“Of the security measures” is the title of the Title IV of the Book I of the Spanish Criminal Code (CP), this is divided into two chapters “The security measures in general” and “Of the application of the security measures”, the latter also divided into two sections “Of the freedom´s privative measures” and “Of the non – freedom´s privative measures”.
In order to comment the above sections, we will no follow the schema proposed by the CP, we will follow another for the sake of clarity, although we will still pay attention to the location of each of our new points within the CP.
– The security measures:
The security measures are applied to those subjects who have committed any of the crimes contained as such in the CP, when in them concurs any of the exemptions from criminal liability envisaged in the first, second or third number of the art. 20 of the CP, or the incomplete exemption of the article 21 CP for any of the above motives, in others words, when the author of the crimes is unfit to plead, or semi-unfit to plead.
The imposition of any of the punishments included in the article 33 of the CP, supposes the existence of criminal liability and for that there must exist either malice or negligence in the commission of a crime (art. 5 CP). For malice, we should understand the conscious and deliberate commission of an act known as a crime, and those cases in which through an action is created a risk for a legal good protected, perceiving that a damage will be the result or at least its probable result, and notwithstanding this perception, it is decided to act. And there is negligence when, a duty of care is infringed which makes reprehensible this behavior because such duty of care was demandable.
If we pay attention to the motivos of the article 20 CP that entail the application of a security measure:
1ª Who at the moment of committing the criminal infringement, on account of either any anomaly or psychic alteration, cannot understand the unlawfulness of the fact or to act according such understanding.
2ª Who at the moment of committing the criminal infringement is in a state of full intoxication as consequence of consuming alcohol, toxic drugs, narcotics, psychotropic substances or another with analogous effects, always that it has not been sought with the purpose of committing it and it was not foreseen or it should have not been foreseen, or is under the influence of withdrawal symptoms, as consequence of his dependence to such substances, which impides to him to understand the unlawfulness of the fact or acting according to such understanding.
3ª Who, for suffering alterations in his perception since his birth, has gravely altered the consciousness of the reality.
We see that in all of them, is lacking that essential element in order to reproach to someone the commission of a crime, in all of them lacks the consciousness of the ensuing juridic consequences in the case of malice or eventual malice, or the existence of a duty of care in the case of the negligence.
We also see, that the legislator has left out of the ambit of application of the security measures other scenarios of exemption of the article 20, who acts in defense of the person or own or alien rights, who acts in state of necessity, who acts under the influence of an unsurmountable fright, or who acts fulfilling a duty or exercising a right, trade or charge. Because in these cases, the author of a fact typified as a crime is either conscious of his acts or obliged to fulfill a duty of care, although they act under the protection of a cause of exemption. Therefore, the security measures are only of application when who commit a crime is not able to percibe the unlawfulness of the fact, and for that he has to either be the victim of a mental illness which alters his perception of the reality, or to have acted under the effects of a drug or as consequence to his grave addiction to it. For the security measures has the goal, of protecting the society against those to whom cannot be imposed a punishment for being unfit to plead, or as the sentence with the number 792/2022 from the Provincial Court of Lleida says: “The security measures are aimed to the prevention of the criminal reiteration by the dangerous delinquent, in other words, they have as goal the special prevention of commission of unlawful acts regarding such subject. The security measures has to serve to the protection of the society and the own author against the danger of later crimes.”
Nevertheless, as we said at the beginning, the security measures can be also imposed upon those who are semi-unfit to plead for having committed a crime concurring the first attenuating circumstance of the criminal liability of the art. 21, in other words, when are not met all the requisites for applying any of the first three causes of exemption of the article 20. But in these cases, the measures of security can be only imposed as a complement of the corresponding punishment (art. 104.1 CP).
In order to be able to impose a security measure, certain requisites have to be met. The first is the established in the art. 1.2 CP, “The security measures can be only applied when are met the requisites previously established in the law.” This first requisite embodied the principle of legality, constitutionally recognized in the art. 9.3 of the Spanish Constitution (CE), and which reaches the rank of fundamental right in its article 25.1, an article that also remembers to us that the security measures has to be aimed to the reeducation and the social reintegration and cannot consist in hard labor. According to this principle, there must previously exist a norm with the rank of law as a requisite to the punitive action of the state, which defines the punishable behaviors and the their corresponding sanctions.
The second and third of the requisites is in the article 6 of the CP: “1. The security measures are based in the criminal danger of the subject to which are imposed, exteriorized in the commission of a fact envisaged as crime.
2. The security measures can be neither more costly nor of more duration than the punishment abstractly applicable to the fact committed, nor exceed the limit of the necessary for preventing the dangerousness of the author.”
The first point of the article 6 of the CP, is based in the principle of criminal and after-crime dangerousness. The security measures has to be the reply to a success typified as crime, cannot be imposed before its commission.
On the other hand, the second point is based in the principle of proportionality and in the principle of minimum intervention. The security measure has to be proportional with regard to the crime committed, and cannot be excessive to achieve its aim, that the subject who committed the crime does not commit another.
The rest of the requisites are established in the art. 95 of the CP: 1º) That the subject has committed a fact envisaged as crime, and; 2º) That from the fact and the personal circumstances of the subject can be deduced a forecast of future behavior that reveals the probability of commission of new crimes. The former remembers to us, something which we have already seen in the first point of the article 6, there must exist the previous commission of a crime for being able to impose a security measure. Conversely, the latter unveils a peculiarity of the security measures with regard to the ordinary punishments, a security measure should not be imposed when the circumstance which motivated it, disappears. Something which is even more clear, if we attend to the point b) of the 97, during the execution of the sentence the ruling judge or court may agree the cessation of any security measure imposed as soon as the criminal dangerousness of the subject disappears.
To the above we have to add the envisaged in the second of the points of the article 95, the freedom´s privative security measures can be only imposed when the crime committed is punished with a freedom´s privative punishment. Concretely it says: “When the punishment which would have been imposed for the committed crime is not a freedom´s privative punishment, the ruling judge or court could only agree some of the measures envisaged in the article 96.3.” In other words, a non-freedoms privative security measure can only be imposed.
This extract from the sentence with the number 792/2022 from the Provincial Court of Lleida is interesting with regard to the above, for how it summarizes the above requisites in only two: “The imposition of the security measures is conditioned for the concurrence of a number of requisites which should be met in a cumulative way:
1º Commission of a fact envisaged as crime. The expression “crime” should be considered as a unlawful fact. Therefore, security measures against justified facts are not applicable (until the reform carried out by the LO 1/2015 in the Criminal Code, which, between other questions, made to disappear the misdemeanours, they were not applicable against the commission of them either; however, since the content of some of them has passed to integrate a minor offence, currently we can say that is possible the imposition of a security measure against behaviors which before can never entail this consequence.) This demand of the previous commission of a crime fulfills a threefold guaranteeing function, since it strengthens the forecast of dangerousness (the subject has already shown certain criminal energy and capacity to commit an offense), strengthens the principle of legality (the imposition of a security measure is subjected to the commission of a fact previously envisaged by the law as crime) and reduces to bearable limits the preventive function (avoiding the eventual security measures before a crime is committed).
2º Criminal dangerousness. The criminal dangerousness, understood as a judgment of forecast about the probability or the relevant possibility that the criminal commits new crimes in the future, exteriorized in the commission of a fact envisaged as crime (CP art. 6.1), it has to be the object of controversy in the procedure and proven in it, without being the application of the measure automatic. It is a fundamental requisite for imposing a security measure, to which is referred the art. 95.1 CP since it demands “that the fact and the personal circumstances of the subject may be deduced a forecast of future behavior which reveals the probability of commission of new crimes.” The criminal dangerousness is also the limit of the security measures: “The security measures cannot exceed the limit necessary for preventing the dangerousness of the author” (art. 6.2 CP) and “the cessation of any security measure should be agreed as soon as the criminal dangerousness of the subject disappears. ( CP art.97.b).”
– Kinds of security measures:
The article 96 of the CP distinguishes between two sorts of security measures, the freedom´s privative measures and the non-freedom´s privative measures. The freedom´s privative security measures are enumerated in the second point of this article, and they are: 1ª The interment into a mental hospital; 2ª The internment into a center of dishabituation, and; The internment into a special educative center.
In order to impose a freedom´s security measure, the crime committed has to be punished with a freedom´s privative punishment (art. 95.2 CP). Besides, the freedom´s privative security measure to be imposed, will depends on the exemption or attenuating circumstance which has been applied during the criminal procedure, the interment into a mental hospital and the interment into a special educative center is reserved to that cases in which has been applied the first of third exemption of the article 20 CP (either psychic alteration at the moment of committing the criminal infringement or perception alteration since the birth or infancy), or the first attenuating circumstance of the article 21 for any of the above exemptions when do not concur all the requisites for its application (art. 101, 103 and 104 CP). While the internment into a dishabituation center is reserved to that cases in which the exemption applied is the second of the article 20 CP (to commit the criminal infringement under the effects of the drugs or the withdrawal symptoms), or the first attenuating circumstance of the art. 21 has been applied (art. 102 and art. 104 CP). Nevertheless, we should clarify that, in neither of the above cases, the commission of a crime punished with a freedom´s privative punishment inevitably supposes the imposition of a freedom´s privative security measure, the decision of imposing it in any of the scenarios envisaged in the art. 101, 102, 103 and 104 CP, is always of the ruling Judge or Court taking into consideration whether the requisites of the article 95, and the rest of the requisites mentioned in the first section of this writing, are met.
If freedom´s privative security measures and freedom´s privative punishments concur, for being the case contemplated in the art. 104, the rule established in the article 99 has to be fulfilled, the judge or court will agree the fulfillment of the security measure, which will count for the later fulfillment of the freedom´s privative punishment. Lifted the security measure, the rest of the punishment which has still to be complied for not having been compensated with the security measure, may be suspended by the judge or court which imposed it when the fulfillment of the punishment may put into danger the effects achieved by the security measure, the term of suspension according to the article 99 cannot exceed the rest of the punishment which lacks for fulfilling, or some of the non-freedom´s privative security measures of the art. 96.3 may be applied.
As we have just seen, the article 99 does not say anything regarding whether the suspension of the freedom´s privative punishment may be inferior than the part of this freedom´s privative punishment which lacks to be fulfilled, but if we take into account the motive in which is based, that the effects achieved through the security measure may be put a risk, we have to understand that the suspension should be for all the term of freedom´s privative punishment which lacks to be fulfilled after the lifting of the security measure. Besides, it is a case akin to the envisaged in the article 90 CP where is regulated the conditional release and consequently the suspension of the punishment, in such article, concretely in its fifth point, is established that the term of suspension and of conditional release cannot be inferior to the term of the part of punishment which lacks to be fulfilled. Thereupon, the suspension of the freedom´s privative punishment which lacks to be fulfilled after the lifting of the security measure, can be neither greater than what lefts of fulfillment of such freedom´s privative punishment, and what is more important, nor less than it.
Another question which may arise, is when may be lifted the freedom´s privative security measure when it is imposed along a freedom´s privative punishment. One motive to lift the freedom´s privative security measure is clear as water, all security measure should be lifted when the motives on which it was founded do not concur, the addiction or mental illness present both during the commission of the crime and during the imposition of the security measure by firm sentence. The other is not as clear as the above, evidently all security measure should be also lifted when the term for which was agreed elapsed, but here there exists the doubt of whether in the practice is imposed a freedom´s privative security measure for a less term than the freedom´s privative punishment which is completing, or on the contrary, freedom´s privative security measure and freedom´s privative punishment are agreed for the same term in the sentence, and the security measure is only lifted in the first case that we have seen.
The other kind of security measures, the non-freedom´s privative security measures, are enumerated in the third point of the article 96, they are: 1ª The professional disqualification; 2ª The expulsion from national territory of the foreigners who do not legally reside in Spain; 3ª The watched freedom; 4ª The family custody; 5ª The privation of the right of driving motor vehicles or mopeds, and; 6ª The privation of the right to the ownership or carrying of arms.
As we can see, this second kind of security measures, the non-freedom´s privative security measures, are akin or even some of them are the same that the right´s privative punishments of the art. 39 CP, with the exception of the expulsion of foreigners not legally residing in Spain and the family custody.
The professional disqualification is developed later in the article 107, the expulsion from the national territory in the art. 108, the watched freedom in the art. 106, the family custody in the own article 96, and for the privation of the right to driving motor vehicles or mopeds and the privation of the right to the ownership or carrying of arms we have to go back to the art. 47 if we want to know what is their content.
– The moment of the procedure in which should be agreed the security measures:
The security measures should be always agreed by firm sentence, it is important this clarification since one of the motives of acquittal on all charges is “When appear exempted from criminal liability the committed for trial as authors, accomplice or accessories after the fact” (art. 637. 3º LECrim).
Mainly there exist two kinds of procedure in the Spanish Criminal Procedure Act (LECrim), the Ordinary Procedure and the Abbreviated Procedure, depending on the gravity of the punishment with which is punished the crime investigated. On the one hand, the Abbreviated Procedure is for the trying of the crimes punished with a freedom´s privative punishment which do not exceed the nine years, or whatever other punishments of different nature. On the other hand, the Ordinary Procedure is for the trying of the crimes which surpass the above threshold for being graver.
Both procedures are really similar, but there exist also great differences between both of them, above all in the so-called intermediate stage of the procedure. Whereas in the Ordinary Procedure the Examining Magistrate only has capacity for concluding the stage of investigation and who decides on the opening of the stage of the oral trial is the court which will rule the case, in the Abbreviated Procedure who agrees the opening of the oral trial is the Examining Magistrate.
Regardless of the above differences, always that the exemption of criminal liability is appreciated for any of the scenarios contemplated in the numbers 1º, 2º, 3º, 5º and 6º of the art. 20 of the CP, the parties of the procedure should present the writings of provisional qualification of the crime, continuing the trial until the sentence in order to agree the security measure and the civil liability, according to the cases envisaged in the CP (art. 782.1 LECrim).
– Maintenance or alteration of the security measures during the execution of the sentence:
As we have already seen in the first of the points into which we have divided this writing, the security measures are aimed to the prevention of the criminal reiteration by the dangerous delinquent, in other words, they have the goal of the special prevention of unlawful facts with regard to this subject. Therefore, the security measures have to be lifted as soon as the dangerousness of the subject upon which have been imposed disappears. Or perhaps, there exists a positive evolution of such dangerousness, and the security measures has to be adopted in accordance with this evolution. Or perhaps, there is no change in the circumstances which motivated them, and remain unaltered during all the stage of execution of the sentence. Or maybe they can even be suspended.
On the basis of the above circumstances, the article 97 says: “During the execution of the sentence, the Judge or Court will agree, by the procedure established in the next article, some of the following decisions:
a) To maintain the execution of the security measure imposed.
b) To agree the cessation of any security measure imposed as soon as the dangerousness of the subject disappears.
c) To substitute the security measure for another which considers more adequate, between the envisaged for the case. In the case that the substitution was agreed and the subject suffers an unfavorably evolution, the substitution will be left without effect and the substituted measure will be again applied.
d) To leave suspended the execution of the security measure attending to the result already obtained with its application, for a term not greater than the term lacking up to the maximum agreed in the sentence which imposed it. The suspension will be conditioned to the no commission of more crimes by the subject during the term of suspension set, and can be left without effect if again is credited any of the circumstances of the article 95.”
Let us first see each of these options and later we will see the procedure of the article 98 mentioned in the article 97.
To the first option we can add very little, if the dangerousness of the subject is maintained, obviously the security measure should be maintained during the execution, at least until this dangerousness does not change.
The second option, to agree the cessation of any security measure as soon as the dangerousness of the subject disappears, is more complicated. Let us try to think about it carefully, taking into account the different possibilities we have.
The first is that, at the moment of committing the criminal infringement the subject suffers some anomaly or psychic alteration, which impedes to him to understand the unlawfulness of the fact, or to act according to such understanding.
Such psychic alteration should be enough intense for appreciating the exemption, something which will depend on the free appreciation of the proof made by the ruling judge or court (art. 741 LECrim), even when this appreciation can be influenced by the experts´ reports (art. 456 LECrim). It will be difficult or even very difficult, that either a judge or a court agrees the total exemption of the criminal liability based in this first motive of the article 20. Then, in these cases the more usual, except rare exceptions in which there exists a really grave illness, will be that the judge or court agrees the attenuating circumstance for concurring the first of the motives of the article 21 CP, this puts us in the ambit of application of the article 104, the fulfillment of a freedom´s privative security measure and of a freedom´s privative punishment, which affect to the freedom of the subject. As we have seen, by virtue of the article 99, first will be fulfilled the freedom´s privative security measure and later the freedom´s privative punishment, and being used the time spent in the former to compensate the later. If now we attend to the stated by the point b) of the article 97, the cessation of any security measure imposed as soon as the dangerousness of the subject disappear, with what is said by the article 99, lifted the security measure because the dangerousness of the subject has disappear, this has to comply with what is left of the freedom´s privative punishment, except when, the judge or court considers that the fulfillment of the punishment may have negative effects upon the achieved by means of the security measure.
In short, first it will be very difficult that a judge or court agrees the total exemption for the first motive of the article 20, and second, agreed the first attenuating circumstance of the art. 21, the lifting of the security measure should suppose the fulfillment of the punishment.
But, let us now think in the better of the cases, the judge or court agrees the total exemption for the first motive of the article 20. In these cases, at least when the crime committed was enough grave, the more usual should be to agree a new security measure less severe for the rights of the subject.
With the other two exemptions of the art. 20, to act under the effects of the drugs or as consequence of the addiction to them and to suffer an alteration in the perception since the birth or infancy, happens the same, therefore it is valid what we have seen in the above paragraphs.
The third possibility offered by the article 97 is, to substitute the security measure by another which result more adequate to the evolution of the subject, though if this subject once the new security measure is applied evolves negatively, the substitution will be annulled and the old security measure will be applied again. By the wording of his point c) of the article 97, it appears that the substitution of the security measure always has to be for one less severe than the preceding, since it is envisaged the return to the initial security measure when there is an unfavorable evolution. For this motive, we can have the doubt, whether it is possible to agree later a security measure more restrictive for the rights of the subject than the preceding, in my opinion there should not be any obstacle for that to happen, although the law departs from the idea that in any case, there will always be a favorable evolution of the subject to whom is imposed a security measure, for the therapeutic purposes of them, and not the contrary.
Lastly, the last possibility given by the article 97 is in its point d), to suspend the execution of the security measure for the results already obtained with its application, for a term which cannot exceed the term which lacks for its fulfillment, and which cannot exceed the term envisaged in the sentence that imposed it. The suspension will be conditioned by the fact that the subject does not commit a crime during the term of suspension, and this suspension can be cancelled if again is proven any of the circumstances of the art. 95.
In my opinion the term of suspension of the security measure which can be agreed, is not clear with the wording of the point d) of the art. 97. It says: “for a term not superior than that which lacks until the maximum pointed out by the sentence which imposed it.” I think that how should be understood such words is, the suspension of the security measure should be for the term which lacks of fulfillment, which is just what happens with the suspension of the punishment and the subsequently conditional release of the art. 90 CP. This article 90 says: “In any case, the term of suspension of the execution and of conditional release cannot be inferior to the duration of the part of the punishment which lacks to be fulfilled.” Besides, we can defend this interpretation on the grounds that they are almost the same scenarios, there is an initial fulfillment of a security measure or a punishment and later is agreed their suspension.
Later, as we have just seen, the suspension of the security measure is conditioned by two requisites, that the subject does not commit a crime during the term of the suspension and that there is not accredited again any of the circumstances envisaged in the article 95. Obviously, if the subject commits a new crimen during the term of suspension, there will be accredited the two requisites envisaged in the article 95, that a crime typified as a crime has been committed and the reasonable possibility that this subject commits again a new crime. But what is said at the end of the point d) of the article 97, appears to have a much further scope, it says that the suspension of the security measure “may be left without effect if again are accredited any of the circumstances of the article 95 of this Code.” Thereupon, besides the commission of a new crimen during the term which lacks of suspension of the security measure, we have also to understand that the suspension of the punishment can be annulled if is again detected, on the subject who committed the crime which motivated the security measure, this criminal potentiality which makes probable the commission of a new crime, in other words, it is enough with being a potential risk for the society for leaving without effect the suspension of the security measure previously agreed.
Let us now move to the procedure whereby will be reviewed the suspension of the security measures initially agreed. This procedure is established in the article 98 of the CP, as is indicated by the article 97.
The first point of the article 98 says: “To the effects of the above article, when it is a freedom´s privative security measure or a measure of watched freedom which must be executed after the fulfillment of a freedom´s privative punishment, the Prison Oversight Judge is obliged to elevate at least annually, one proposal of maintenance, cessation, substitution or suspension of it. For formulating such proposal the Prison Oversight Judge must assess the reports emitted by the doctors and professionals who assist to the subjected to security measure or for the Public administrations with competence and, in its case, the result of the rest of actuations agreed with this goal.”
In the first point of the article 98, is attributed to the Prison Oversight Judge the obligation of making a proposal at least annually of maintenance, cessation, substitution or suspension of a freedom´s privative security measure imposed, and in the cases in which a watched freedom measure has to be executed after the fulfillment of a freedom´s privative punishment. According to the article 76 of the General Penitentiary Organic Law (LOGP), the Prison Oversight Judge has attributions to make to fulfill the punishment imposed, this is the reason why is him who is in charge of the proposal, but who has to approve such proposal is the judge or court who agreed the freedom´s privative security measure, something which distinguishes it from the suspension and conditional release of the article 90 CP, since in these cases who has to agree the suspension and conditional release will be the Prison Oversight Judge taking into account the report of conditional release emitted by the Prison Treatment Board. Another great difference with respect to the suspension and the conditional release is that, the art. 98 does not envisaged the possibility that the subjected to a freedom´s privative security measure requests its review to the Prison Oversight Judge, or to the judge or court who agreed it, hence this initiative is exclusively reserved to the them, conversely, in the suspension and conditional release of the art. 90, the punished is who has to request it.
Leaving aside what we have just seen, in the article 98 are clearly distinguished two scenarios, the proposal of maintenance, cessation, substitution or suspension of the a freedom´s privative security measure, and the proposal of maintenance, cessation, substitution or suspension of a measure of watched freedom. In the former case, the Prison Oversight Judge does have to make at least annually the proposal, but in the latter there are two stages, first is applicable what is established in the second point of the article 106, in other words, the Prison Oversight Judge at least two months before the extinction of the freedom´s privative punishment, must make the proper proposal to the ruling Judge or Court who will determine the exact content of the measure. And after the measure of watched freedom has been imposed, is when the procedure established in the art. 98 is applicable, being obliged the Prison Oversight Judge to make at least one proposal each year, about the maintenance, cessation, substitution or suspension of the obligations which are part of the measure of watched freedom.
On the other hand, the second point of the article 98 says: “When it is any other non-freedom´s privative security measure, the ruling judge or court will directly obtain from the administrations, doctors or professionals mentioned in the above point, the proper reports about the situation and evolution of the punished, his degree of rehabilitation and the forecast of recidivism or criminal reiteration.”
Thereupon, if the first point of the art. 98 is only reserved to the freedom´s privative security measures and the measures of watched freedom which should be executed after the completion of a freedom´s privative punishment, the second is aimed to the security measures of the article 96.3 CP, in other words, to the non-freedom´s privative security measures. In their case, the figure of the Prison Oversight Judge disappears and the ruling judge or court is who is in charge of assessing the reports coming from the doctors or professionals who have been in charge of the fulfillment of the non-freedom´s privative punishment imposed. In this scenario, it is not envisaged either the possibility that the subjected to the security measure requests its review, and something which distinguishes it from the above case, the ruling judge or court does not have a term to make the proposal.
And the last point of the article 98 is the third, which says: “3. In any case, the ruling Judge or Court will rule taking into account the proposal or reports mentioned in the above two points, heard the own person subjected to the measure, as well as the Public Prosecution and the rest of the parties. Likewise, the victims of the crime which are not a party will be heard too, when they have requested it at the beginning or in any moment of the execution of the sentence and remain reachable.”
From this third point of the article 98, is understood that, the ruling judge or court will use the reports coming from the experts who have reviewed the fulfillment of the security measure for agreeing a decision, but we cannot understand that they are bound by the content of such reports. Besides, before adopting any decision, they have to hear the person subjected to the measure, the public prosecution and the rest of the parties, included the victims who are not a part of the procedure when they have requested it.
– The breaching of a security measure:
The consequences of breaching a security measure are established in the article 100, which says: “1. The breaching of a security measure of internment will give rise to the request of the judge or court requesting the reentry of the subject in the same center from which he has escaped or in other which corresponds with his state.
2. If they are another measures, the judge or court may agree the substitution of the broken measure by the internment when it is envisaged for such case and if the breaching shows the necessity.
3. In both cases the Judge or Court will take testimony for the breaching. To this effects, will not be regarded as breaching of the measure the negative of the subject to submit to the medical treatment or to continue a medical treatment previously consented. Nevertheless, the judge or court may agree the substitution of the initial treatment or later rejected for other measure of the applicable to the case.”
As we can see, in this article are distinguished two scenarios, when the broken security measure is of internment, and when the broken security measure is a non-freedom´s privative security measure. In the former, the subject will be again put in the special center, whereas in the latter, the non-freedom´s privative security measure may be substituted by the internment if the crime from which it derives is punished with a freedom´s privative punishment. It is missed that, the article does no mention whether the breaching of a non-freedom´s privative security measure may be substituted by another by the procedure of the art. 97 and 98.
It is also relevant the third point, since it consider as a breaching of the measure neither the negative of the subject to submit to medical treatment nor the negative of the subject to continue with another treatment previously consented. It is relevant because in these cases, the medical treatments means strong medicines. But both negatives will suppose the substitution of the measure previously agreed by another.
– The concurring of freedom´s privative security measures and of freedom´s privative punishments:
In part we have already talked about it in the section dedicated to the classes of security measures.
We are referring to the case contemplated in the article 99 and the article 104 of the CP. In the art. 104 CP, is envisaged that, when for the imposition of a punishment is appreciated the existence of the first attenuating circumstance of the art. 21 CP, for any of the three first exemptions of the article 20, the judge or court may impose, besides the corresponding punishment, a security measure of the envisaged in the art. 101, 102 and 103 of the CP, in other words, the interment into a mental hospital, into a special educative center or into a center of dishabituation. However, being freedom´s privative security measures, they can only be imposed when the crime committed has associated a freedom´s privative punishment.
When we are in the case contemplated by the art. 104 CP, we have to attend to the art. 99 CP for its application. If freedom´s privative punishment and a freedom´s privative security measure concur, the freedom´s privative security measure must be fulfilled first, and after the punishment, serving the days complied as freedom´s privative security measure to compensate the later fulfillment of the punishment. But, if the ruling judge or court consider that, the fulfillment of the rest of the punishment muy put at risk the effects achieved by means of the security measure, this can be suspended or be applied any of the measures envisaged in the art. 96.3 CP.
– The cases of exemption of criminal liability resulted in the art. 101, 102, 103 and 104 of the CP:
This is something we have not explained yet, but it does not mean that it is not important, in any case it is a mistake of who writes. The article 95 says that: “The security measures will be applied by the Judge or Court … to the persons who are in the scenarios envisaged in the next chapter…”. Therefore, the security measures cannot be randomly imposed, the rules of the Chapter II, of the Title IV of the Book I CP have to be followed for their application. The mentioned Chapter II begins with the article 101, thereupon in it, as happens with the articles 102, 103 and 104, what we find is part of the rules for the imposition of determined measure of security.
Each of these four articles is referred to a different exemption, in other words, each of them express the security measure which may be applied depending on the kind of exemption of the article 20 or 21 applied, which as we already know can be only of four classes: 1ª) The envisaged in the first number of the article 20 CP, that at the time of committing the criminal infringement, as consequence of a psychic anomaly or alteration, the author of the crime cannot understand the unlawfulness of the fact or to act according to such understanding; 2ª) The envisaged in the second number of the art. 20 CP, that at the time of committing the criminal infringement, the author of the crime is intoxicated by a drug or with withdrawal symptoms, as to be incapable of understanding the unlawfulness of the fact; 3ª) The envisaged in the third number of the article 20 CP, that the author of the crime suffers an alteration in the perception since his birth or infancy, which has altered in him the consciousness of the reality, and; 4) The envisaged in the first number of the article 21 CP, which in reality is not an exemption, it is rather an attenuating circumstance, although we can also refer to it as an incomplete exemption, which will be applicable when it is not possible to apply any of the above exemptions for lacking any of their requisites.
The article with which begins the chapter dedicated to the application of the security measures is the art. 101, which says: “1. To the subject who is declared exempted from criminal liability according to the first number of the article 20, can be applied, if it is necessary, the measure of internment for medical treatment or special education in an adequate place to the kind of anomaly or psychic alteration appreciated, o any other of the measures envisaged in the third point of the article 96. The internment cannot exceed the time necessary which would have lasted the freedom´s privative punishment, if the subject had been declared liable, to that effect the judge or court will set in the sentence the maximum limit.
2. The subjected to this measure cannot leave the place without authorization of the ruling Judge or Court, according to the envisaged in the article 97 of the CP.”
According to the article we have just seen, the application of the first exemption of the article 20 supposes the possibility that the author of the crime is put in a mental hospital or in a especial educative center, depending on the psychic alteration he has. The measure of internment, will be only applied when it is necessary for an effective protection of the victim or the society, attending to the own dangerousness of the author of the crime, and can be only agreed when the punishment which could have been imposed for the crime committed is a freedom´s privative punishment (art. 95.2 CP). If it is not necessary, or the crime committed is not punished with a freedom´s privative punishment, can be imposed any of the non-freedom´s privative security measures of the article 96.3, although for the imposition of the security measure of professional disqualification we have to attend also to the envisaged in the art. 107.
Besides, according to the art. 101 the internment cannot exceed the term which would have lasted the freedom´s privative punishment, if the subject had been declared criminally liable. However, as we can see, this art. 101 does not say anything regarding the duration which cannot be exceeded by a non-freedom´s privative security measure, in these cases should be enough the stated in the second point of the article 6 CP: “The security measures can be neither more costly nor of more duration than the abstract punishment applicable to the crime committed, nor to exceed the limit of the necessary for preventing the dangerousness of the author.” Thereupon, the criteria will be the same, the non-freedom´s privative security measures cannot last longer than the punishment which would have been imposed if the subject had been declared criminally liable.
And we have to comment something more, because the subject subjected to internment into a mental hospital or into a special educative center, cannot leave them without the authorization of the ruling judge or court, according to the article 97. In other words, the procedure of the article 98 has to be followed, proposal of the Prison Oversight Judge at least annually, and only can cease the interment if either, it is agreed the cessation of the security measure of internment, this security measure of internment is substituted by another considered more adequate, or the security measure is suspended. This excludes any kind of exit permits, for later returning to the center of internment.
The second article which appears in the chapter dedicated to the application of the punishments is the art. 102, which says: “1. To the exempted of criminal liability according to the number two of the article 20 will be applied, if it is necessary, the measure of internment into a public or private center of dishabituation, duly accredited or homologated, or any other of the measures envisaged in the third point of the article 96. The interment cannot exceed the time which would have lasted the freedom´s privative punishment, if the subject had been declared criminally liable, and to that effect the judge or court will set this maximum limit in the sentence.
2. The subjected to this measure cannot leave the place without authorization of the ruling Judge or Court according to the envisaged in the article 97 of this Code.”
As we can see, when the exemption applied have been the second of the art. 20 CP, for having committed the crime under the effects of the drugs or as consequence of their withdrawal symptoms, the freedom´s privative security measure will be the internment into a center of dishabituation. In this case, the security measure has to be also necessary to protect the subject or the society from him, and the crime committed should be also punished with a freedom´s privative punishment. Otherwise, can be imposed any of the non-freedom´s privative measures of the article 96.3. The rest which we have commented in relation with the art. 101 is also of application.
The next article we have to comment is the article 103, which says: “1. To those which have been declared exempted of criminal liability according to the number third of the article 20, can be imposed, if it is necessary, the measure of interment into a special educative center or any other of the measures envisaged in the third point of the article 96. The internment cannot exceed the term which would have lasted the freedom´s privative punishment, if the subject had been declared criminally liable and, to that effect, the Judge or Court will set in the sentence this maximum limit.
2. The subjected to this measure cannot leave the place without authorization of the ruling Judge or Court according to the envisaged in the article 97 of this Code.
3. In this case, the proposal to which is referred the article 98 of this Code must be done at the end of each academic year.”
According to the article 103, when the exemption applicable is for, suffering an alteration in the perception since the birth or infancy which has gravelly altered the the consciousness of the reality, the adequate security measure, if it was necessary and the crime committed was punished with a freedom´s privative punishment, would be the internment into a special educative center. Otherwise, may be enough with any of the other non-freedom´s privative security measures of the article 96.3 of the CP. All we have already seen in relation with the art. 101 and the art. 102 is also applicable to the art. 103, but besides it has a particularity, the Prison Oversight Judge´s proposal is not made annually, but it has to be made at the end of each academic year.
The last article we have to comment is the article 104, which is aimed to those special cases where is not possible to apply a total exemption, for lacking any of the requisites needed for its application, and what is done is to apply the first attenuating circumstance of the art. 20, which has been denominated in some occasions as an incomplete exemption. The art. 104 CP says: “1. In the cases of incomplete exemption in relation with the numbers 1º, 2º and 3º of the article 20, the Judge or Court may impose, besides the corresponding punishment, the security measures envisaged in the articles 101, 102 and 103. Nevertheless, the measure of internment is only applicable when the punishment imposed is a freedom´s privative punishment and its duration cannot exceed the punishment envisaged by the Code for the crime. For its application will be observed the stated in the article 99.
2. When is applied a measure of internment of the envisaged in above point or in the articles 101, 102 and 103, the ruling judge or court will communicate to the public prosecution, with enough time, the proximity of its end, to the effects of the envisaged in the additional disposition of this code.”
In the article 104 is established the possibility of imposing a security measure, besides the corresponding punishment for the crime committed. In these cases, the sentence which imposes the punishment has to consider applicable the first attenuating circumstance of the art. 21 for any of the three first exemptions of the art. 20, what will have beneficial effects upon such punishment, since it will be reduced in one or two degrees depending on the number and the class of the requisites which lack or concur (art. 68 CP). The article 104 is not clear, but should be applicable both the freedom´s privative security measures specifically established for each of the cases of exemption established in the art. 101, 102 and 103, and the rest of non-freedom´s privative security measures of the art. 96.3 CP. As always, the requisites to be able to impose the punishment of internment will be its necessity and besides, that the crime committed is punished with a freedom´s privative punishment, although the requisite of necessity is also applicable to any other security measure for implicitly is included in the second of the requisites mentioned in the first point of the art. 95, “That from the fact and the personal circumstances of the subject may be deduced a forecast of future behavior which reveals the probable commission of new crimes.”
To the article 104, is also applicable what we have already seen in the art. 101 in relation to the maximum duration of the security measures. However, in this article we have to talk about new things, because when a freedom´s privative security measure and a freedom´s privative punishment concur, the rules of the art. 99 must be followed for their fulfillment, first will be fulfilled the measure of internment and later the punishment, being used the days which have been fulfilled of security measure for compensating what is still to be fulfilled of the punishment. Lifted the security measure, the freedom´s privative punishment should be fulfilled, except when, the ruling judge or court consider that the fulfillment of the punishment may have adverse effects over the results obtained with the security measure, in such cases what is left to be fulfilled of the punishment may be suspended or any of the measure contained in the art. 96.3 can be applied.
It is not said anything in the article 104 regarding it, but it is understood that the subjected to the freedom´s privative security measure cannot leave the place of internment and that in this case, are not applicable the cases which authorize to modify, lift or suspend the security measure of the art. 97 according to the procedure of the art. 98, to allow him to leave it. The art. 99 says that, lifted the security measure the rest of the punishment will be fulfilled, thereupon the lifting of the security measure for any circumstance will only suppose the imprisonment of the subject.
With respect to the causes for lifting the security measure, it is not said anything in the art. 99, we have commented it before, we suppose that this causes are, that the mental illness or the addiction which motivated it disappear, or that, the term for which the security measure was imposed has elapsed, although is this last case, we have the doubt, if in the practice the security measure is agreed for less time than the punishment or they are agreed for the same time.
At the end, the article 104 adds that, when a measure of internment of the articles 101, 102 o 103 is applied, the ruling judge or court must communicate to the public prosecution, with enough time the proximity of its fulfillment for allowing to him to request the declaration of incapacity before the civil jurisdiction, if it is necessary.
According to the first additional disposition mentioned in this second point of the art. 104, the declaration of incapacity can be only requested for the first or third motive of exemption of the article 20, in other words, for having been committed the criminal infringement under the influence of a psychic anomaly or alteration or for suffering an alteration in the perception since the birth or infancy. In this point we have to add that, when the measure of internment has been exhausted, as consequence of the application of a security measure, as consequence of having committed a crime, this does not mean that the subject will recover the freedom if the public prosecution request the declaration of incapacity, for lifted the security measure if the mental illness is enough grave, the logical will be that the internment according to the civil rules is also requested (art. 763 of the Spanish Civil Procedure Act).
– The non-freedom´s privative security measures:
As we have already seen, the non-freedom´s privative security measures are the enumerated in the article 96.3 CP, in particular: 1ª) The professional disqualification; 2ª The expulsion from national territory of the foreigners who do not legally reside in Spain; 3ª The watched freedom; 4ª The family custody; 5ª The privation of the right of driving motor vehicles or mopeds, and; 6ª The privation of the right to the ownership or carrying of arms.
The first three have their own article regulating their application, the professional disqualification the art. 107, the expulsion from national territory of the foreigners who do not legally reside in Spain the article 108, and the watched freedom the article 106, for the rest we have to attend to what is said by the article 105 that says: “In the cases envisaged from the articles 101 to 104, when is imposed a freedom´s privative security measure or during the execution of it, the Judge or Court may reasonable impose one or various of the following measures. They must also impose some of these measure in the rest of the cases envisaged in this Code.
1. For a term which does not exceed the five years:
a) Watched freedom.
b) Family custody. The subjected to this measure will submitted to the care and vigilance of the member of his family that is designated and who accepts the custody, who will exercise it in relation with the Prison Oversight Judge and without affecting to the laboral or school activities of the subjected to the measure.
2. For a term of up to 10 years:
a) Watched freedom, when expressly is envisaged in this Code.
b) The privation of the right to the ownership or carrying of arms.
c) The privation of the right of driving motor vehicles or mopeds.
For agreeing the obligation of observing some of the measures envisaged in this article, as well as for concreting such obligation when by the law is obliged to impose it, the ruling Judge or Court must assess the reports emitted by the doctors and professionals in charge of assisting the subjected to the security measure.
The Prison Oversight Judge or the services of the corresponding Administration will report to the ruling Judge or Court.
In the cases envisaged in this article, the ruling Judge or Court will agree that the services of social assistance provide the assistance which legally correspond to the subjected to the non-freedom´s privative security measure.”
From the reading of the art. 105 we have to understand that, the watched freedom, the family custody, the privation of the right to the ownership or carrying of arms and the privation of the right of driving motor vehicles or mopeds, may be imposed when is agreed a security measure by virtue of the articles 101, 102, 103 or 104, although as we have already seen when we have talked about those articles, they can also be imposed independently when the are regarded necessaries, without the necessity of being agreed as a supplement of a freedom´s privative security measure. Besides, such non-freedom´s security measures can be also imposed in the cases expressly envisaged in the CP, which in the practice only happens with the watched freedom.
In the art. 105 are divided the security measures into two different groups, depending on the maximum term which can be agreed. The watched freedom when is not expressly established in the CP for some crime, and the family custody, will have a maximum duration of five years. Whereas, the watched freedom when is expressly envisaged for some crime in the CP, the privation of the right to the ownership or carrying of arms, the privation of the right of driving motor vehicles or mopeds, will have a duration of up to 10 years.
– The watched freedom:
The watched freedom is a non-freedom´s privative security measure which may be imposed either independently by virtue of the envisaged by the article 101, 102, 103 and 104, or as a supplement of a freedom´s privative security measure by virtue of the article 105, or as a mandatory condition along a freedom´s privative punishment when it is expressly envisaged in the CP.
The scope of the security measure of watched freedom, is established in the article 106 CP, which says: “1. The watched freedom will consist in the submission of the convicted to judicial control through the fulfillment by his part of any of the following measures:
a) The obligation of being always reachable through electronic means which allow his constant following.
b) The obligation of periodically going to the place that the Judge or Court establishes.
c) To communicate immediately, in the maximum term and through the means that the Judge or Court establishes to that effect, each change of his place of residence or job.
d) The prohibition of being absent of the place where he resides or of a determined territory without authorization of the Judge or Court.
e) The prohibition of being close to the victim, or of those of his family or other persons that the Judge or Court determines.
f) The prohibition of communicating with the victim, or with those of his family or other persons that the Judge or Court determines.
g) The prohibition of going to determined territories, places or establishments.
h) The prohibition of residing in determined places.
i) The prohibition of carrying out determined activities which can offer or facilitate to him the occasion for committing new crimes of similar nature.
j) The obligation of participating in formative, working, cultural, sexual education or another similars programs.
k) The obligation of following external medical treatment, or of submitting to a periodic medical control.
2. Without prejudice of the envisaged in the art. 105, the Judge or Court must impose in the sentence the measure of watched freedom for its later fulfillment of the freedom´s privative punishment imposed always that it is expressly stated by this Code. In this cases, at least two months before the extinction of the freedom´s privative punishment, to allow the security measure to be initiated in this moment, the Prison Oversight Judge, by the procedure envisaged in the art. 98 will make the proper proposal to the ruling Judge or Court, which, according to such procedure, will set, without prejudice of the established in the art. 97, the content of the measure setting the obligations or prohibitions enumerated in the first point of this article which have to be observed by the convicted.
If this has been for various freedom´s privative punishments which have to be successively fulfilled, the envisaged in the above paragraph will be understood referred to the moment in which concludes the fulfillment of all of them.
Likewise, the punished to whom have been imposed for different crimes another security measures that, due to the content of the obligations or prohibitions established, cannot be simultaneously executed, will fulfill them successively, without prejudice that the Judge or Court may exercise the faculties attributed by the following point.
By the same procedure of the article 98, the Judge or Court may:
a) To modify the obligations or prohibitions imposed.
b) To reduce the duration of the watched freedom or even to put an end to it in accordance with the positive forecast of social rehabilitation which regards unnecessary or inconvenient the continuity of the obligations imposed.
c) To leave without effect the measure when the circumstance described in the above letter takes place in the moment of concretion of the measures which are regulated in the number 2 of this article.
In the case of fulfillment of one or various obligations the Judge or Court, taking into account the concurring circumstances and by the same procedure indicated in the above numbers, may modify the obligations or prohibitions imposed. If the failing to comply is grave and reiterated, revealing the unwillingness to submit to the obligations imposed, the Judge, will take, besides, testimony for an alleged crime of the article 468 of this Code.”
We can see in the article 106 that, the security measure of watched freedom is flexible, it is formed at the same time by another eleven measures which can be jointly imposed or separately. Such measures are akin to the right´s privative measures of the art. 39 CP, but are even more akin to the obligations which may accompany the suspension of the punishment or the maintenance of the conditional release of the art. 83 CP.
In the case that, the measure of watched freedom has to be imposed along with a punishment, as consequence of being this established by some article of the CP, the Prison Oversight Judge is obliged to present a proposal to the ruling Judge or Court at least two months before the extinction of the freedom´s privative punishment. The ruling Judge or Court attending to the content of the proposal presented by the Prison Oversight Judge, and having previously heard the person who will be subjected to the measure, the public prosecution, the rest of the parties, and the victims of the crime which have requested it, will set the content of the measure of watched freedom determining which obligations of the first point of the article 106 must to be fulfilled, or even they can leave without effect the measure of watched freedom (art. 106.3.c CP).
Likewise, by the procedure of the article 98 (the one we have just seen in the above paragraph, but with the difference that once the measure of watched freedom has been imposed, the Prison Oversight Judge should present his proposal in the term established in the first point of the article 98, in other words, at least annually) can be, modified the obligations and prohibitions imposed, reduced the duration of the watched freedom or even ended it (art. 106.3 CP).
When the obligations which form part of the measure of watched freedom are nor fulfilled, by the same procedure indicated above, the Judge or Court may modify the obligations or prohibitions imposed, and even if those failures to comply are grave and reiterated, may take testimony for an alleged crime of breach of sentence of the article 468 CP (art. 106.4 CP).
– The disqualification:
The disqualification and the substitution of the security measure, are the two security measures which are not mentioned in the art. 105, therefore, they do not follow and are not bound by the cases and temporal limitations established in it.
In the art. 107 is where is regulated the disqualification, which says: “The judge or court may reasonably agree the measure of disqualification for the exercise of determined right, profession, trade, industry or commerce, charge or job, for a term from one to five years, when the subject has committed with abuse of such exercise or in relation with it, a fact typified as a crime, and when from the assessment of the concurring circumstances may be deduced the danger of committing the same crime or another similar, always that is not possible to impose to him the corresponding punishment for being in any of the scenarios envisaged in the numbers 1º, 2º or 3º of the article 20.”
Therefore, the disqualification for exercising determined right, profession, trade, industry, commerce, charge or job, may be imposed when the subject has made use of such right, profession or trade for committing a crime, there exist a risk of committing the same crime or another similar, and the subject is unfit to plead for being in any of the cases of exemption regulated in the first three numbers of the art. 20. In this way, is implicitly excluded the possibility of imposing the disqualification when the subject has been declared partially exempted of criminal liability, in other words, when has been applied to him the attenuating circumstance or incomplete exemption of the first number of the article 21, hence, the disqualification can be only imposed in any of the cases regulated in the art. 101, 102 or 103, but no the 104, this has another consequence, the disqualification cannot be imposed as a security measure which accompanies the fulfillment of another punishment.
– The substitution of the security measure:
The scenario of substitution of a security measure is limited to the foreigners not legally residing in Spain, this is an important difference with respect the substitution of the punishment of imprisonment of the art. 89, which is reserved to the foreigners either legally or not legally residing in Spain.
There exist more differences between both, the substitution of the punishment of imprisonment can be imposed when duration of the punishment exceeds the year, conversely for the security measure is not established a temporal limit. Besides, in the case of the punishment of imprisonment the expulsion from the Spanish territory is for a term between five and ten years, while for the security measure this term will always be of ten years.
In the art. 108 is not established either, the possibility that due to the roots of the foreigner in Spain, the expulsion is not carried out and in its place the security measure is fulfilled. Another important difference is in relation the consequences of the breaching of the expulsion agreed, the foreigner which fails to comply with the expulsion agreed as substitution of a punishment of imprisonment, must fulfill the punishment which was substituted, except some exceptions, and if he is surprised in the border will be immediately expelled, on the contrary, the foreigner not legally residing in Spain which returns to Spain before the term of 10 years imposed as a substitution of a security measure, will be again expelled from the Spanish territory, at least this is what is understood from the third point of the article 108, which does not talk about fulfillment of the measure of security agreed, and does not distinguish between who has been surprised in the border from who has entered again into the Spanish territory after having been expelled.
In particular the art. 108 says: “1. If the subject is a foreigner not legally residing in Spain, the judge or court will agree in the sentence, after hearing him, the expulsion from the national territory as substitution of the security measures applicable to him, except when the judge or court, after hearing the pubic prosecution, exceptionally and motivating it, considers that due to the nature of the crime the best is its fulfillment in Spain.
The expulsion agreed will suppose the closing of any administrative procedure which has as object the authorization for residing or working in Spain.
In the case that, agreed the substitution of the security measure by the expulsion, this cannot be carried out, the security measure will be fulfilled.
2. The foreigner cannot return to Spain in the term of ten years, from the date of his expulsion.
3. The foreigner who tries to breach a judicial decision of expulsion and prohibition of entering to which are referred the above points will be rejected by the government authority, calculating the term of expulsion from the beginning.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com