Recent reforms to the Spanish Criminal Code.

Hello followers: In this present post we are looking at the recent reforms to the Spanish Criminal Code.

The new reforms are found namely in the following areas
1. Economic crimes

2.Seizure ofassets

3. Greater protection of women

4. Minors

5. Intellectual and industrial property

6. Life imprisonment withparol

7. Parol

8. Security measure

9. Elimination of misdemeanours

10. Murder andillegal detention

11. Theft and Robbery

12. Assaults, resistance and disobedienc

13. Crimes of hate against minorities

14. Immigration

1. Economic crimen

The Criminal Code has undergone a major transformation with the offences that deal with combating corruption. The current text characterises this as a corporate crime, when in fact anyone can be a victim of this type of crime. With the reform, criminal offences will punish unfair acts committed through abuse of management, or unfair management of assets of a third party which cause damage or create a danger of loss. So service contracts of no use, signed without consideration and carried out at a higher price than they should be, will be punished.

The bill characterises, such as embezzlement, all cases of unfair management of public assets: contracts at prices that do not reflect reality, contracts without consideration and use of public assets for private purposes … There will not be a necessity to prove a gain, but it will be enough to prove that there has been unfair conduct.

The bill extends the responsibility of legal entities to public companies and will also provide for the punishment of directors for crimes being committed due to a lack of prevention measures.

It reviews the offences of punishable insolvency; for behaviour that hinders or frustrates the implementation of insolvency or bankruptcy. The effectiveness of implementing these offences will be improved, amongst which includes the concealment of assets, which will in turn provide greater protection for creditors.

The bill also introduces better techniques in regulating crimes which punish corruption in the private sector or in foreign public agents with the aim to eliminate the cases in which, through the payment of bribes for personal gain or for the benefit of a third party, advantageous economic relationships with companies are obtained.

2. Seizure of assets

The reform includes an ambitious change to the seizure of assets, which is ahead of the European Directive on the freezing and seizure of proceeds of crime in the European Union.

Until now the seizure of illegal assets was connected to the existence of a prior criminal conviction for a crime committed, however, as established in the European Court of Human Rights, the seizure of assets is not a criminal sanction, only a way to end an illegal state of affairs; it is not a sanction to adjust the culpability of what has been done, except where you are restoring unfair gain.

This concept broadens the ability to seize assets without conviction, planned for criminals or the deceased. It will also extend the way in which you can confiscate property from a convicted person for a crime other than that for which they have been convicted. This model has already been introduced for crimes committed by terrorists and criminal organisations, but now extends to other cases in which criminal activity sustained over time can lead to significant economic benefits.

The reforms also deal with money laundering and handling stolen goods, crimes against public welfare, human trafficking, prostitution, exploitation and abuse, counterfeiting, corruption in the private sector, computer crime, bribery, embezzlement and crimes against property

On many occasions the goods that come from criminal activities are transferred to third parties. Therefore, the regulation improves the confiscation of property held by third parties.

3. Greater protection of women

The Criminal Code reform includes new crimes (already seen foreseen in the Spanish Cabinet on the 11th October 2012) for the greater protection of women. One of these is forced marriage (article 172 bis), which punishes the violence or intimidation of forced marriage, and the violence, intimidation or deception to force someone to abandon their home county and not return with this same aim of forced marriage.

Furthermore, from now on it will punish repeated acts of stalking or harassment by means of continuous phone calls, monitoring, or any other acts that can seriously affect the feeling of freedom or safety of the victim, but often cannot be classified as a crime of coercion or threats because they do not result in violence.

It goes on to punish the disclosure of unauthorised recordings or private images obtained with consent of the victim, but then disclosed without their knowledge, when it seriously affects their privacy, a practice that has been seen often with the youth. The Criminal Code only punishes the seizure or interception of private letters or messages from the victim, but does punish if the victim herself facilitated in the spreading of them.

It also incorporates into the Criminal Code the offence of disabling electronic devices used in observing crimes, which is particularly relevant when it comes to combating gender violence. In addition, with regard to this, the new bill considers crimes of mild injuries and unjust harassment committed in this context. The judge may impose penalties of fines, but only when it is established that there are no economic ties between the convicted and the victim, which would then lead to the victim being affected by these fines.

Similarly, as was the case with the domestic violence, crimes of a sexual nature cannot be treated as one continuing crime and instead a punishment should be enforced for each one committed. In other cases it limits the concept of continuing offences to criminal behaviour committed close together. To prevent its recurrence it does not reflect the severity of the penalty for one or more similar offences, but shall impose a sentence greater than that of the most serious offence committed, but less than the sum of them all.

4. Minors

The performance of any act of a sexual nature with a minor (those under the age 16) will be considered a crime, unless it is consensual sex between those with a similar degree of maturity and development, which in no case will be penalised. It will be a crime to witness minor-third party relations or abuses committed on a third party. Furthermore it will be illegal to contact a minor through technological means to deceive them and to provide pornographic images.

5. Intellectual and industrial property

The reform aims to achieve a balance between the protection of copyright and new technologies. It goes after economic exploitation, reproduction, plagiarism, the distribution and the communication to the public of a work without the authorisation of the owners, all with the intention of making a profit directly or indirectly (e.g. through advertising), and to facilitate access to these works on or off the internet.

It expressly characterises facilitation as means of eliminating or offsetting technological measures used to protect intellectual property. The objective is to go after web pages that obtain a list of links through which you can illegally access protected copyrighted works. In no case will it act against users or neutral search engines, or against P2P programs that allow content sharing.

Meanwhile, crimes against industrial property will differentiate criminal liability of importers and the wholesale distributors. The severity of their punishment will increase, whilst retail distributors and retail operations will see a lessening in regards to their responsibility. In the case of “street vendors” penalties will stay the same as they are now.

6. Life imprisonment with parole

Life imprisonment with parole is intended to provide a more appropriate penal response to certain crimes that cause particular social rejection. It applies to terrorist killings, those committed against the king or the crown prince and against foreign heads of state. It will also be the penalty for cases of genocide and crimes against humanity, as well as in the first case, with sexual assault.

Courts will impose this penalty in certain types of aggravated murder: when the victim is under sixteen years and it is a particularly vulnerable person, when following an offence against sexual freedom, multiple crimes, and those committed by members of a criminal organization.

The new penalty carries a jail sentence that has been established between 25 and 35 years, depending on whether they have had one or more convictions for crimes, or they have been convicted of a terrorist crime. Only after this period will the review system be applied which will allow the release of the prisoner if they meet certain requirements. This review can be performed at the request of the defendant once a year, but also made ex officio by the court, at least every two years.

The application of this type of life imprisonment has been endorsed by the European Court of Human Rights in various judgments after its application in neighbouring countries, which has determined that the possibility of parole satisfies Article 3 of the European Convention of Human Rights.

7. Parole

Parole will regulated as a suspended sentence, in such as way that if, upon release, the offender returns to crime, they may be re-incarcerated to serve the rest of their sentence from the time it was put on hold. It applies the same in cases of life imprisonment with parole, parole can be granted when the fixed sentence has been served and you have been given parole.

It will extend the possibility of granting parole for those entering prison for the first time. Those convicted for the first time of sentences up to three years, and with irreproachable behaviour, can be granted parole of half the sentence, compared to two thirds today.

Although you can still apply for a suspended sentence for the same reason, all must be in keeping with a single system of suspension, which will prevent the duplication of procedures and resources. Another novelty is that to make sure civil liability is satisfied you could agree on or, if necessary, revoke parole, which is to be considered if the defendant has hidden assets or did not provide information on who has to front the payment.

Furthermore, it simplifies the suspension of a criminal record to allow the operation of the European system of exchange of information.

8. Safety measures

The foundation of safety measures lies in the dangerousness of the criminal. The idea that there cannot be anything more severe than the applicable punishment for a crime is abandoned, because these are determined by culpability, which in turn is based on the dangerousness of the criminal.

The Criminal Code provides safety measures for the admission into a psychiatric centre, for addiction or special education, to be followed before the sentence. This may not happen if the judge considers it unnecessary or they believe that it will jeopardise the purpose behind the measure itself. In any case, this is a very restrictive regime, which applies only when there is a high probability of a serious crime being committed. In more severe cases, this deferral may be decided by a court at the request of the prosecutor after a hearing.

The text also includes supervised relief. In this case, this is always applied after the sentence has been carried out and, while the current text deals only with sexual crimes, it now extends to re-offenders. This sentence will be imposed and will last between three and five years, but can be cancelled at any time by a surveillance court Judge. This extension only applies in the event of sexual crimes and if there is a real chance that the criminal will reoffend.

9. Elimination of misdemeanours

IMPORTANT CHANGE – In order to follow the principle of minimal intervention of Criminal Law, and to reduce the number of minor issues that burden the courts, it was decided to remove offences. Offences which need criminal sanctions are being kept, but misdemeanours that are not serious are instead going to be punished with fines. The process shall be put in the new Criminal Procedure Code which is in working progress. Meanwhile, temporarily, it will be resolved within current misdemeanour proceedings.

The Criminal Code incorporated a criterion for the conduct that would be considered minor offences, not serious enough to warrant the start of proceedings and no public interest factor, which can be closed at the request of the prosecutor.

Misdemeanours that do not warrant criminal sanction are to be eliminated from the Criminal Code although they will be pursued within the Public Safety Act or through civil proceedings.

10. Murder and illegal detention.

The Criminal Code updates the crime of murder, to be considered in such a way that, in addition to the circumstances already provided for (premeditation, for money, for reward or promise, and GBH), it will be seen as murder when it is committed to facilitate committing another crime or to avoid detection.

If the victim is under that age of sixteen or they are especially vulnerable and there is a sexual motive then it will be seen as aggravated murder. It will also be classed as that if the crime is against law enforcement or public officials whilst they are carrying out their jobs.

Illegal detention without giving reasons for the whereabouts of the victim should be punished with a similar sentence to that of murder (ten to fifteen years in prison), and kidnapping should be raised to between fifteen to twenty years. These penalties are increased to a maximum of twenty-five years if the victim is a minor or there is a sexual motive to committing the crime.

11. Theft and Robber.

The offence of theft is to be removed to be substituted with a lesser crime of theft punishing the cases in which the stolen goods do not exceed a thousand Euros.

However, to draw a line between a misdemeanour (punishable by a fine) and a crime (punishable by jail), the judge may also take into account the economic capacity of the victim. With the aim of providing an adequate response to repeat offending and serious crime it is expected that, in the case of professional and organised crime, it will be classed as an aggravated crime, that is to say that the crimes of one to three years imprisonment. In more serious cases the penalty can be up to four years in prison.

It is an offence of theft, regardless of the amount stolen, when certain circumstances occur, such as the helplessness of the victim, professionalism, the use of minors and theft of mainline electricity or telecommunication. Being included to this is thefts from farms or livestock that causes serious damage. Armed robbery or belonging to a criminal organisation also aggravates the crime.

Burglary takes into account the way it was carried out, but also the force used to get inside (e.g. deactivating alarms) and robbery with violence in public places introduces an assumption of aggravated crime.

Fraud when committed by a criminal organisation and when the fraud affects a number of people will become aggravated offences, for which security measures may be imposed for dangerous criminals

12. Assaults, resistance and disobedience

The Criminal Code clarifies the definition of assault as a crime that includes all cases of assault and battery, the use of violence or serious threats of violence on the victim. As it can be committed with varying severity, it has been decided the minimum sentence it to be lowered, and to raise the sentence when the crime was carried out using weapons or dangerous objects, blunt objects or corrosive or flammable liquids, or through the use of a motor vehicle, or any action that causes serious injury or life-threatening situations.

The civil disobedience will be taken out of the Code but it will be penalised as an infraction in the Public Safety Act. It will include protection for members of rescue teams and security company employees when performing their duty under the direct command of the State Security Forces.

Another new feature of the text is the definition of disorderly conduct and the carrying out of acts of violence against things and people. It also punishes those who encourage another to commit a crime of damage.

It will only punish the spreading of messages that encourage other to commit and offence of disorderly conduct. That is to say not merely a call for a demonstration will constitute a serious disorder, but there needs to be an actual incitement of violence. The interruption of telecommunication services or transport that causes a serious disruption will also be punished.

To protect the trust we have in certain uniforms and symbols their misuse will be penalised. Moreover, it also punishes an unauthorised practice of a profession, carrying penalties in cases where the offender has responsibility in a certain profession, without the necessary qualifications needed, where the establishment is open to the public.

13. Crimes of hate against minorities

Characterising behaviour of incitement of hatred and violence is being modified to adapt to a decision of the Constitutional Court in March 2008, which was about combating certain forms of racism and xenophobia. It will go further by radically rejecting of all acts of incitement of discrimination, hatred or violence against a victim who is part of a collective or a minority. The High Court has also enforced an interpretation of genocide, which limits its application to cases in which this conduct constitutes incitement to hatred or hostility against minorities.

The reform punishes two sets of behaviours:

– Acts of incitement of hatred or violence against groups or individuals with reasons relating to racism, anti-Semitism or its ideology, religion, ethnicity or membership to other minority groups, and the production, processing and distribution of materials for this purpose.

– The other reform punishes acts of humiliation or contempt against such minorities and the glorification of justification of the crimes committed against them. The sentence is aggravated in cases where the crime was carried out over the internet or other social media and if necessary measures will be taken to close it down.

14. Immigration

Currently the law on human trafficking predates the European Directive on this issue, so the reform will modify it to include the giving or receiving of payments or benefits to obtain the consent of a person having control over another person, for the purposes of exploitation. It also goes on to define a position off vulnerability. Furthermore, it increases the sentence for the cases where the risk of serious injury occurs.

The sentence has been lowered to a year in prison or a fine (the minimum allowed by Community Law) in cases of illegal immigration offences punishable under Article 318 bis, except for cases of organised crime and where the lives and safety of the immigrant has been endangered.

To avoid any doubts over interpretation of this matter, the reform expressly excludes all cases in which the action has been carried out with a humanitarian purpose.

There are other reforms being made but less relevant. Well, I hope you have found this interesting and hope it sparks a debate amongst readers of this post.

Borja Pérez

Abogado profesional con gran experiencia. El compromiso de nuestro bufete de abogados es dar una respuesta ágil, de calidad y un servicio excelente.

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