Within the Title I of the Book I of the Spanish Criminal Code (CP) we find the modifying causes of the criminal liability, they are gathered in three consecutive chapters, the Chapter II “Of the causes which exempt of the criminal liability”, the Chapter III “Of the circumstances which mitigate the criminal liability” and the Chapter IV “Of the circumstances which aggravate the criminal liability”. To these three chapters we have to add a fourth, the Chapter V “Of the mixed circumstance of relationship” which as is own name indicates works either as a mitigating factor or as an aggravating factor depending on the legal good affected.
The points into which I have divided the analysis of the aforementioned chapters are: The criminal liability of the minor, the causes which exempt and mitigate the criminal liability, the causes which aggravate the criminal liability, the mixed circumstance of relationship, the effects upon the punishment, civil liability, and other exemptions expressly envisaged in the CP.
– The criminal liability of the minor:
The Chapter II, into which we find the causes which exempt the criminal liability, begins with and art. 19 CP which says: “The minors under eighteen years old will not be criminal liable according to this code”. Hence we have to understand, and more if we take into account where is placed the art. 19 alongside the rest of the causes which exempt of the criminal liability, that the minors under eighteen years old are exempted of it. Nevertheless this is not wholly true, the own art. 19 later adds: “When a minor of such age commits a crime he may be liable in accordance with the law which regulates the criminal liability of the minor.”
The law which regulates the criminal liability of the minor is the Organic Law 5/2000, of 12 January , regulating the criminal liability of the minors (LO 5/2000). In the section I of the Exposition of Motives of such law, it is stressed the importance which in the ambit of the minors has to be given to the reintegration of them into society, something which with general character and for all sorts of prisoners is already established in the art. 25.2 of the Spanish Constitution (CE) as a fundamental right. Although it is also true that, with regard to the minors its importance is accentuated due to the early age in which the crime is committed, something that increments the possibilities of a absolute reintegration into society thanks to a strong educative program. Concretely the LO 5/2000 says in the first section of its exposition of motives: “Firstly, firmly consolidating the principle according to which the criminal liability of the minors has, distinguishing it from that of the adults, a fundamental character of educative intervention which transcends all the aspects of its legal regulation and which determines important differences between the sense and the procedure of the punishments in one and another sector, without prejudice of the common guarantees of all defendant”.
Other of the points which has to be taken into account is that, the LO 5/2000 is not of general application to all the minors under eighteen years old, to the top limit of eighteen years old established by the art. 19 CP, we have to add a lower limit, the fourteen years old. Therefore, the LO 5/2000 only will be of application to the minors between fourteen and eighteen years old, those who have not reach such age are wholly exempted of criminal liability, but careful, because this does not include the civil liability which may derive from the crime (art. 1902 of the Spanish Civil Code), of which either the parents or the guardians of the minors has to respond (art. 1903 of the Spanish Civil Code), but in a civil procedure.
The LO 5/2000 also distinguishes two groups of different ages, from fourteen to sixteen and from seventeen to eighteen, we all know that at that ages the maturing of a subject both physical and psychological is really fast and there exists big differences between minors which are separated only by a couple of years. The different treatment given by the law to both groups consists in the severity with which it is applied, there exists an specific aggravation for the crimes committed with violence, intimidation or danger to the persons when they are committed by minors older than sixteen years old.
Lastly, what is said by the art. 19 CP should be completed with the art. 69 CP, which allows the application of the LO 5/2000 to those under the age of twenty-one years old who commit a crime, when a judge agrees it attending to the personal circumstances and the degree of maturity of the author, and the nature and gravity of the facts.
– The causes which exempt and mitigate the criminal liability:
Although the CP divides them and each one has its own chapter, I have decided to include them in the same epigraph as consequence of one characteristic which they share. Nevertheless, it is not less true that, there exists also a big difference between them, the causes which exempt the criminal liability of the art. 20 impede that the author of a fact typified as a crime and which has reached the legal age (art. 19.1 CP) may be regarded as criminal liable of it, on the contrary, the circumstances which mitigate the criminal liability only have effects upon the intensity with which will be applied the punishment on whom have committed the typified fact (art. 66 CP).
First of all, let us see that common characteristic which has made me to include them in the same section. In both cases, for the exemptions and for the mitigating factors, it will be a duty of the party who alleges them to prove their existence, in other words, it will be a duty of the defendant. It is usual to find in the jurisprudence coming from the Spanish tribunals, the mention that to both the exemptions and the mitigating factors are not applicable the principles of presumption of innocence and in dubio pro reo, if to the accusation corresponds through the practice of the proof during the procedure to prove the liability of those who are presumed not guilty, to the defendant corresponds to prove by means of the practice of the proof during the oral trial that concur any of the causes of exemption or mitigation of his liability. For example, the Caceres Provincial Court´s sentence 1128/2022 says: “Its condition as hampering circumstance of the accusatory criminal claim impose a duty of proof to the accused to whom supposedly are applicable. It supposes that any proving deficit in this ambit cannot be solved in favor of the accused, but in favor of the total criminal liability on account of the lacking or the proving deficiency. Thus, ( SSTS de 29-10-2008, número 701-2008; y de 06-11-2014, número 708-2014): 1º) for the exemption and mitigating factors does not rule the presumption of innocence nor the principle in dubio pro reo; 2º) the deficiency of data in order to asses the presence of the claimed circumstance does not determine its appreciation; and 3º) the facts which are part of the exemption or the mitigating factor should be as proven as the main fact.”
Another of the features which shows their narrow relation and not less important than the aforementioned, is that an exemption can be transformed into a mitigating factor when all the requisites to completely exempt the criminal liability does not concur (art. 21.1º CP), in other words, when are not met all the elements which are described for each of the exemptions in the art. 20 CP. For example, the second section fo the art. 20 establishes that are exempted of criminal liability those who at the moment of committing a crime are either “under state of total intoxication” or “under the influence of withdrawal symptoms”. In order that this exemption may be assessed by a Judge or Tribunal as such, either the intoxication or the withdrawal symptoms suffered by the author of a crime, should be of such significance, as to completely impede to him understanding the criminal relevance of his behavior, in other words, his volitive and intellectual capacities have to have been annulled altogether during the commission of the crime. Otherwise, in case that the Tribunal or Judge does not regard that the intoxication for drugs or the withdrawal symptoms has not reached the necessary intensity for wholly annulling the subject, the concurrence of such circumstance may be taken into account as a mitigating factor.
We have said at the beginning that, there exists also a big difference, that in the case of the exemptions those on whom concur cannot be declared criminal liable, while in the case of the mitigating factors is possible, they will be criminal liable but with a lessened liability. Notwithstanding, those who commit a crime concurring an exemption can also be subject to measures which affect to their liberty, when the concurring exemption is one of the first three enumerated in the art. 20 CP: Who commit a crime under the effects of a psychic anomaly or alteration; either under the withdrawal symptom or a grave intoxication of drugs; or has an altered perception of the reality since his birth. In either case, all the imposition of all security measure should be also preceded by a firm sentence, it supposes that a criminal procedure, an oral trial where have been practiced the proof which connect him with the crime should take place (art. 3.1 CP).
It is true that, I have decided not to lose the time explaining each of the exceptions and mitigating factors, I think that the law comply well with its function and little has to add the jurisprudence I have found. But I feel obliged to explain, although not in detail, one of them, in the case of the mitigating factor of an extraordinary or undue delay in the criminal procedure, such delay should be appreciated with regard to the procedural acts which take place between the imputation (art. 775 of the Spanish Criminal Procedure Act) or the committal for trial (art. 384 of the Spanish Criminal Procedure Act), and the oral trial.
For the sake of clarity, I have translated the art. 20 and 21 of the CP:
Article 20:
The exempted of criminal liability:
1º Who at the time of committing the crime, as consequence of any psychic anomaly or alteration, cannot understand the unlawfulness of the fact or to act according to such understanding.
The transitory mental illness will not exempt the punishment when it has been provoked by the subject with the purpose of committing the crime or has envisaged its commission or should have foreseen it.
2º Who at the time of committing the crime is in the state of total intoxication for the consumption of alcohol, toxic drugs, narcotics, psychotropic substances or others which produce similar effects, always that it has not been sought with the purpose of committing it or its commission has not been foreseen or its commission should have been foreseen, or who is under the influence of the withdrawal symptoms, as consequence of his dependence to such substances, which impede to him understanding the unlawfulness of the fact or acting according to that understanding.
3º Who, for suffering alterations in the perception since his birth or since his infancy, has got gravely altered the consciousness of the reality.
4º Who acts in the defense of his person or own or alien rights, always that the following requisites are met:
Firstly. Unlawful aggression. In the case of defense of the goods it will be understood unlawful aggression the attack to them which constitute crime and put them in grave danger of deterioration or imminent loss. In the case of the defense of dwelling or its rooms, it will be understood as unlawful aggression the undue entrance to it or them.
Secondly. Rational necessity of the means employed to impede it or avoid it.
Thirdly. Lacking of enough provocation for the part of the defending party.
5º Who, in the state of necessity, for avoiding an own wrong or alien harms a legal good pertaining to another person or infringes a duty, always that the following requisites are met:
Firstly. The harm caused cannot be worse than the harm which is being avoided.
Secondly. The situation of necessity cannot be willingly provoked by the subject.
Thirdly. The necessitated cannot have, for his trade or position, the obligation of sacrificing himself.
6º Who acts on account of an insurmountable fear.
7º Who acts fulfilling a duty or exercising a lawful right, trade, or position.
In the first three exemptions will be applied, in its case, the security measures envisaged in this Code.
Article 21:
The mitigating factors are:
1ª The causes expressed in the above chapter (article), when all the requisites to exempt the criminal liability are not met.
2ª When the guilty has acted as consequence of his grave addiction to the substances mentioned in the number two of the above article.
3ª Acting under the influence of causes or stimulus as powerful as to provoke a fit, blindness or another similar passional state.
4ª To have proceeded the guilty, before knowing that a criminal proceeding has begun against him, to confess the crime to the authorities.
5ª To have proceeded the guilty to repair the harm caused to the victim, or diminish his effects, in any moment of the procedure and before the oral trial.
6ª The undue or extraordinary delay of the criminal proceeding, always that it is not attributable to the own accused and it has not proportion with the complexity of the cause.
7ª Any other circumstance similar to the above.
– The causes which aggravate the criminal liability:
The causes which aggravate the criminal liability are gathered in the art. 22 CP. In their case, to prove that they concurred at the moment of the commission of the crime will be a duty of the accusation, for it, it will have make use of the proof practiced during the oral trial. Conversely to what happens with the causes of exemption and mitigating factors, here are applicable the principles of presumption of innocence and in dubio pro reo.
Regarding the treachery, it has been discussed whether it is applicable to the crimes against the sexual liberty, but the Spanish tribunals have decided that the wording of the precept has to be followed and it only applies as an aggravating factor in the crimes against the persons. Concerning the above, the Spanish Supremo Court said in its sentence of 11 January 2017: «Therefore its application is alien to the crimes agains the sexual liberty or indemnity which evidently protect the person as owner of the rights and values mentioned but not specifically to his life or his physical integrity”.
Like with the exemptions and mitigating factors, I have translated the art. 22 CP:
Article 22:
The aggravating circumstances are:
1ª To execute the fact with treachery.
There is treachery when the guilty commits any of the crimes against the persons employing in the execution means, modes or ways which directly of especially tend to assure it, without the risk which may suffer his person as consequence of the defense of the offended.
2º To execute the fact by means of disguise, with abuse of superiority or taking advantage of the circumstances of the place, moment, or help of other persons which weaken the defense of the offended or ease the impunity of the criminal.
3º To execute the fact by price, reward or promise.
4º To commit the crime for racist, anti-semitic motives or other class of discrimination referring to ideology, religion or beliefs of the victim, the ethnic, race or nation to which he is part, its sex, sexual identity, reasons of gender, the illness which he suffers or his handicap.
5º To willfully and inhumanely increase the suffering of the victim, causing to him unnecessary sufferings for the execution of the crime.
6º To act with abuse of confidence.
7º To make use of the public character who has the guilty.
8º To be recidivist.
There is recidivism when, at the moment of committing the crime, the guilty has been convicted for a crime comprehended in the same title of this Code, always that it is of the same nature.
To the effects of this number will be taken into account neither the criminal records which has been canceled or which should be, nor those which correspond to minor offences.
The firm convictions of judges and courts imposed in other States of the European Union will produce the effects of recidivism, except when the criminal record has been canceled or can be cancelled according to the Spanish Law.
– The mixed circumstance of relationship:
We find it in the art. 23 CP. It is known as the mixed circumstance or relationship, because in some cases it will work as an aggravating factor and in others as a mitigating factor. It is an aggravating factor in the attacks of personal nature and a mitigating circumstance in the crimes against the patrimony. To corroborate it let us make use of the Spanish Supreme Court´s sentence 2787/2022: “This is explained, for example, in our resolution number 423/2018 of 15 March, when it observes: “The art. 23 CP always has created the problem of properly delimiting the crimes in which it should act as an aggravating factor or as a mitigating factor. The jurisprudence of this Chamber has attributed, in general, the mitigating character in the patrimonial crimes and aggravating in the attacks of personal nature, it without prejudice that owing to the wording in which it is expressed there exist infringements where the relationship is indifferent, even existing the familiar relationship, there is no higher or lesser punishment for the crime committed ( STS 492/2011, de 8 de junio)>>.”
To the above we have to add that, the Spanish jurisprudence has excluded the application of this aggravating factor in the ordinary relationships of engagement of short duration or family life. We can see it in the Albacete Provincial Court´s sentence 364/2002: “This broadness, and doble use, make improper to extend with general character to the ordinary relationships of engagement, of little duration and without family life, the application of the mixed circumstance of relationship, which besides will remain into force even after the relationship has ended.
A proof of it is that the own Legislator distinguishes the ambit of the aggravating factor for the persons having a similar relationship to the matrimonial, between the art. 23 (mixed circumstance of relationship) and the art. 153 and concordant (gender violence), expressly extending the aggravating circumstance to cases without family life in the art. 153 and concordant, and omitting this extension in the art. 23, while in the mixed circumstance of the art. 23 is demanded an stability in the relationship, which is omitted in the art. 153 and concordant, for gender violence”.
Here you can find the art. 23 CP translated:
Art. 23:
It is a circumstance which can mitigate or aggravate the criminal liability, depending on the nature, the motives and the effects of the crime, either being or having been the offended spouse or person who is or has been bound for similar relationship, or being ascendancy, descendant or brother for nature or adoption of the aggressor or its spouse or live-in lover.
– The effects upon the punishment:
If the defendant proofs during the oral trial that some mitigating factor concurs, or the accusation proofs the existence of an aggravating factor, the punishment should be modulated according to the rules established in the art. 66 CP. Except when, the mitigating or aggravating factors have been taken into account by the legislator for punishing or typifying the crime, in other words, when they are inherent to the crime, as much as for being necessary for its commission (art. 67 CP).
Logically, the existence of a mitigating factor will suppose a punishment less severe, and conversely, the existence of an aggravating factor, a punishment more severe according to the range envisaged for the CP for each crime.
– Civil liability:
The art. 109 CP says: “1. The execution of a fact typified by the law as a crime, obliges to repair, in the terms envisaged by the laws, the damages caused by it. 2. The harmed can choose, always, for demanding the civil liability before the civil jurisdiction.”
And the art. 112 of the Spanish Criminal Procedure Act (LECrim): “Only exercised the criminal action, will be understood also the civil, except when the harmed or offended renounce to it, or expressly reserve it for exercising it after the termination of the oral trial, if it was necessary.
If was only exercised the civil action which born from a crime which can only be prosecuted by virtue of lawsuit, the criminal action will be regarded extinguished.”
Therefore, the execution of fact typified as crime obliges to the reparation of the damages caused, and in the criminal procedure when through firm sentence is established the criminal liability of a crime, will also be established the civil liability, except when the offended or/and harmed by the crime has reserved the exercising of the civil action before the civil jurisdiction.
In the cases that the criminal liability has been mitigated, there is no doubt that the mitigating factor or factors will not exempt the civil liability derived by the crime. But, what happens in the cases where an exemption has been appreciated by the judge or court? In these cases, the exemption of criminal liability will not affect the civil liability derived from the crime either (art. 118 CP), except when the exemption if for concurring the last cause of the art. 20 CP, to act fulfilling a duty or exercising a lawful right, trade, or position.
– Other cases of exemption expressly envisaged in the CP:
Not all the causes of exemption of the criminal liability are gathered in the art. 20 CP, there exists others scattered along this Code. We can mention at least three: The envisaged in the art. 16.2 CP for the cases in which who has started the commission of a crime willingly desists and avoids its results; that of the art. 183 quater CP, for the crimes of abuses and aggressions to minors of sixteen years old, which excludes the criminal liability when there has been the minor´s consent and the author of the crime is a person close to the age of the minor or with similar degree of maturity; and the one which appears in the art. 268 CP, which exempts of criminal liability, being only subject to the civil, the spouses who are not legally or in fact separated or in a legal process of separation, divorce or nullity of their marriage and the ascendants, descendants and brothers for nature or adoption, as well as the akin in first degree in the live together, for the patrimonial crimes which they cause between them, always that violence or intimidation or abuse of the vulnerability of the victim, either for his age or handicap, does not concur.
I have found examples of Spanish jurisprudence which discuss on the moment in which can be appreciated the exemption of the art. 268 and whether it can be appreciated ex oficio. Well, according to this jurisprudence there is no problem for appreciating this exemption during the stage of investigation of the cause or even during the intermediate stage, something which would determine the dismissal of the cause for being exempted of criminal liability the committed for trial as authors, accomplices or accessories after the fact (art. 637.3º LECrim). Likewise, there is no problem either, for appreciating ex officio by the judge or court this exemption during any moment of the cause. To corroborate it, we can use these two examples:
Barcelona Provincial Court´s sentence 562/2022: “The Spanish Supreme Court’s sentence 42/2006, of 27 January, remembers even the possibility of application ex officio of the mentioned exemption (…) “, a sentence from which we can extract the following:” (…) It is known that the courts can hear ex officio and in fact they hear of the cases of not punishability of a behavior for the admission of an acquittal excuse or of the prescription, although neither of these motives have been alleged. And not only this, the doctrine of this chamber has approved the estimation of an exemption or mitigating factor not allege (…) always that from the proven facts has derived the presence of a mitigating factor or an exemption, not formally allege, but present in the proven facts of the sentence.”
León Provincial Court´s sentence 711/2022: “We remembered too that this Chamber has admitted the possibility that the acquittal excuse produce its effects already in the stage of investigation or in the intermediate stage, through the resolution of dismissal by virtue of the art. 637.3 LECrim, always that are enough proven the basic requisites which require its application ( STS 91/2006, de 30 de enero); as well as that once agreed the acquittal for the crime of the accusation, it is not possible a pronouncement about the civil liability which has derived from it, being necessary to go to the civil jurisdiction in order to obtain the proper compensation ( SSTS 172/2005, de 14 de febrero, o 430/2008, de 25 de junio). Thereby, the exemption of the criminal liability, when its requisites are clearly proven and are not questioned, does not authorize the continuation of the criminal procedure with the only finality of establishing the civil liability, except in the cases expressly envisaged by the law (in the same sense the STS. 1288/2005, of 28 Octuber).”
This last sentence is also interesting for what it says at the end. If the exemption of criminal liability is appreciated by the examining magistrate during the stage of investigation, something which can only happen in the Abbreviated Procedure (art. 757 LECrim), for in the Ordinary Procedure is the Court that will try the cause which decides about the dismissal once the investigation is concluded and the intermediate stage has been initiated (art. 632 LECrim), there cannot be a pronouncement about the civil liability, for the opening of the oral trial is not justified only for establishing the civil liability. Therefore, only when the exemption of criminal liability is appreciated at the end of the procedure by sentence, may it be accompanied of the pronouncement of civil liability, always that the offended or harmed has not reserved it for the civil jurisdiction (art. 109.2 CP).
A doubt can arise in us on, whether what we have just seen for the exemption of the art. 268 CP, regarding the moment in which it can be appreciated, for whom and its consequences upon when can be tried the civil liability, affects to the rest of exemptions mentioned until now. Being sincere, I have not found nothing concerning it, but in my opinion there has not to be any problem for being also of application, but remember what we said at the beginning of this writing, if the exemption is one of the first three of the art. 20, the imposition of a security measure necessarily necessitates an oral trial finished with a sentence, therefore, if a security mesure is necessary and oral trial will be too, this does not mean that always that one these exemptions is applied has to be imposed a security measure, and always there must be an oral trial.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com