“The extinction of the criminal liability and its effects” is how is entitled, the Title VII of the Book I of the Spanish Criminal Code (CP). Title which is also divided into two chapters, a chapter I entitled “Of the causes which extinguished the criminal liability”, and a chapter II entitled “Of the cancellation of the criminal records.”
With this Title VII ends the Book I of the CP, and with it, the articles dedicated to the general norms which apply to the crimes that later we find regulated in the Book II. This last articles are in charge of regulating: the extinction of the criminal liability, the prescription of the crime and the punishment, and the cancellation of the criminal records. Herein we will follow the same division of matters, although I have seen myself obliged to add a point which is not dealt with in the articles which are not the object of commentary, the “Prescription of the civil liability declared in criminal firm sentence.”
– The extinction of the criminal liability:
The CP says in its article 5: “There is no punishment without malice or imprudence.” Such punishment, is what we understand as criminal liability derived from the crime and it can be of three kinds according to the article 32: freedom´s privative punishments, other right´s privative punishments and fine.
Therefore, the criminal liability will arise when is committed a fact typified as such by the CP, and for this there has been malice -the willful and conscious commission of a fact typified as a crime or knowing that the typical result will probably be the product of his action or omission-, or negligence -when there is a failure to comply with a duty of care legally demandable-.
Besides, the CP extends the criminal liability derived from the imprudent or willful crime to two kinds of subjects, the authors and the accomplices (art. 27 of the CP). The former will be “who commits a crime by their own, jointly or by means of another whom they use as a tool”, and the instigators and necessary cooperators (art. 28 CP). And the latter, differing with what happens with the necessary cooperator, who do not provide an essential element for the commission of the crime, but do provide something which eases its commission (art. 29 CP).
The extinction of the criminal liability suppose that, there has existed such liability, but due to the concurrence of one of the seven motives enumerated in the first chapter of the article 130 CP, this is extinguished. This feature makes us to easily differentiate the causes of extinction of the criminal liability of the art. 130 CP, from the causes of exemption of criminal liability of the art. 20 CP, where are mentioned the cases in which this criminal liability will never exist, as for example for committing the criminal infringement under the effects of a mental illness, under the effects of the drugs or as consequence of an insurmountable fear.
As we have mentioned, the causes of extinction of the criminal liability are enumerated in the art. 130, that for the sake of clarity, has been transcribed below.
“Article 130.
The criminal liability is extinguished:
1º For the death of the convicted.
2º For the fulfillment of the conviction.
3º For the definitive remission of the punishment, according to the points 1 and 2 of the article 87.
4º For the pardon of the government.
5º For the pardon of the offended, when either they are minor offences prosecutable at the request of the damaged or the law envisages it. The pardon has to be granted expressly before a sentence has been dictated, and the ruling judge or court must hear the offended by the crime before dictating it.
In the crimes against minors or handicapped persons with the need of special protection, the judge or courts, heard the Public Prosecution, may reject the efficacy of the pardon granted by the representatives of them, agreeing the continuation of the procedure, with the intervention of the Public Prosecution, or the fulfillment of the conviction.
In order to reject the pardon to which is referred the above paragraph, the judge or court must hear again the representative of the minor or handicapped person with the need of special protection.
6º For the prescription of the crime.
7º For the prescription of the punishment or the measure of security.
- The transformation, merger, takeover or split of a legal entity does not extinguishes its criminal liability, which will be transferred to the entity or entities in which is transformed, merged or absorbed and will be extended to the entity or entities which result of the split. The Judge or Court will be able to moderate the transferring of the punishment to the legal entity according to the proportion which the original legal entity liable of the crime has with it.
The disguised dissolution or merely apparent of the legal entity does not extinguish the criminal liability. It will be regarded that in any case there exists disguised dissolution or merely apparent of the legal entity when its economic activity continues and the substantial identity of the clients, suppliers and employees or the most relevant part of all of them is maintained.”
Thereby, the seven causes of extinction of the criminal liability are: 1º For the death of the convicted; 2º For the fulfillment of the conviction; 3º For the definitive remission of the punishment, according to the points 1 and 2 of the article 87; 4º For the pardon of the government; 5º For the pardon of the offended, when either they are minor offences prosecutable at the request the damaged or the law envisages it, and 7º; For the prescription of the punishment or the measure of security.
The first of the causes mentioned is evident, the death of the convicted will suppose the extinction of the criminal liability due to the lack of a subject upon which can be applied the punishment derived from the crime.
The second cause is a consequence of the exhausting of the punishment, exhausted the punishment the criminal liability will be also exhausted with it due to the fulfillment of the imposed by firm sentence.
The third cause of extinction of criminal liability resembles to the above, in this case the criminal liability will be extinguished for having been fulfilled the conditions established in the article 87 -for having elapsed the suspension term set without the commission of new crimes by the convicted and having it comply with the norms of behavior set by the judge or court, and when the suspension is agreed according with the fifth point of the article 80, when has been accredited the dishabituation of the subject or the continuation of the treatment-, for when the punishment has been previously suspended for one of the motives mentioned in the article 80, this will suppose that the subject will not be able to be jailed as consequence of the crime for which was convicted and whose punishment was later suspended.
The fourth motive which supposes the suspension of the criminal liability is the pardon of the government. This sort of pardon is regulated in the Law of 18 June 1870, it is a faculty of the government its granting and its request will not entail the suspension of the punishment.
The fifth motive mentioned in the article 130, is the pardon of the offended, for this it has to be a crime only prosecutable at the request of the damaged or being expressly envisaged in the CP. The three kinds of crimes for which the CP expressly envisages the pardon of the offended as a cause of extinction of the criminal liability are: 1º The crime of discovering and revelation of the secrets (art. 197 and following of the CP); 2º The crimes of slander and calumny (art. 205 and following of the CP), being in their case, besides, the only crimes purely private envisaged in the CP and in consequence only prosecutable at the request of the offended, and; 3º The crime of damages (art. 263 and following of the CP).
In the sixth place we find the prescription of the crime. The prescription of the crime will take place when the terms established in the article 131 have elapsed, therefore, the prescription of a crime is a temporal question, a matter of which later we will talk deeper.
Lastly, the seventh motive which make possible the extinction of the criminal liability is, for the prescription of the punishment or the measure of security. Another scenario which also take place for the elapsing of time of which we will talk, too, later with more detail.
The second of the points into which is divided the article 130, is expressly aimed to the legal entities, it does not mean that, what is envisaged in the first point of this article is not applicable to them, since it will be applicable as far as it can be due to their nature. In it is envisaged that, the transformation, the merger, absorption, or split of a legal entity does not extinguish its criminal liability, being transferred it to the entity in which is transformed, merged or absorbed and to the entities resulting from the split. This supposes a measure to avoid that, such corporate operations are used as a way to elude the criminal liability of a legal entity declared in firm sentence. Besides, for avoiding even more this possibility, is envisaged in the second paragraph of the second point of the article 130 that, the disguised dissolution or merely apparent of a legal entity will not extinguish either its criminal liability, defining in which consist such apparent or disguised dissolution, “It will be regarded that in any case there exists disguised dissolution or merely apparent of the legal entity when its economic activity continues and the substantial identity of the clients, suppliers and employees or the most relevant part of all of them is maintained.”
– The prescription of the crime:
The prescription of the crime is a cause of extinction of the criminal liability (art. 130.1.6º CP), in other words, it supposes that a crime cannot be criminally punished, in this case, as consequence of the elapsing of time.
It is said that, in this cases the State renounces to the legitimate exercise of the ius puniendi because, the reasons which motivates the imposition of a punishment, as its necessity for avoiding future crimes, do not concur any more. Or in the words of the own Spanish Supreme Court, making use of its sentence with number 1593/2022: “In our STS 1294/2011, of 21 November, we already said that the prescription of the crime, regulated as a cause of extinction of the criminal liability (art. 130.5º CP) is founded, once has been rejected the approach followed by those authors which link it to procedural motives related with the disappearance of proofs due to the elapsing of time, in aspects directly related with the theory of the punishment. In other words, the basis of the prescription will differ depending upon what is the theory of the punishment for which is opted. According to such approach, the foundation of the prescription must be found in the lack of reeducational-resocialicing necessity of the punishment for the fact committed as consequence of the elapsing of time, if it is considered that the punishment has a preventive-special function; in the lack of preventive-general necessity, for the elapsing of time would impede that the imposition and execution of the punishment could produce a deterring effect (negative general prevention); or in the lack of necessity of normative stabilization (positive general prevention), due to the own elapsing of the time.
Likewise, the prescription has been based in reasons of legal security derived from the elapsing of time.”
The prescription of the crimes is regulated in two articles of the CP. In the article 131 where are mentioned the terms of prescription, and in the article 132 where are established the rules to apply such terms. However, there are two important things which are not mentioned in any of them, and that we should know, we are referring to the moment of the procedure in which it can be appreciated and what should the legal qualification of the fact which determines its prescription.
The prescription of a crime may be appreciated ex officio in any moment of the criminal procedure, without the necessity of waiting to the proper legal means established to this end, as article of previous pronouncement in the Ordinary Procedure (art. 666.3 LECrim), or as previous question at the beginning of the Abbreviated Procedure (art. 786.2 LECrim). The goal is to avoid the waste of resources, of an administration of justice always lacking of them, in a criminal procedure in which the law from the onset determines that the criminal liability has been extinguished. However, despite the fact that it can be appreciated in any moment of the procedure, it is possible that this procedure should end by means of a sentence, for clarifying the circumstances which surround it through the practice of the proper proof in the oral trial, it can happen either when it is not clear whether the crime has prescribed or when it is not clear its legal qualification and it is relevant for establishing the prescription of the facts, for their gravity will affect to their term of prescription. This excerpt from the resolution of the High National Court with the number 9443/2022 sheds some light on this matter: “As is said by the STS 649/2018 of 18 December, “the prescription which for being based in principles of public order and general interest may be proclaimed ex officio, in any stage of the procedure in which is manifested with clarity the concurrence of the requisites that define and condition it ( SSTS 25/2007 of 26 January; 793/2011 of 8 July; 1048/2013, 760/2014 of 2014) and it is not essential the practice of proof for adopting a decision about the question raised, being even possible in some cases, its application after the oral trial and dictated sentence, in other words, within the boundaries of the cassation appeal ( SSTS 1173/2000 of 30 June ; 420/2004 of 30 March; 1404/2004 of 30 November). In essence, the prescription has to be appreciated always that concur the premises upon which is based -the corresponding term or penalization of the procedure- although the request is not made in the proper procedural moment and the procedural demands are not followed, -as article of previous pronouncement in the ordinary procedure, article 666.3 LECrim, and as previous question at the beginning of the abbreviated, article 786.2 LECrim, in order to avoid that a person that, according to the express will of the Law, has extinguished the possible criminal liability (STS. 387/2007 of 10 May).”
For answering to the second question, what should be the legal qualification of the facts which determines its prescription, we should mention the agreement of not jurisdictional Plenary session of 26 October 2010 of the Second Chamber of the Supreme Court, which says: “For the application of the prescription, the term corresponding to the crime committed should be taken into account, being understood this as the declared as such in the judicial resolution which determines it. In consequence, those aggravated legal qualifications which have been rejected by the ruling Court will not be taken into account. The same criteria will apply when the facts tried have elapsed from crime to misdemeanor, thereby the term of prescription will be the corresponding to the definitive qualification of them as crime or misdemeanor.
In the related crimes or in the combination of crimes, the gravest crime declared committed by the ruling Court will be taken into consideration to set the term of prescription of the group of crimes tried.”
Therefore, though as we have said the prescription of a crime may be appreciated ex officio in any moment of the procedure, when there exists controversy about the legal qualification of the facts, for instance between the writings of provisional qualification or even definitive of the crime belonging to the public or private prosecution (art. 649 and art. 651 for the Ordinary Procedure and art. 782 LECrim for the Abbreviated Procedure, and art. 732 for the Ordinary Procedure and art. 788.4 for the Abbreviated Procedure) and the writings of provisional or definitive qualification of the crime of the defendant (art. 652 LECrim for the Ordinary Procedure and art. 784 for the Abbreviated Procedure, and art. 732 for the Ordinary Procedure and art. 788.4 for the Abbreviated Procedure), what at the end will determine whether the facts have prescribed or not, will be the legal qualification which makes of the them the judge or court that dictates the sentence (art. 742 for the Ordinary Procedure and art. 789 for the Abbreviated Procedure). Nevertheless, we can deepen a little more in what we have just seen, because though the determining factor for appreciating the prescription is the legal qualification of the facts made by the judge or court, this qualification must respect the requested by the accusation in their writings of definitive qualification of the crime, in other words, between the requested by the accusation and the sentence should exist correlation. The article 789.3 of the LECrim, which although expressly envisaged for the Abbreviated Procedure is also applicable to the Ordinary Procedure says: “The sentence cannot impose a graver punishment than the requested by the accusations, nor convict for a different crime when it entails a different legal good protected or substantial mutation of the fact tried, except when some of the accusations have assumed the approach previously exposed by the Judge or Court within the procedure envisaged in the second paragraph of the article 788.3”. Therefore, the ruling judge or court should respect the boundaries previously marked by the by the accusation: 1º It cannot impose a graver punishment than the requested by the accusation, and; 2º It cannot convict for a different crime of the requested by the accusation, save in the case that there exists homogeneity between the legal goods protected between both. From the above we draw another important consequence, although the determining factor is the legal qualification of the facts by the sentence made by the ruling judge or court, both should always respect the requested by the accusation, thereby, save in the cases where there exists homogeneity between the legal good protected, what determines the prescription of the crime will be the legal qualification of the crime made by the accusations.
Achieved this juncture, the best will be to see what is envisaged by the article 131 and the article 132. The article 131 says: “1. The crimes prescribe:
To the twenty years, when the maximum punishment envisaged for the crime is imprisonment of fifteen or more years.
To the fifteen, when the maximum punishment envisaged by the law is disqualification for more than ten years, or imprisonment for more than then and less than fifteen.
To the ten, when the maximum punishment envisaged by the law is imprisonment or disqualification for more than five years and which does not exceed of ten.
To the five, the rest of the crimes, except the minor offences and the crimes of slander and calumny, which prescribe at the year.
- When the punishment envisaged by the law is composed, for the application of the rules included in this article will be taken into account the punishment which demands more time for its prescription.
- The crimes against humanity and of genocide and the crimes against the persons and goods protected in the case of armed conflict, save the punished in the article 614, will not prescribe in any case.
The crimes of terrorism will not prescribe either, if they have caused the dead of a person. - In the cases of combination of crimes or related crimes, the term of prescription will be the corresponding to the gravest crime.”
The first point of the article 131 establishes four different terms of prescription, depending of the maximum punishment envisaged for the crime by the law. Now, this first point of the article 131 remains silent with respect to whether the rules envisaged in the article 61 and following of the CP, where for example is said in which way will affect to the punishment the concurrence of the aggravating or attenuating factors, are applicable or not. We should understand that, for calculating the moment of prescription of the crime will be applicable such articles. For example: The article 160 of the CP punishes with the punishment of imprisonment from three to seven years and special disqualification for job or public office, profession or trade for the term from seven to ten years, who utilize genetic engineering for producing biological weapons or exterminating of the human specie. Imaging, that besides, in the commission of the crime the sentence determines that more than two of the aggravating factors of the article 22 has concurred. In this case, the established in the article 66.1.4º should be applied: “When more than two aggravating factors concur and no attenuating factor concurs, the punishments superior in degree to the established by the law may be applied, in its inferior half.” As we have seen, in the article 160 are established two kinds of punishment, now we should calculate what is the punishment superior in degree in its inferior half of both. For the punishment of imprisonment the punishment superior in degree in its inferior half will be from seven years and one day to eight years and nine months, and for the punishment of special disqualification, the punishment superior in degree in its inferior half will be from 10 years and one day to twelve years and six months. We see how for one of the punishments, for the punishment of imprisonment the prescription is of ten years, bu for the other, for the special disqualification the prescription is of fifteen years. In this cases, when the punishment envisaged by the law is composed, for determining the term of prescription we have to attend to the punishment which demands the longer term, according to the second point of the article 131. Then, a crime which at the beginning we thought that had a term of prescription of ten years -since for both punishments was applicable the term of prescription of ten years- has now a term of prescription of fifteen years, as consequence of the concurrence of more than two aggravating factors. In this example, it is really clear, how important is to end the criminal procedure with a sentence, in order to exactly calculate the term of prescription in accordance with the proof practiced in the oral trial and assessed in such sentence.
We have just seen the second point of the article 131 above. When in the law is envisaged for a crime a composed punishment, the term of prescription will be determined according to the punishment which has the longer term of prescription.
Now is the turn of the third point of the article 130. In this point are established three crimes as imprescriptible: the crimes against humanity, of genocide and the crimes against the persons and goods protected in the case of armed conflict, save the punished in the article 614 CP. Such crimes, besides being imprescriptible for application of the article 130.3, are also prosecutable when they are committed outside the Spanish territory by Spaniard or foreigners on account of the envisaged in the article 23.4 of the Organic Law of the Judicial Branch (LOPJ), an article which develops in the Spanish legislation the so-called universal jurisdiction, which has suffered a restraint in its scope in the last years.
In relation with the article 131, the last point we have to mention is the fourth point. The fourth point determines that, “In the cases of combination of crimes or related crimes, the term of prescription will be the corresponding to the gravest crime.” Though the wording is not very confusing, it is convenient that we recall what is said by the agreement of not jurisdictional Plenary session of 26 October 2010 of the Second Chamber of the Supreme Court, for determining its scope, concretely it says that: “In the related crimes or in the combination of crimes, the gravest crime declared committed by the ruling Court will be taken into consideration to set the term of prescription of the group of crimes tried.” Besides, in these cases will be applicable the rules established in the articles 73 and following of the CP.
Now we shall talk about the article 132. So far we know: 1º The moment of the procedure in which can appreciated the prescription; 2º What is the qualification of the crime which determines the prescription, and 3º The terms of prescription. But, we do not know yet, from when the term of prescription starts to run, nor when it is interrupted, nor when after being interrupted it can start to run again such term. This is the object of the article 132.
The first that we will see is the said by the article 132: “The terms envisaged in the above article will be computed from the day in which was committed the punishable infringement. In the cases of continued crime, permanent crime, as well as in the infringements which demands habituality, such terms will be computed, respectively from the day in which was committed the last infringement, from the moment in which was eliminated the illicit situation, or from the moment in which ceased the behavior.
In the tentative of homicide and in the crimes of not consented abortion, injuries, human trafficking, against the freedom, of tortures and against the moral integrity, the freedom and sexual indemnity, the intimacy, the right to the own image and the inviolability of the domicile, when the victim is a minor, the terms will be computed from the day in which it has acquired the majority of age, and if it died before reaching it, from the date of the death.
- The prescription will be interrupted, leaving without effect the time already elapsed, when the procedure is aimed against the person allegedly liable of the crime, starting to run again from the moment the procedure is paralyzed or it ends without conviction according to the following rules:
1ª The procedure will be understood as aimed against a determined person when from the moment in which, starting the cause or with posteriority, is dictated motivated judicial resolution in which is attributed its participation in a fact which may be regarded as a crime.
2º Notwithstanding the above, the lodging of lawsuit or report before a judicial organ, in which is attributed to a determined person its alleged participation in a fact which may be regarded as a crime, will suspend the computation of the prescription for a maximum term of six months, from the date of the lodging of the lawsuit or report.
If within such term is dictated against the person who appears in the lawsuit or report, or against any other person implicated in the facts, any of the resolution mentioned in the first rule, the interruption of the prescription will be understood as retroactively produced, to all the effects, in the date of the lodging of the lawsuit or report.
On the contrary, the computation of the term of prescription will continue from the date of the lodging of the lawsuit or report if, within the term of six months, is dictated firm judicial resolution rejecting the lawsuit or report or in which is agreed not to aim the criminal procedure against the person who appears in the lawsuit or report. The continuation of the computation will be produced too, if within such term, the examining magistrate does not adopt any of the resolutions envisaged in this article. - To the effects of this article, the person against whom the procedure is aimed must be enough determined in the judicial resolution, either by its direct identification or through data which allows to determine later such identification within the group or persons to whom is attributed the fact.”
The first of the points of the article 132 allows to us to solve the first of the doubts, the computation of the term of prescription will start from the day in which was committed the crime, a date which will be each day more difficult to determine as more days elapse between the fact and the lawsuit or report where it is communicated to the judicial authority, from it the importance of reporting the facts as soon as possible, besides it can contribute to better its recall by the person who has reported them, something which eventually can help it during its testimony during the stage of investigation or even during the oral trial. But we shall follow, because this first point adds that, in the cases of continued crime, permanent crime, as well as in the infringements which demand habituality the compute will begin from the day in which was committed the last infringement, from the moment in which was eliminated the illicit situation or from the moment in which ceased the the behavior. Besides, it establishes an exception to all the above in its second paragraph: “In the tentative of homicide and in the crimes of not consented abortion, injuries, human trafficking, against the freedom, of tortures and against the moral integrity, the freedom and sexual indemnity, the intimacy, the right to the own image and the inviolability of the domicile, when the victim is a minor, the terms will be computed from the day in which it has acquired the majority of age, and if it died before reaching it, from the date of the death.”
Let us now see the envisaged in the second point of the article 132. The first which is said by the article 132 is that, the term of prescription will be interrupted when the procedure is directed against the person allegedly liable of the crime. Here we can have the doubt of what happens with the time of prescription which has elapsed till the own prescription has been interrupted, this doubt can be easily solved if we read with attention this second point of the article 132, the time elapsed will be left without effect. The second that is said by this article 132 is that, the term of prescription established in the article 131 will start from the beginning when the procedure suffers a paralyzation or ends without a conviction.
So far, what we have just seen is not very clear. ¿When we can understand that the procedure has been aimed against the person allegedly liable of the facts for interrupting the prescription?, or ¿when the procedure has been interrupted for understanding that the term of prescription should start from the beginning? This is why the second point of the article 132 adds two rules, following their order, let us see the first. The first is that, “The procedure will be understood as aimed against a determined person when from the moment in which, starting the cause or with posteriority, is dictated motivated judicial resolution in which is attributed its participation in a fact which may be regarded as a crime.” Now, let us try to deepen a little more in what it said. The criminal procedure will begin when the report (art. 259, art. 262 and art. 264 LECrim), lawsuit (art. 279 LECrim) or police´s report (art. 297 LECrim) is admitted by the examining magistrate with competence to know of the investigation of the cause (art. 14.2, art. 269, art. 313 and art. 306 LECrim). But, according to this first rule, the starting of the cause is not what determines the interruption of the terms of prescription, what determines their interruption is the motivated judicial resolution by which is attributed to determined person a fact which may be regarded as a crime. Here, the first thing which can come to our heads is the committal for trial (art. 384 LECrim) in the Ordinary Procedure, and the formal imputation of the crime (art. 775 LECrim) in the Abbreviated Procedure, and obviously both resolutions should interrupt the term of prescription for both suppose a motivated resolution which allegedly attributes a crime to determined person. But, what happens until is dictated that committal for trial or is formally imputed the crime? the normal is that, save when in the report or lawsuit are provided strong evidences, previous to those resolutions there has to be an investigation carried out the examining magistrate from where are obtained the proofs with which sustain this committal for trial or formal imputation. In this point, the jurisprudence of the Spanish courts is clear, the judicial resolutions whereby is agreed the carrying out of an investigation will suppose the interruption of the term of prescription, always that that resolutions have as a target some person. The truth is that, for determining the judicial resolutions which can interrupt the term of prescription our courts have made a great effort, and there are numerous judicial resolutions which have talked about it. Let us see one of them. A good example is found in this excerpt of the resolution number 9364/2022 of the Spanish National High Court: “About the kind of concrete resolutions with efficacy for interrupting the prescription there exist various judicial resolutions which are qualifying this criteria consolidated by the jurisprudence, for example STS of 27.12.2010 which affirms that have efficacy for interrupting the prescription, not only the judicial resolutions which admit the lawsuit or report, but those resolutions which imply a previous judicial investigation and which are aimed to investigate a determined crime, limiting fundamental rights or activating mechanisms which have to produce such effect of interrupting the prescription, citing as examples, the resolutions which agree a telephone tapping, or an entry and search or a detention. The jurisprudence has also recognized efficacy for interrupting the prescription, not only to the acts of investigation, but to those for organizing the procedure, as the decision of the judicial organ of admitting or rejecting proofs (STS 1097/2004 of 7 September) and the fixing of the date for the oral trial, agreeing all the necessary for allowing it to take place.” But careful, because as we have already said, the admission of a report or lawsuit by the examining magistrate does not interrupt the term of prescription, it only suspends it, as we will see now below.
The second rule which is established in the second point of the article 132, for interpreting the envisaged at the beginning of such second point is the referring to the effects of the report or lawsuit upon the term of prescription. As we have already said, the beginning of the procedure after the admission of a report or lawsuit does not determine by its own the interruption of the prescription, save in the cases that at the same time that is initiated the procedure is attributed the facts with criminal appearance to determined or at least determinable person. What is said by this second rule is that, the simple lodging of the report or lawsuit will suppose the suspension of the term of prescription for a maximum period of six months from the date of lodging of the lawsuit or report. This has two consequences. The first that, if after lodging the lawsuit or report and that this suspended the term of prescription, later this is admitted and is dictated some of the resolutions which we mentioned before, the term of prescription would be understood interrupted the date in which the lawsuit or report was lodged. The second that, if after the lodging of the report or lawsuit, this was not later admitted, the term of prescription would continue running from the day that the lawsuit or report was lodged, but as it was never interrupted, in other words, the term of prescription would start the day in which the crime was allegedly committed. The term of prescription will also continue, from the day of the lodging of the lawsuit or report, when in the term of six months none of the resolutions aforementioned are dictated.
After ending with both rules, we still have to answer one of the questions which we made before, when the criminal procedure has been interrupted as to make the term of prescription to start from the beginning? Do not believe we have forget it. One of the clear scenarios which will suppose the that the term of prescription starts to run again, although from the beginning, is the provisional dismissal of the cause (art. 641 LECrim).
And the article 132 still has one more point. In its third point is clarified how precise should be the motivated judicial resolution, whereby is attributed some fact to determined person. There is not necessary that in the judicial resolution appear specified the name and surname of a person, it is enough with having data which allows in the future to concrete this identification, as for example by a nickname or through any other feature. This scenario will be specially relevant, for interrupting the term of prescription when we are before of any of those first judicial resolutions, which have precisely as goal to concrete the alleged liable and to clarify whether the crime exists.
We have to talk about something more in relation with the prescription, and which would link with the above that we have seen, how precise has to be the judicial resolution when identifying or attributing determined crime to a person, for understanding that the term of prescription has been interrupted. We are referring to the cases of coauthorship, when in a crimen there exist more than one author, how does the rules we have seen for interrupting the term of prescription work? for example, when the procedure has been aimed against one of the authors by virtue of the judicial resolution aforementioned, but not against others. In these cases, the Spanish courts have opted for a personal criteria, the term of prescription must be individually computed for each of those who have took part in the crime as authors or even accomplices, for we have to remember that the article 27 CP attributes the criminal liability of a crime to all those who have contributed to it realization as authors or accomplices. In other words, the judicial resolution which interrupts the term of prescription should identify with enough clarity the different authors and accomplices, for understanding that the term of prescription has been interrupted for each of them. This excerpt of the sentence with the number 2228/2022 pertaining to the Spanish Supreme Court is interesting regarding it: “5. The reform carried out by the Organic Law 5/2010 stressed the necessity that the procedure with interruptive virtuality of the term of prescription is aimed against a sufficient determined person.
A formula which responds to an axiological discourse which is based in the individual scope of the criminal liability derived from the own basics of liability from the model of intervention, banishing in the prescriptive matter a kind of principle of joint liability of civil roots. Each person should be subjected, in its case, to the procedure for singular reasons and, in any case, attending to the temporal survival of the action with respect to each one of them.
If the teleological reason is that the interruption of the prescriptive term can only be produced for a judicial decision of prosecution on the grounds of a determined forecast of subjective imputation, this has the consequence of the necessity of determining the prescriptive terms with respect to each of the contributors, when the important is to determine if the action survived at the moment in which it was agreed.
General formula which only has a (relative) exception: in the scenarios of organize crime or groups. In this cases, it is produce the interruptive effect from the beginning of the procedure of investigation with respect to persons not directly identified, but of whom are given data which allow to concrete later such identification within a criminal group or organization.
Such data precursor of the later identification must, notwithstanding, in an ex ante judgement draw a kind of concrete circle of suspected intervener. It is not enough, therefore, with affirming that the criminal, group or organized structure, comprehends the participation of non identified third parties for considering, that with respect to this hypothetical interveners is produced from the beginning of the procedure against the identified the interruption of the prescriptive term. It is necessary to qualify the judgment of future imputation based in data which allows to foretell in a reasonable way that, when the procedure started, such non identified persons nor, in concrete, identifiable already pertained to the criminal organized structure. For example, data socio-personal of the non identified accused -age, appearance, nationality, residence, personal, laboral or mercantile ties, co-ownership of technological means or weapons (in the terms which are contemplated in the articles 570 bis and ter, both, CP) used by others of the group, etc.- which link them with the plot or the persons already identified.”
– The prescription of the punishment:
The last three articles of the Chapter I of the Title VII of the Book I of the CP, are dedicated to the prescription of the punishments and measures of security imposed by firm judicial sentence.
In the article 133 is established the terms of prescription of the punishments, it says: “1. The punishments imposed by firm sentence prescribe:
To the the 30 years, when they are of imprisonment for more than 20 years.
To the the 25 years, when they are of imprisonment for 15 years or more, without exceeding of 20.
To the 20 years, when they are of disqualification for more than 10 years and those of imprisonment for more than 10 years and less than 15.
To the 15 years, when they are of disqualification for more than 6 years but do not exceed of 10, and those of imprisonment for more than 5 years and which do not exceed of ten.
To the ten, the rest of serious punishments.
To the five, the less serious punishments.
To the year, the minor punishments.
- The punishments imposed for the crimes against humanity and of genocide and for the crimes against the persons and goods protected in the case of armed conflict, save the punished in the article 614, will not prescribe in any case.
The crimes of terrorism will not prescribe either, if they have caused the dead of a person.”
As in the case of the prescription of the crimes, the punishments will not prescribe when they are imposed as consequence of crimes against humanity, of genocide, for the crimes against the persons and goods protected in the case of armed conflict, or crimes of terrorism which have caused the death of a person. Remember that in the three first cases is where is possible the application of the so-called universal jurisdiction, although with the limitations of the art. 23.4 of the LOPJ.
On the other hand the art. 134 establishes, the way in which should be applied the terms of prescription of the above article. The terms of prescription of the punishments will be computed from the date of the firm sentence, or from the breaking of conviction, if this was began to be fulfilled. In this cases, the term of prescription of the punishment can be also suspended, as in the case of the prescription of the crime when was lodged the corresponding report or lawsuit. The term of prescription of the punishment will be suspended: 1º During the period of suspension of the execution of the punishment, which can be suspended according to the envisaged in the art. 80 of the CP, and; 2º During the fulfillment of other punishments, when is applicable the envisaged in the art. 75 CP, in other words, when the punishments imposed by firm sentence cannot be fulfilled simultaneously and should be fulfilled in a consecutive way in accordance with their gravity, though with the limits of the art. 76 CP.
Concretely the art. 134 says: “The time of the prescription of the punishment will be computed from the date of the firm sentence, or from the breaking of the firm sentence, if this was began to be fulfilled.
- The term of prescription of the punishments will be suspended:
a) During the term of suspension of the execution of the punishment.
b) During the fulfillment of other punishments, when is applicable the envisaged in the article 75.”
It is the article 135, the one reserved the prescription of the security measures. In it is missed the remembering of what is said in the art. 3 of the CP, no measure of security can be executed but by virtue of firm sentence. Something which also coincide with the envisaged in the art. 782 of the LECrim, which obliges to terminate the procedure until its termination through sentence, when the Public Prosecution and the private accusation request the dismissal of the cause for the 1º, 2º, 3º, 5º or 6º causes of exemption of the criminal liability of the art. 20 CP, to the effects of the imposition of the corresponding measure of security and the trying of the civil action, though the measures of security only can be imposed when concur any of the first three motives of the art. 20.
Concretely the art. 135 says: “1. The measures of security prescribe to the 10 years, if they are freedom´s privative measures of more than three years, and at the five years, if they are freedom´s privative measures equal or inferior to three years o have another content.
- The time of prescription will be computed from the day in which is firm the resolution into which was imposed the measure of security or, in the case of successive fulfillment, from the day in which it should start to be fulfilled.
- If the fulfillment of the security measure was after the punishment, the term of prescription will be computed from the extinction of this.”
– The prescription of the civil liability declared in firm criminal sentence:
So far, we hav talked about the prescription of the crime and the prescription of the punishment. However, we cannot forget that the commission of a fact envisaged by the law as crime, also obliges to repair the damages derived from it (art. 109 CP).
The exercise of the criminal action by the damaged by the crime, will also suppose the exercise of the civil action, save in the cases in which this reserved it for its later exercise in a pure civil procedure, or save when it has expressly renounced to it (art. 109 CP y art. 108 LECrim). That the civil liability derived from a crime is exercised in the own criminal procedure has an important consequence, in the criminal procedure the execution of the civil procedures is ex officio and not at the request of the parties. This important feature has made to the Spanish Supreme Court to consider that, “Declared the firmness of the sentence, the execution of its civil pronouncements may continue until the complete satisfaction of the creditor, in accordance with the article 50 of the LEC (Spanish Civil Procedure Act), without being of application the prescription or the expiry.”
Below we can read the whole argumentation, in its sentence number 4056/2020: “The article 518 of the LEC envisage that “the executive action founded in sentence, in resolution of the court or the Lawyer of the Administration of Justice which approves one judicial transaction or an agreement achieved in the procedure, in the ruling of an arbitrator or in a mediation agreement will expire if it is not interposed the corresponding executive lawsuit within the next five years to the firmness of the sentence or resolution.”
Part of the doctrine maintain that the appearance of the article 518 of the LEC makes to doubt of the utility of the article 1971 CC and its validity. However, it is not a question, as it is suggested by the appellant, of a problem of tacit derogation of the article 1971 CC, whose validity may be useful for other different cases of which now occupied us, but of the criteria which have to be utilized as consequence of the remission that the Spanish Criminal Procedure Act makes to the LEC (Spanish Civil Procedure Act) for everything the concerned to the execution of the civil pronouncements in criminal sentence.
In fact, the article 984.3 of the LECrim remit to the LEC for the execution of the civil pronouncements and adds that “in any case it will be promoted ex officio by the judge which dictated it.”
The resending to the procedure civil act does not mean that should be applied all the precepts of the LEC which regulate the forced execution, but only those which result necessaries.
In the criminal procedure the execution of the civil pronouncements is carried out ex officio and not at the request of the parties, which gives rise to two consequences: On the one hand, the recognizing of a term of expiry for the exercise of the executive action does not have any reason, because the right declared in the sentence does not need this action. On the other hand and as consequence of the above, it is not necessary to lodge a lawsuit for making effective the sentence. Therefore, the singular configuration of the procedure of execution in the criminal jurisdiction allows to conclude that is not applicable the term of expiry established in the art. 518 of the LEC (Spanish Civil Procedure Act), in the same way that it is not necessary either the lodging of executive lawsuit.
2.4 Excluded the application of the article 518 of the LEC arises the doubt of whether should be applied the prescription of the article 1971 of the Spanish Civil Code in which is envisaged that “the time of prescription of the actions for demanding the fulfillment of obligations declared by sentence starts from the moment the sentence became firme”. The answer is similar to that offered before. It is true that the prescription has a multiple foundation (the public power cannot defend with the same vigor a right which is not exercised against one which is, negligence of the owner, necessary certainty of the legal relations, etc.), but also what is the jurisprudence of this Court has reiterated that the basis more relevant is the presumption of forsaking of the right and this is like this because the prescription presuppose the claim of the creditor and it is presuppose forsaken if it is not acted within the term envisaged by the law.
Although it is true that the extinctive prescription is the general rule and it is applied to all the rights and actions (article 1930 CC), it is also true that the time for its computation is counted from the day in which the action or right could be exercised (article 1969 CC) and that it is interrupted with its exercise before the courts, by extrajudicial claim or by any acknowledgement of the debtor (article 1973 CC). From these precepts is deduced that the prescription presuppose the necessity of the exercise of the executive action by the creditor, and in the criminal procedure, once it is dictated sentence, there is no necessity of promoting such action because it is the own judicial organ who activates the execution.
Therefore, taking into account the hermeneutic criteria to which we make reference before and the singular configuration of the criminal procedure there is no reason to acknowledge a new term of prescription from the firmness of the sentence, because the fulfillment of the obligation declared in the sentence does not depend upon the actuation of the parties but it is attributed to the judicial organ.
It is true that declared the firmness may be produced stagnations which delay the ending of the execution, but it does not have importance to these effects due that in the procedure of execution it is not admissible the expiry of the instance, by express stipulation of the article 239 of the Spanish Civil Procedure Act. Declared the firmness of the sentence, the execution of its civil pronouncements may continue until the whole satisfaction of the creditor, in accordance with the article 570 of the LEC, without being applicable the prescription or expiry.”
– The cancellation of the criminal records:
According to the envisaged in the article 2 of the Royal Ordinance 95/2009, of 6 February, whereby is regulated the System of administrative registers of support of the Administration of Justice, the Central Registre of Punished gathers the inscription of the firm resolutions for the commission of a crime or minor offence which impose punishments or measures of security, dictated by the Courts in the criminal jurisdiction.
The persons convicted by firm sentence who have extinguished their criminal liability, have the right of obtaining from the Ministry of Justice the cancellation of their criminal records, gathered in the Central Registre of Punished, in accordance with the terms established in the article 136 CP.
The criminal record is constituted by the note of conviction, thereby the cancellation affects to all the punishments imposed by firm sentence and not to each individualized punishment.
In this link you can obtain more information about the above.
Therefore, what is established in the article 136, are the terms for allowing to the convicted by criminal firm sentence to obtain the cancellation of their criminal records gathered in the Central Registre of Punished, thereby the cancellation of the criminal records will consist in eliminating from such register the note where they are reflected.
Concretely the article 136 says: “The convicted who have extinguished their criminal liability have the right to obtain from the Ministry of Justice, ex officio or at their request, the cancellation of the their criminal records, when have elapsed without committing again a crime the following terms:
a) Six months for the minor punishments.
b) Two years for the punishments which does not exceed of twelve months and the imposed for imprudent crimes.
c) Three years for the rest of less serious punishments of less of three years.
d) Five years for the rest of the less serious punishments equal or of more than three years.
e) Ten years for the serious punishments.
- The terms to which is referred the above point will be counted from the next day in which was extinguished the punishment, but if it occurred through the conditional remission, the term, once obtained the definitive remission, will be computed regressing it to the next day to that in which was fulfilled the punishment if this benefit was not enjoyed. In this case, the initial date for computing the duration of the punishment will be the next day of the granting of the suspension.
- The punishments imposed to the legal entities and the accessory consequences of the article 129 will be cancelled in the term which corresponds, in accordance with the rule envisaged in the point 1 of this article, save that the definitive dissolution or prohibition of their activities was agreed. In these cases, will be cancelled the annotations after elapsing fifty years computed from the next day of the firmness of the sentence.
- The inscriptions of criminal records in the different sections of the Central Registre of Punished and Absent will not be public. During its validity only will be emitted certifications with the limitations and guarantees envisaged in the specific norms and in the cases established in the law. In any case, will be emitted those requested by the judges and courts, referring or not to cancelled inscriptions, expressly reflecting this circumstance.
- In the cases in which, in spite of fulfilling the requisites established in this article for the cancellation, this has not been produced, the judge or court, accredited such circumstances, will not have into account such criminal records.”
On the other hand, the cancellation of the notes in the Central Registre of Punished corresponding to the measures of security, is regulated in the article 137: “The notes of the measures of security imposed according the envisaged in this Code or in other criminal laws will be cancelled once fulfilled or prescribed the respective measure; meanwhile, only will be reflected in the certifications that the Registre emits to judges or courts or administrative authorities, in the cases established by the law.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com