Criminal Law: Incomplete Crimes and Sentencing in Spain
Incomplete Crimes and Sentencing in Spain
A) Incomplete Crimes and Penalty Reduction
a) Imperfect Forms of Execution
When perpetrators attempt a crime but do not fully complete it, they may be subject to a lesser sentence. Article 62 of the Spanish Penal Code (CP) allows for a reduction of one or two degrees from the penalty for the completed crime. The choice between one or two degrees depends on the danger posed by the attempt and the degree of completion achieved. This refers to the distinction between a frustrated attempt (where the perpetrator has performed all necessary acts but the crime is not completed) and an unfinished attempt (where the perpetrator has only performed some of the necessary acts). The CP does not mandate a different sentence for each type of attempt, leaving the decision to the courts.
b) Participation
Accomplices to a crime or attempted crime receive a penalty lower than that of the perpetrator (Article 63). This reflects the principle of the accessory nature of participation, where the accomplice’s penalty is derived from the perpetrator’s. In the case of an attempted crime, the accomplice’s penalty is reduced based on the perpetrator’s reduced penalty and the accomplice’s level of participation.
c) Concurrence of Incomplete Defense (Art. 21.1)
Article 68 mandates a penalty reduction of one or two degrees in cases of incomplete defense. The criteria for this reduction are outlined in Article 68 (“the number and extent of the requirements that are missing…”) and guide the decision on whether to reduce the penalty by one or two degrees.
d) Special Cases of Mitigating and Aggravating Circumstances
The CP demonstrates a tendency to restrict judicial discretion in sentencing by introducing complex rules, with a clear bias towards aggravating factors. However, several mitigating factors without any aggravating factors can lead to a penalty reduction of one or two degrees (Article 66.1.2). Cases with more than two aggravating circumstances or qualified recidivism allow the court to impose a lesser penalty, potentially going beyond the typical penalty for the offense. These cases involve a modification of the abstract sentence or the choice of penalty degree.
B) The Penalty: Higher or Lower Degree
The higher penalty is a new sentence with the following limits: the minimum is the upper limit of the original penalty plus one day, while the maximum is the upper limit of the original penalty plus half its amount (Article 70.1.1).
The lower penalty is calculated similarly: the minimum of the original sentence is reduced by half, and this becomes the minimum of the lower penalty. The maximum of the lower penalty is the minimum of the original sentence minus one day (Article 70.1.2).
Example: The lower degree penalty for homicide, which has a sentence of 10 to 15 years, is 5 years to 10 years less one day (to ensure the maximum and minimum of the lower penalty do not coincide, they differ by one day).
Article 70.3 provides special rules for cases where determining the higher penalty exceeds the maximum limits established for each type of sentence (e.g., imprisonment, Article 36). In these cases, the higher penalty remains the same but with clauses extending its duration. For example, the higher penalty for imprisonment of 20 years would be extended to up to 30 years.
If applying the rules for qualitative determination results in a penalty below the lower limit, Article 71 allows the court to apply the resulting penalty. If it is a prison sentence of less than three months, the court can replace it with other measures (Articles 88 and following) or suspend it conditionally.
3. Specific Penalty
After determining the penalty scale based on relevant criteria, the court establishes the specific amount (duration) of the penalty within those limits. The CP provides rules based on mitigating and aggravating circumstances (limiting the judge’s discretion).
The presence of modifying circumstances requires the judge to move within only one-half (upper or lower) of the penalty range. This upper or lower half should not be confused with the higher or lower degree. Once determined based on the circumstances, the judge can impose a penalty within those limits as deemed appropriate.
General Issues on the Estimation of Circumstances
The general theory of modifying circumstances in determining the sentence includes the communicability of circumstances to different individuals involved in the crime (Article 65, formalizing the principle of guilt and personality of the sentence) and the prohibition of considering circumstances inherent to the offense (prohibition of double assessment).
Application Rules of the Penalty Based on Modifying Circumstances (Article 66 CP)
1. Concurrence of Mitigating Circumstances
When only one mitigating circumstance is present, the judge cannot exceed the lower half of the penalty range (Article 66.1.1). If there is more than one mitigating circumstance, or a highly qualified one, the penalty can be lowered by one or two degrees (Article 66.1.2), excluding incomplete defenses, which have special rules.
2. Aggravating Circumstances
If one or two aggravating circumstances are present, the judge imposes the sentence in the upper half of the established range (Article 66.1.3). This rule applies only when there are only aggravating circumstances. If both mitigating and aggravating circumstances are present, Article 66.1.7 applies.
If there are more than two aggravating circumstances and no mitigating circumstances or qualified recidivism, the judge can impose the higher penalty. If this power is not used, the penalty is applied in the upper half of the range established for the crime.
3. Joint Concurrence of Mitigating and Aggravating Circumstances (Article 66.1.7) – Rational Compensation
Article 66.1.7 addresses cases with both mitigating and aggravating circumstances. In these cases, the judges “rationally evaluate and compensate” the circumstances for individualizing the punishment. “Rational compensation” means considering the importance of each circumstance, not just their number. The judge then applies the penalty in the lower half or upper half of the range, respectively.
The term “qualified basis” refers to special mitigating and aggravating factors with a greater impact than simple ones (e.g., recidivism). These factors may remain after rational compensation. If, after compensation, mitigating and aggravating factors are fully offset, the judge proceeds as if no circumstances were present and applies Article 66.1.6. Only generic modifying circumstances (Articles 21, 22, and 23 CP) can be offset against each other. This rule does not affect specific modifying circumstances under certain types of crimes in the Special Part.