“Of the usurpation of civil state” is the title of the Chapter IV, of the Title XVIII, of the Book II, of the Spanish Penal Code (CP). It is within the Title XVIII, thus, we continue treating the matter of the falsehoods, being the legal good affected the faith, the security and the confidence in the legal transactions, to which we should add, a legal good of personal character, the civil state of the persons.
Although it is more or less evident, we must distinguish the crime of usurpation of civil state from the crime of usurpation of the article 245 and following, for the latter is included in the Title XIII along the rest of the crimes against the patrimony and the socioeconomic order, hence, both have different ambits of application altogether.
It is a short chapter, it is formed by only one article, the article 401, which is the one that we are going to analyze.
– Article 401:
Let us first read this article 401:
“Article 401.
Whoever usurps the civil state of another person shall be punished with the punishment of imprisonment from six months to three years.”
When we start reading the precept, we soon realize that it is a common crime, for the fact that it can be committed by anyone.
The forbidden behavior consists in usurping the civil state of another person. Let us take our official dictionary. According to this dictionary, the second meaning of the verb “to usurp” is: “to arrogate to yourself the dignity, employment or trade of another, and to use them as if they were yours.”
And according to the same dictionary, the civil state is: “Condition of a person in relation with his birth, nationality, affiliation or matrimony, which is reflected in the civil registry and delimit the own ambit of power and responsibility which the law recognizes to the natural persons.”
More or less, we already know in what consists the forbidden action. A private person must appropriate for himself, make use of it as if it were his, of the identity of a person, but understood in the more general term, appearing in all the legal transactions as if he were another person.
Let us now underpin our knowledge, with the help of doctrine and jurisprudence. Pay attention to this excerpt from the Provincial Court of Murcia´s sentence number 201/2013, of 27 March: “In order that the crime of usurpation may take place, it is necessary something more than the permanence, it is required that the usurpation must reach all the facets which integrate the human identity, thus the usurper appearing as the usurper as if he were that person for all intents and purposes. Consequently, there is not going to be crime of usurpation, when a person assumes an alien identity for carrying out some concrete and determined acts.”
Therefore, it is not enough with an occasional use of the identity of another person for understanding consummated the crime, nor for only some aspects of his civil state, it has to be full usurpation, besides being constant over time.
Both facets, the stable character of the criminal behavior and generality of act for which it is used, have serve to distinguish this crime from the crime of public use of supposed name, a crime which appeared in the CP of 1973. The Provincial Court of Murcia´s resolution number 1004/2023 help us to distinguish between both scenarios: “It is true that there are resemblances between both behaviors, but they differ in that the usurpation of civil state requires a real and effective existence of the person and persistence in the fiction with the ensuing effective exercise of the inherent faculties of other person; while in the public use of supposed name, however, the author limits himself to disguise his own identity but without attributing to himself another, nor subrogating himself, or trying it, in the legal family position of another person. Consequently, the crime of usurpation is not going to take place (nor any other, since the use of alien name has been decriminalized) when a person assumes an alien identity for carrying out some concrete and determined acts; without, on the contrary, being evidences the total and absolute supplantation of the identity of another person, for all the purposes which integrate such identity (or “civil state”, like the Penal Code denominates it).”
In relation with the civil behavior, and ending with it, we can conclude that, it is a crime of mere activity, therefore, which is going to be consummated as soon as the forbidden behavior is carried out, although, we cannot forget that a certain permanence over time of the action is also required. The Spanish Supreme Court´s sentence number 1045/2011, of 14 October says: “It is a crime of simple activity which does not necessarily require a harmful result and which entails the arrogation of the qualities of another person, verifying an authentic implantation of personality. The crime, therefore, is perfected with the carrying out of an usurping activity and ceases when the implantation concludes. The behavior of the agent requires certain permanence and is implicit the purpose of full usurpation of the global personality of the person affected.”
Let us now study the subjective elements of the crime. Like we have been able to observe, the precept is simple, from which we can assume that it is a malicious crime, in other words, there has to be a conscious act by the active subject, he must have the intention of executing the objective elements of the crime, to usurp the civil state of another knowing that this is a crime. However, there is more, the jurisprudence has demanded something more than this generic malice, the purpose of carrying out the usurpation for exercising the actions and rights of the supplanted person. This is what the Spanish Provincial Court of Murcia´s sentence number 201/2013, of 27 March says: “It is necessary that the supplantation has to be carried out for using the rights and actions of the substituted person. It constitutes, therefore, a requirement of this crime, a subjective element of it, which does not appear in the precept, that is the purpose of exercising rights and actions of the supplanted person.”
Pay attention to the fact that, this new requisite changes the nature of the crime, even contradicting the said by the Spanish Supreme Court. If the purpose of exercising the rights and actions of the supplanted person is required to the active subject, we have to consider it, as a crime of cut result or tendency, for an intention is required in the active subject, of whose materialization does not depend the consummation of the crime.
In any case, the Supreme Court also says that “The behavior of the agent requires certain permanence and is implicit the purpose of full usurpation of the global personality of the person affected.” Which is the same than saying that, from the permanence of the behavior we can draw the purpose of full usurpation of the civil state of another person in the active subject. How we denominate something does not matter, when all of us know the characteristic of which it is formed.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com