2 ; 575/2012, of 3-7 ; 729/2012, of 25-9 ; 602/2016, of 7-7 , among others) that in the joint aggressions it is not necessary that in the sentence is reflected the individual action which was carried out by each of the authors, for each one of the facts executed is a fact of all which belongs to all, generating in the coauthors a joint liability which entails the reciprocal imputation of the different partial contributions.
Likewise, this Court has affirmed that in the actions of stabbing it is not necessary to be regarded as author to make the stab which provoke the death, being enough with cornering the victim while another stabs it ( SSTS 382/2001, of 13-3 ; 852/2016, of 11-11 , and those quoted in them).
Notwithstanding the above, it is also important to specify that not all member of a group of this kind or of a mass of persons which carries out an action of reprisal or vengeance against another hostile group has to be convicted as an author of the homicides which result from an attack of this nature. Here we have to distinguish those who, forming part of the group and the planed attack, have and wield weapons or homicidal tools, an unequivocal sign of the aggression which they are ready to carry out, and those which were not armed and did not execute essential parts of the aggression in group or in mass. Thereby, not always being part of a group or accompanying it in the march entails the conviction as coauthors for the homicides or grave injuries that the group carries out.
The subjects who do not carry homicidal tools and who is not proven that had had an essential contribution or collaboration with a concrete homicidal action could not be convicted as authors of the criminal types against the life, but at most like mere accomplices.
On the other hand, the Sentence of the Supreme Court nº 687/2018 of 20 December 2018, Rec. 2677/2017 is referred to the cases of excesses of some of the members in the execution of the crime, pointing out that, although “the jurisprudence…has affirmed that the member non-material executor of the homicidal act or injuring that envisages and admits in a way more or less implicit that in the “iter” of the illicit act may be reached corporal attacks, is at least situated in the sphere of the eventual malice, being justified both in the ambit of the causality and in the ambit of the guilt its liability in the homicidal action…it is not excluded the character of coauthor in the cases of deviations from of any of the members of the initial plan, always that that deviations occur in the usual frame of the fact committed, in other words, that according to the circumstances of the concrete case, cannot be regarded as unforeseeable by the members ( SSTS 1320/2011, of 9-12 ; 311/2014, of 16-4 ; 563/2015, of 24-9 ); 141/2016, of 25-2 ; 604/2017, of 5-9 ; and 265/2018, of 31-5 , among others). For this reason, in the sentence 1473/2013, of 24 May, summing up the jurisprudence of this Chamber about coauthorship for domain of the fact, is affirmed that when one of the coauthors “exceeds” by its own of the plan agreed, without consenting the rest this excess, this excess cannot be imputed to the latter, because beyond the agreement there is no reciprocal imputation. If it was not understood like this, would be infringed the principle of subjective liability y of guiltiness for the fact. Nevertheless, the authors do respond of the deviations of one of them which are foreseeable (“envisaged” for the scenario of malice) and assumed by the rest, concurring in the behavior of these the elements belonging to the eventual malice.”
So far we have seen, the importance of the existence of homicidal malice, at least in its eventual modality, for classifying a fact as homicide, and how this malice is shared by those who kill within a group or mass of persons. We have not seen yet, what happens in the cases in which have been executed the acts that should provoke the death of a person, but as consequence of the subsequent acts of who has executed them, the result initially sought, the death, is not produced. The attempt of committing a crime generates criminal liability (art. 15 CP), although lessened for application of the rule envisaged in the article 62 of the CP. We have to understand for attempt of crime, when a subject execute all the acts, or part of them, which objectively should give rise to the punishable result, and however this is not produced for alien causes to the will of the author (art. 16.1 CP). However, are exempted of criminal liability those who willingly avoid the result initially sought, either desisting from the execution already initiated, or impeding the production of the result, although without prejudice of the liability in which they could have incurred for the acts already executed, if they are regarded as another crime (art. 16.2 CP). According with the above, are exempted from criminal liability who willingly execute all the acts or part of them, which should have as a result the death of a third person, but for their later own acts or for their own desisting, the initially sought result, the death, is not produced. For example, who stabs a person in a part of its body and with an intensity which in ordinary circumstances should produce its death, but rapidly after doing it carries it to and hospital, and with this act save its life, will not respond for its behavior for a crime of homicide, but for a crimes of injuries.
This is the way in which has been interpreted by our courts, how is shown by this example of the SAP AB 823/2022: “The Supreme Court has applied in different occasions the figure of the active desisting to crimes of homicide or murder, without applying the attempt and punishing only of the harming result which was achieved, the following sentences are a good example:
Sentence of the T.S. of 20 October 2021:
“This Cassation Chamber, in the Plenary Agreement of 15 February 2002, has analyzed, with regard to the article 16.2 of the Penal Code, what has been regarded a kind of acquitting excuse, designed by the legislator, as all of its class, for reasons of criminal policy. It emphasizes the demand of “willingness”, which defines its dogmatic essence, and after, the “efficacy” of the behavior which halts the “iter criminis”, requiring that either it is the own author of the crime who impedes the commission of the crime, or it is who provoke the participation of third persons, if they are who finally achieve it. ( Sentence of this Chamber nº 28/2009 of 23 January). That agreement had been gathered in the Sentence of this Court nº 446/2002 of 1 March, which agreed the desisting despite the fact that the accused in a discussion with its wife, took from its pocket a penknife of 12 centimeters and stabbed it in her neck and “later as consequence of the yelling and blood which was pouring from the wound both left the home asking for help to the neighbors, who called the ambulance and the police”. It was regarded that notwithstanding considering that the wound, owing to the tool and the part of the body affected was enough and suitable to provoke the death, extreme into which there were no discussion, owing to the later immediate behavior of the accused, going to the street and asking for help, proves that its initial malice, clearly homicidal, was changed when appear as imminent the death, disappearing that homicidal intention and asking for a help which was effective. The behavior of the accused was regarded as active desisting and was punished for a crime of injuries. Certainly the doctrine of this Chamber, in the exegesis of the article 16.2, has distinguished between the necessity of a denominated “active regretting”, or positive acts with the aim of neutralizing the executive acts already wholly executed, impeding with them the production of a result, and the sufficiency of the mere omissive acts of interruption of the execution of the illicit, for allowing the application of the repeated article 16.2 of the Penal Code, depending upon whether we are before what has been denominated “ended attempt” or “non-ended attempt”. Thereby, while in the “non-ended” would be enough with the interruption of the execution, in the ended, would be required the carrying out of positive acts which impede the result.
That is why, in subsequent sentences has been recognized that the most relevant of the regulation of the attempt in the Code currently in force is that in the article 16.2 is described the figure of the desisting with great scope and applicable to tow kinds of attempt, ended and non-ended, in the following terms: And is stablished that: “Certainly the new desisting of the art. 16.2, has supposed a turning point in the jurisprudence of the Chamber because if during the validity of the CP of 1973 it does not envisage the desisting in the old frustration, but only the application of the ninth attenuating factor of the art. 9 of such Code—fixing the damage—, now is recognized the existence of an active desisting when the agent impedes the harming result, with the consequence that, for example in crimes against the life —as is the case—, what before was qualified as crime of homicide in the attempt with the attenuating factor of reparation, with the current Code, the jurisprudence of the Chamber qualify them as crimes of damages accomplished, since it has been considered that the crime against the life was exempted of liability for the willing and active desisting of the agent who had impeded the result, not being obstacle for this that the initial malice of the agent was of animus necandi.”
In short, the doctrine of this Chamber has been in cases of desisted and effective attempt of homicide, makes to respond the agent only of the crime of injuries —according the gravity of them—, despite the fact that the initial act of the agent was motivated by a clear homicidal intention. ( Sentence nº 111/2011 of 22 February).
The jurisprudential doctrine when setting the requisites for the effective exemption of desisting establishes that for finding out the negative component of the attempt (avoiding of the consummation by the author) has to be determined the cause by which the result is not produced. With respect to this, there are two hypothesis: 1ª) The no production of the result is alien to the will of the author and 2ª) It is the author who willingly avoids the consummation.
Although the legislator talks on the one hand of the no production of the result and on the other of the avoiding of the consummation, the emphasis for determining the consequences envisaged in the points one and two of the article 16, has been putted by the legislator into two notes: a) The willingness of the author and b) the effectivity of his behavior for causing the no production of the result, which objectively must have caused its previous behavior.
In other words, that if that behavior is free and willing and at the same time can be imputed to it the effect that the result or consummation do not finally occur, it results indifferent that such behavior adopts the modality merely omitted or the active modality.
Whether the previous acts have ended or not with the totality of the executive acts, that objectively must have produced the result, does not determine necessarily what has to be the condition, merely omitted or active of the behavior of the author which frustrates the production of the result, for achieving the exemption of the article 16.2 of the Penal Code.
The Penal Code uses the difference between the total or partial only as a criteria of individualization of the punishment (article 62) but not for setting the behavior which exempts the penal liability of the attempted crime.
In any case, with difficulty may be claimed interrupting effectivity of the mere omission of the author with regard to the production of the result, when its previous behavior has supposed the carrying out of all the acts that objectively produce the typic result. Because, it it already carried out all the acts that objectively produce the result, it is clear that neither the acts omitted were objectively executives nor their omission is relevant for the production of the result.
With such warning, it is ,therefore, to those references of free will and efficacy in the behavior of the author, regarding the no production of the result, to which we have to attend, without, to that effect, being essential be guided by the conceptual categories as the diversification of the attempt in subspecies, that in an evident way the legislator has tried to eradicate, obviating terminologies as the difference between the attempt and the frustration or between the ended attempt or non-ended attempt. This last terminology of alien origin, seems to attend to a data which our legislator does not assume explicitly. The doctrinal sector which introduced attended, for establishing the ending, to the contribution of the author in the execution and not to the concurrence of another factors alien to it. But that all that the subject provided ends is not necessarily equivalent to the fact that all the acts of execution (which can be produced by third parties) have been made. However the measure of the punishment depends upon that the execution had been total, including the acts that objectively produce the result, which are not acts of the author, and which can be of a third party.
Such taxonomic concerns, when we are trying to asses the absence of the result for establishing the demand of liability, must not make to forget the essentiality of the criteria of free will and efficacy, referred to the acting or omitting of the author of the attempt (Sentence 809/2011 of 18 July)”.
The sentence of the Supremo Court of 15 March 2018 says:
“The second basis of the STS 671/2017 of October, extensively develops the justification of the new doctrinal criteria:
“The Criminal Code, in its article 16, in relation with the 62, defines as attempt the behavior characterized, in the objective, by: a) The carrying out of “external facts”, in other words, not only internal; b) That impede the beginning of “direct” execution, in other words, non-preparatories, of case typically penal, sought in the plan of the author and which supposes a risk for the legal good that the penal type protect; c) that “objectively” these acts are potentially the cause of the result of the type, without being enough, therefore, the subjective conviction of the possibility of such causation, if before and objectively it could not occur, and d) that this result is not produced.”
“Subjectively is required a resolution in the author referred to the consummation of the crime, without which would not concur the type of the unfair of the attempt.”
“That said, to that elements has to be added the last negative requisite: that the author has not avoided the consummation, because in that case the penal liability, for the attempt of the fact typified whose execution began, would not be demandable according to the envisaged in the article 16.2 of the Penal Code.” Certainly the doctrine of this Chamber, in the exegesis of the article 16.2, has come distinguishing between the necessity of a denominated “active regret”, or positive actions tending to neutralize the executive acts already carried out, impeding with it the production of the result, and the sufficiency of the mere omissive acts, the interruption of the execution of the illicit, for allowing the application of the repeated article 16.2 of the Penal Code, depending on whether we are before of what has been denominated “ended attempt” or “non-ended attempt”. Thereby, while the “non-ended” will be enough with the interruption of the execution, in the “ended” will be required the carrying out of positive acts which impede the result”.
In the same way, the STS 778/2017 of 30 November, in a case where the accused after making a shot at short distance with a semiautomatic pistol which reach the victim, who turns and attack the aggressor, who continues aiming at it with the weapon and even puts the pistos against its temple, but leave it to go after varios kicks, is applied the exemption of the desisting in relation with the murder.
We have also to mention the Sentence of 2 April 2009:
“Down below, we have to analyze the later behavior of the accused:
The accused moved it in a vehicle of its property until the closest hospital where it was assisted and diagnosed”, adding in the basis of the sentence that this “assistance which of not being close to the moment in which were produced the facts, according to the medical experts, would have determined its dead”.
It is a behavior after the commission of the crime of extraordinary importance, relevance, since the related facts reveals that the action of killing, in the terms which we have analyzed, does not reach the result due to its later behavior bringing the victim to a hospital, with the efficacy that the sought result was not produced.
This latter behavior should be subsumed in the article 16.2 of the Penal Code, the active regret, in which the author tries to compensate the criminal action committed with a later behavior avoiding the production of the result of its action. For this case, of desisting, or of active regret, the Code envisages the exemption of the liability, without prejudice of the liability in which it has incurred for the acts already executed.
It is not behavior merely repairing but a behavior aimed to avoid the result of its action, therefore, it surpasses the mere reparation after the crime for being regarded as a behavior aimed, with efficacy, to avoid the result initially sought…
Because if the initial intention is to end with the life of the victim and the suitability of the means uses justified, at first sight, the classification of these facts as homicide, in its case murder, in the degree of attempt, the action impeding the acts of aggression should bring the application of the figure of the desisting in the attempt or active regret of the art. 16.2 CP.
According to this precept, the committed for trial should have been exempted from the liability which in another case would have corresponded to him for the attempt of homicide and being convicted for the crime of injuries which constituted, by their own, the wounds which were produced.” In the same vein, is pronounced the sentence of the T.S. of 30 May 2012: “This behavior of the appellant is a clear case of active desisting, because after having effectuated the acts of aggression related with the lethal weapon as is a knife of the characteristics described, changed its initial homicidal malice for what this chamber has denominated as “malice of salvation”, moving the victim bad wounded to a service of emergencies, which was the only suitable behavior to save its life, when it did not exist yet alien knowledge of the facts and therefore as spontaneous fruit of its free will.
We are, as consequence, before what this Chamber has denominated an “actus contrarius” to the aggressor, with efficacy for halting the normal course of the injuries produced towards the result of death and manifestly willing, thereby there concurs the two requisites envisaged by the legislator for the application of the consequence envisaged in the article 16.2 for the active desisting (efficacy and willingness), having been avoided through the regret of the agent the consummation of the injury to the life which constitutes the legal good protected by the crime of homicide.
In consequence, it is of application the second paragraph of the article 16 of the Penal Code which establishes an acquitting excuse with regard to the crime of murder initially begun by the agent, being necessary to punish, exclusively, the facts really committed which constitute a crime of injuries.”
Applied the above jurisprudence upon the present case, and departing from the fact that the accused committed the necessary acts to cause the result of death, only needing to wait to the passing of the time, however, she did not wait to it to happen, but she willingly proceeded to the carrying out of the acts which avoided the production of the result. Thereby, she made the call to its mother, because she could not make it, likewise she could not have opened the door or could not have took out the minor from the room and carry him to the balcony of the living room, putting in this way an end to her idea of ending with her life and the life of her son, saving with it his life because otherwise, in the case of continuing to be exposed to the inhalation of the gas, he would had died. Therefore, are fulfilled the requisites for applying the desisting of the article 16.2 of the CP:
- Willingness of the actions, nothing obliged to her to call her mother, to open the door or to take him out of the room where he was inhaling the gas.
- It was positive, effective and complete because this behaviors determined that his life was saved. This is, the action carried out which could had ended with the life of the minor, is neutralized with these later behaviors until the point of leaving without effect the initial malice. The basis of such exemption, in the words of the sentence of the T.S. of 9 February 2017, “resides in various motives: “Some authors understand that the favorable treatment that in this is established for the desisting of the attempted crime respond to reasons of criminal policy. According to this doctrine -known as the theory of the criminal policy- the law has wanted to create a motive for, in the sight of the exemption of the punishment, the author desists of its fact, what constitutes a clear objective of criminal policy.
Other authors sustain (theory of the insignificant liability) that the basis of this norm is placed precisely in the reduction of the liability until the insignificant, for it is founded in a compensation based in an actus contrarious. Lastly, another part of the doctrine, deem that, in it converge various basis: the pointed out reasons of criminal policy and also the lesser liability that implied the general consideration of the fact, with an initial negative meaning which is compensated with a positive sense of the avoiding of the result part of the corresponding penal figure.””
Finally the article 138, in its second point adds that, the crime of homicide envisaged in its first point will be punished with the punishment superior in degree when: any of the circumstances envisaged in the first point of the article 140 concurs, or; the facts may be, besides, regarded as a crime of attack of the article 550. According to the first section, of the first point of the article 70: “The punishment superior in degree will be formed departing from the maximum amount marked by the law for the crime and increasing it in the half of its amount, constituting the resulting sum its maximum limit. The minimum limit of the punishments superior in degree will be the maximum of the punishment envisaged by the law for the crime increased in one day or one day of fine depending upon the nature of the punishment to be imposed.” According to the above, the crime of homicide will be punished with the punishment of imprisonment from fifteen years and one day to twenty two years and six months.
Nevertheless, the regulation of the crime of homicide do not end here, to what is said by the article 138 we have to add the envisaged by the article 140 bis and the article 141. According to the former, to the convicted for homicide can be imposed also the measure of watched freedom, and if the victim and who is the author of the homicide, have a son or daughter, will be imposed to the author, besides, the punishment of privation of the parental authority, the same will happen if the victim was a son or daughter of the author with respect to the other sons if they exist. On the other hand, the article 141 punishes with the punishment inferior in one or two degrees to the envisaged by the article 138 for the homicide, by the article 139 for the murder and by the article 140 for the aggravated murder, to those who provoke, conspire or propose the commission of any of the above crimes. In this case, the provocation, the conspiracy and the proposition for committing the crime of homicide will be punished with the punishment of imprisonment from five to ten years minus one day, when the punishment of the article 138 is reduced in one degree, and from two years and half to five years minus one day when the punishment of the article 138 is reduced in two degrees.
– The murder:
The murder is only an aggravated classification of the crime of homicide, for concurring in its commission the circumstances enumerated in the article 139, which suppose a greater penal reproach, and consequently a greater punishment.
In the murder, we have to take into account all what we have seen in relation with the homicide. During its commission must concur malice, at least in its eventual modality, although as we will see now, due to the circumstances enumerated in the art. 139 and which distinguish the homicide from the murder, the existence of malice will be easier to determine for it is implicit in each of such circumstances. To the murder will be also applicable when will exist malice when the murder is carried out by a group of persons. And although it is an aggravated classification of the crime of homicide, in the case of the murder, the active desisting which supposes the exemption of the penal liability according to the article 16.2 of the CP, will be applicable too.
The article 139 says: “Who kills another concurring any of the following circumstances, will be punished, as convicted for murder, with the punishment of imprisonment from fifteen to twenty-five years:
1ª With malice aforethought.
2ª For price, reward or promise.
3ª With cruelty, willingly and inhumanely increasing the pain of the offended.
4ª For facilitating the commission of another crime or for avoiding its discovering.
- When in a murder concur more than one of the circumstances envisaged in the above point, the punishment will be imposed in its superior half.”
Therefore, who kills another concurring any of the following circumstances, will be punished as convicted for murder: 1º With malice aforethought; 2º For price, reward or promise; 3º With cruelty, willingly and inhumanely increasing the pain of the offended, or; 4º For facilitating the commission of another crime or for avoiding its discovering. If we compare such circumstances with the generic aggravating factors of the art. 22 of the CP, for being applicable to all the crimes of the CP, we see that three of them are included in such article: the malice aforethought; for price, reward or promise, and; with cruelty.
The malice aforethought, which is the first of the circumstances envisaged by the art. 139.1, besides, stands out between them for the being the more usual when the crime of murder is appreciated by the Spanish Courts. According to the own article 22.1 of the CP: “There is malice aforethought when the guilty commit any of the crimes against the persons making use in its execution means, modes, or forms that directly or specially are destined to guarantee their commission, without the risk which for its person may come from the defense of the offended.” Or how is pointed out by the STS nº 1890/2001 of 19 October, the kernel of the malice aforethought is found in the destruction of the possibilities of defense. The SAP M 15874/2022 also said that, the malice aforethought requires four elements: “a) In the first place, a normative element. The malice aforethought only can be applied in crimes against the persons.
b) In the second place, an objective element which resides in the “modus operandi”, that the author uses in the execution means, modes or forms which have to be objectively adequate for assuring it through the elimination of the possibilities of defense, without being enough the convincing of the subject about its suitability.
c) In the third place, an subjective element, that the malice of the author is applied not only upon the utilization of the means, modes or forms employed, but also upon its tendency to assure the execution and its orientation to impede the defense of the offended, eliminating in this way the possible risk which may suppose to its person an eventual defensive reaction of it. In other words, the agent has to have intentionally seek the production of the death through the means indicated, or at least, to take advantage of the situation of assuring the result without risk.
d) And, in the fourth place, an teleologic element, which imposes the checking of whether in reality, in the concrete case, was produced a situation of whole defenselessness, being necessary the appreciation of a greater unlawfulness of the behavior precisely derived of the modus operandi, consciously aimed to those purposes ( STS. 1866/2002 of 7.11).”
Besides, in the same SAP M 15874/2022 are distinguishes three different kinds of malice aforethought, according to the jurisprudence of the Supremo Court, taking into account the different executive modalities of premeditated nature: “a) Treacherous malice aforethought, equivalent to treason and which includes the trap, insidiousness or ambush, situations in which the aggressor is hidden and falls upon the victim at the moment and place where it does not wait it. b) Sudden or unexpected malice aforethought, in which the active subject, even at the sight or in the presence of the victim, do not discover its intentions or taking advantage of the confidence of it acts in a way unexpected and sudden. In these cases is precisely, the unexpected character of the aggression what eliminates the possibility of defense, for who do not expect the attack cannot prepare itself against it and react in consequence, at least according to its possibilities. This modality of malice aforethought is appreciable in the cases in which there is an attack without previos warning. c) Helpless malice aforethought, which consists in the taking advantage of a special situation of helplessness of the victim, as in the cases of children, weakened elderly, grave ill or handicapped, or for being accidentally without the possibility of defense (asleep, drugged, or drunk).»
We see that the malice aforethought requires in most of the cases, that the victim does not expect the attack, that is why the courts has esteemed it incompatible with those cases in which the aggression derives from a previous fight or quarrel. Nevertheless, this doctrine has been qualified, as the STS 4461/2022 says: “The premeditated character has usually been regarded as incompatible with the malice aforethought the existence of a situation of fight or quarrel, such incompatibility is based in the fact that this previous situation determines that the attack may be expected. But this incompatibility, has a double clarification: a) That there exist no important qualitative change, for there may be malice aforethought when, for example, in a quarrel merely verbal, suddenly one of the adversaries makes use of a weapon to kill or injure; b) That there is no rupture with the before incident, for if the discussion has ceased and after there is a sudden aggression may occur this aggravating factor. That is why, is compatible the malice aforethought with a previous discussion, when one of the adversaries cannot rationally wait an exasperating behavior of the other party which goes beyond the verbal confrontation and slips towards an out of proportion aggression that surprises the victim ( SSTS 892/2007 of 29 October; 912/2009 de 23 of September; 632/2011 of 28 June 2011; or 563/2020, of 22 October).”
The second of the circumstances of the article 139.1, is to kill a person for price, award or promise. In this case, the aggravating of the punishment resides in committing the murder as part of a previous agreement, in which the executor acts as what is known like “hired assassin”, being who orders the murder in reality the interested in its carrying out.
In the third place, we find to kill a person with cruelty, willingly and inhumanely increasing the pain of the offended. Let us see, what have said the courts regarding this, SAP BA 1394/2022: “In both cases, it is made reference to a way of act, in which the author, in the course of the execution of the fact, aside of seeking the own result of the crime, in the murder the death, causes willingly another damages which exceed those inherent to the typic action, unnecessaries objectively for achieving the result, which seek to provoke more suffering to the victim. Unnecessary sufferings caused by the simple pleasure of making harm what supposes a greater gravity of the typic fact. The cruelty requires an objective element constituted by the fact of causing unnecessary harms for achieving the typic result, which increase the pain or suffering of the victim; and another subjective, that the author must execute, willful and conscious, acts which are not directly aimed to the consummation of the crime, but to the increasing of the suffering of the victim. The Jurisprudence of our Supreme Court interpretes the term willingly as the reflexive knowledge of what is being made, and the expression inhumanely as the improper behavior of an human being, thereby the STS 1176/2.003 of 12 September and 1760/2.003 of 25 December. The author must act in a way conscious and willful, for which it is enough with being able to affirm that it knows that with this way of acting necessarily increased the suffering of the victim. It is not necessary, therefore, that exists cold blood, either that the action is directly or exclusively aimed to cause more pain as is established in the STS nº 477/2.017 of 26 June.”
Lastly, in the fourth place, we have to kill a person for facilitating the commission of another crime or to avoid that it is discovered. In this cases, the murder will only be the mean to achieve another end, to commit another crime, or to avoid that is discovered another already committed.
The article 139 is made up of another point, in it is aggravated the punishment of the crime of murder, being imposed such punishment in its superior half, when during the commission of the murder concur more than one of the circumstances envisaged in its first point. In these cases, the crime of murder will be punished with a punishment of imprisonment from twenty years and one day to twenty-five years.
However, the regulation concerning to the crime of murder does not end here. We have to add the envisaged in the article 140. This article punishes the crimes of murder with the punishment of permanent reviewable imprisonment when one on the circumstances envisaged in its first point concurs, or when a person is convicted for the murder of more than two persons. Concretely the article 140 says: “1. The murder will be punished with the punishment of permanent reviewable imprisonment when any of the following circumstances concurs:
- That the victim is a minor with less than sixteen years, or it is a person specially vulnerable, as consequence of its age, illness or handicap.
- That the fact was subsequent to a crime against the sexual freedom that the author has committed against the victim.
- That the crime had been committed by who was part of a criminal group or organization.
- To the convicted for murder of more than two persons will be imposed a punishment of permanent reviewable imprisonment. In this case, will be applicable the envisaged in the letter b) of the point 1 of the article 78 bis and in the letter b) of the point 2 of the same article.”
As in the case of the homicide, the crime of murder of the article 139 and the article 140, will be also applicable the envisaged in the articles 140 bis and 141. According to the former, the convicted for murder can be imposed too, the security measure of watched freedom, and if the victim and who is the author of the murder, have a son or daughter, will be also imposed to the author the punishment of privation of the parental authority, the same will happen if the victim was a son or daughter of the author with respect to the other sons or daughters. According to the latter, the provocation, conspiracy or proposal for committing any of these two crimes, will be punished with the punishment inferior in degree to the envisaged for them in the article 139 or the article 140. In these cases, the provocation, conspiracy or proposal for committing the crime of murder of the article 139 will be punished with the punishment of imprisonment from seven years and six months to fifteen years minus one day, when it is reduced in one degree, and from three years and nine months to seven years and six months minus one day when it is reduced in two degrees. On the contrary, for the punishment of permanent reviewable imprisonment envisaged in the article 140, we cannot apply the criteria of the article 70.1.2º of the CP, as we have seen before, for calculating the punishment inferior in one or two degrees degrees, in these cases will apply the fourth point of the article 70 CP, “The punishment inferior in degree of the permanent reviewable imprisonment is of imprisonment from twenty to thirty years.” Thereby, we do not know yet, what is the punishment inferior in two degrees of the permanent reviewable imprisonment. In my opinion, we have to follow the same steps that we have followed before to its calculation, in other words, the punishment inferior in two degrees to the permanent reviewable imprisonment will be of imprisonment from ten years to twenty years minus one day.
– The imprudent homicide:
The imprudent homicide is regulated in the article 142 of the CP. The imprudent actions or omissions are only punished when it is expressly envisaged by the law (art. 12 CP) and this is what is done by the article 142.
The imprudence, is a complex legal concept, bordering with the eventual malice defined before when it is a grave imprudence, for the LO 1/2015 distinguishes between the grave imprudence and the less grave imprudence, being the slight imprudence reserved for the civil ambit of the non-contractual liability.
According to the Sentence of the Spanish Supreme Court 2648/2022: “the essence of the crime of imprudence is the infringement of the duty of care which makes reprochable this behavior because this care was demandable.” And down below it adds the elements of which it is made up: “a) A non-willful or malicious action or omission, with the absent of any direct or eventual malice; b) The psychological or subjective factor in the negligent acting for lacking of forecast of the risk, an element non-homogenisable and therefore susceptible of being appreciable in differing degree; c) the normative or objective factor represented by the infringement of the objective duty of care, specified in the regulation norms or imposed by the social and cultural norms demandable to ordinary citizen, according to common experience; d) production of the harmful result; and e) adequate causal relation between the careless behavior provoking the risk and the harm caused within the ambit of the objective imputation ( SSTS. 1382/2000 of 24.10, 1841/2000 of 1.12.).”
Therefore, the great difference between the eventual malice and the imprudence is that, in the case of the imprudence, it may consist in either an action or an omission, the harmful result must not be wanted or accepted, and such action must be rationally dangerous, not allowed, due to the omission of the duty of care normally demanded by the legal order, by the customs or by the rules of social coexistence.
The sentence of the Spanish Supreme Court 2543/2022 says: “In the imprudent crime, therefore, is produced a result socially harmful through an action avoidable and which exceeds the risk allowed. The illicitness will be determined by means of the comparison between the action made and what was demandable by the duty of care in the concrete situation.”
In order to distinguish between the grave imprudence and the slight imprudence, we have to attend to the importance of the duty omitted, the value of the legal goods affected y greater or lesser possibilities that the result is produced.
According to the aforementioned quoted sentence of the Spanish Supreme Court 2543/2022, the grave imprudence is: “the omission of the care more intolerable, through an active or omissive behavior, which causes a harmful result and which is causally normatively linked which such result.” While in the same sentence the less grave imprudence is defined how: “the constitution of a risk of inferior nature, to the grave, assimilable in this case, the less grave, as the infringement of the common duty of forecast in the activity carried out by the agent in the corresponding behavior which is the object of attention and which is the causally determined, unique or plural, with the result produced, in a way that can be affirmed that the creation of the risk is attributable to the agent, either for professional behavior or for its action or omission in an activity socially and legally allowed which may provoke a harmful effect.”
Returning to the article 142, in it are regulated two kinds of imprudence, the grave and the less grave. Concretely, the article 142 says: “1. Who for grave imprudence provokes the death of another, will be punished, as convicted for imprudent homicide, with the punishment of imprisonment from one to four years.”
If the imprudent homicide had been committed using a motor vehicle or a moped, would be imposed too, the punishment of privation of the right of driving motor vehicles and moped from one to six years. In the application of the above, will be regarded in any case as grave imprudence the driving in which the concurrence of any of the circumstances envisaged in the article 379 determines the production of the result.
If the imprudent homicide had been committed using a firearm, would be imposed too the punishment of privation to the right to the possession and carrying of weapons for a term from one to six years.
If the homicide had been committed for professional imprudence, would be also imposed the punishment of special disqualification for the exercise of profession, trade or post for a term from three to six years.
- Who for less grave imprudence provokes the death of another, will be punished with the punishment of fine from three months to eighteen months.
If the homicide had been committed using a motor vehicle or a moped, would be imposed too, the punishment of privation of the right to drive motor vehicles and mopeds from three to eighteen months. Will be regarded in any case as less grave imprudence that classified as grave in which the production of the fact had been essential the commission of any of the grave infringements of the traffic, vehicle traffic and traffic safety rules. The assessment about whether the existence or not of the determination must be appreciated in motivated resolution.
If the homicide had been committed using a firearm, could be imposed as well the punishment of privation of the right to the possession and carrying of weapons for a term from three to eighteen months.
Save in the cases in which is produced using a motor vehicle or moped, the crime envisaged in this point only will be prosecutable by means of report of the offended or its legal representative.”
We have to stress, that the less grave imprudence of the second point of the article 142, only is prosecutable for report of the aggravated person or legal representative, save in the cases in which it is produced using a motor vehicle or moped. This turns it, in these cases, into a semi-public crime, in other words, only prosecutable a the request of the offended, but once the criminal procedure is initiated through report or lawsuit, this can continue with only the intervention of the Public Prosecution without the necessity that the offended is present as a party in the procedure.
On the other hand, the article 142 bis, allows to the judge or court to punish the grave imprudence in the first point of the article 142 with the punishment superior in degree if the facts are enough grave. Concretely it says: “In the cases envisaged in the point one of the above article, the Judge or Court may impose, motivating it, the punishment superior in degree, in the extension which it esteems necessary, if the fact has enough gravity, according to the singular entity and relevance of the risk created and the normative duty of care infringed, and had provoked the death of two or more persons o the death of one and injuries regarded as crime according to the article 152.1.2º or 3º in the rest, and in two degrees if the number of deaths was very high.”
Therefore, in the cases envisaged in the article 142 bis, the grave imprudence may be punished with the punishment of imprisonment from four years and one day to six years.
– The induction and the cooperation to the suicide:
Lastly, in the article 143 CP, are punished two sorts of behaviors, the induction to commit suicide and the cooperation with the suicide of a third.
The induction to the suicide supposes to make arise in other, the intention of committing suicide. In the article 28 is considered as author of a crime too, those who directly induce to its commission. That is why, for having at least an idea of what have to be the contribution of the instigator for the committing of the suicide, we can make use of the following excerpt of jurisprudence, from the STS 1337/2022, where are mentioned the characteristic elements of the induction, in our case we will have to adapt it to the case of the induction to commit suicide: “In the sentence of this Chamber 1026/2009, of 16 October, we remember the requisites of the induction: a) That the influence of the instigator has to be applied upon someone who previously is not decided to commit the infringement; b) That the incitation has to be intense and suitable, in a way which it motives enough to the induced to the commission of the fact desired; c) That is determined the executor and the commission of a concrete crime; d) That the induced executes, the crime to which it has been incited and e) That the instigator had acted with the double intention of provoke the criminal decision and that the crime is committed ( STS 5-5-88).”
On the other hand, the cooperation to the suicide of third, is polemic matter, about all in the cases in which this third is suffering an incurable illness which is provoking to him suffering every day. In this subject always clash religious and cultural elements, which reflect how advanced is a society.
In our case, the article 143 punishes three kinds of cooperations, according to their degree and nature. In its second point, is punished who cooperates with acts necessaries to the suicide of a person, in the third point when this cooperation is as intense as to provoke the death, and in the fourth point, the cases in which the cooperation is the consequence of a express petition of the victim for suffering a grave illness. Notwithstanding the above, the euthanasia has been expressly legalized in Spain, through the fifth point of the article 143, which has decriminalized the cases the cases in which someone causes or actively cooperates with the death of another person complying with the Organic Law which regulates the euthanasia, the Organic Law 3/2021 of 24 March.
Concretely the article 143 says: “1. Who induces to the suicide of another will be punished with the punishment of imprisonment from four to eight years.
- The punishment of imprisonment will be imposed from two to five years to who cooperates with necessary acts to the death of a person.
- It will be punished with the punishment of imprisonment from six to ten years if the cooperation reaches the point of executing the death.
- Who actively causes or cooperates with necessary and direct acts to the death of another, for the express, serious and unequivocal petition of it, in the case that the victim was suffering a grave illness which would end with its life, or produced grave and permanent pains difficult to endure, will be punished with the punishment inferior in one or two degrees to the envisaged in the numbers 2 and 3 of this article.
- Notwithstanding the envisaged in the above point, will not incur in penal liability who causes the death or actively cooperates to the death of another person fulfilling with the established in the organic law which regulates the euthanasia.”
The last article of the Title I of the Book II of the CP, punishes the behavior of who distributes or spread in internet, or by means of the telephone or any other technology contents destined to promote, encourage or incite to the suicide of legal minors or handicapped.
Concretely the article 143 bis says: “The public distribution or spreading through internet, the telephone or any other technology of the information or the communication of content specifically destined to promote, encourage or incite the suicide of legal minors or handicapped needed of special protection will be punished with the punishment from one to four years.
The judicial authorities will agree the adoption of the necessary measures for the withdrawal of the contents to which is referred the above paragraph, for the interruption of the services which offer such content or for the blocking of them when they are in the abroad.”
Such crime, should be tried according to special procedure regulated in the Spanish Criminal Procedure Act (LECrim) “Of the Procedure for the crimes committed by means of the press, the engraving or any other mechanic means of publication” (art. 816 – 823 bis LECrim). A procedure which has the main characteristic that, the examining magistrate may agree from the moment that is lodged report or lawsuit those preventive measures which impide a greater harm to the legal good affected by the crime, as the seizure of the printed copies or the prohibition of communicating or projecting the media through which was produced the criminal activity (art. 816 y art. 823 bis LECrim).
In the ambit of the envisaged in this article, will be also relevant the Law 34/2002, of 11 July of services of the society of information and of electronic commerce.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com