Principles of Spanish Criminal Law: A Comprehensive Guide
1) The Principle of Ne Bis in Idem and its Relationship with Administrative Law
The ne bis in idem principle, implicit in the principle of legality, dictates that an individual cannot be punished twice for the same crime. It prevents the same subject from being judged on the same facts unless they are identical. In cases where both criminal and administrative penalties are applicable, the more severe penalty, typically the criminal one, takes precedence, inhibiting the administrative sanction.
Both Criminal Law and Administrative Law serve punitive functions. However, Criminal Law operates under the ultima ratio principle, acting as the State’s last resort for punishment. It addresses serious violations of legal goods, particularly the most important ones, and is employed only when other legal and social control mechanisms prove inadequate.
2) Determining Jurisdiction in a Cross-Border Crime
Consider a scenario involving a letter bomb sent from France to Spain, where the recipient (B) sustains serious injuries while attempting to open it. Determining the jurisdiction for this crime under Spanish Criminal Law involves considering different theories:
- The theory of activity focuses on the country where the criminal act originated (France).
- The theory of the result considers the location where the consequences of the crime occurred (Spain).
- The theory of ubiquity takes both criteria into account, aiming to avoid impunity. This theory is often considered the most effective in ensuring that the perpetrator faces consequences.
While Spanish criminal law lacks an explicit rule, the 1995 Criminal Code leans towards the activity theory. If France were to apply this theory, the crime would fall under its jurisdiction. However, if France were to adopt the result theory, a jurisdictional conflict might arise, potentially leading to the application of the extra principle of justice, where a country assumes jurisdiction if the other declines.
3) The Principle of the Act
The principle of the act mandates that only externalized behaviors that infringe upon the protected rights of others are considered criminal. This principle decriminalizes certain thoughts or self-injurious acts that do not harm others.
4) Jurisdiction of the International Criminal Court
The International Criminal Court (ICC) has jurisdiction over crimes committed by nationals of signatory countries and acts committed within those countries. It’s important to note that the ICC’s jurisdiction is not retroactive. The court’s jurisdiction covers crimes such as genocide, crimes against humanity, war crimes, aggression, and false testimony before the court. The ICC operates under the principles of legality, non-retroactivity, and guilt. Penalties can range up to 30 years imprisonment or life imprisonment if deemed necessary.
5) The Impact of Age on Criminal Responsibility
According to the latest reform of the Juvenile Criminal Responsibility Act, children under 14 are not considered criminally responsible. Children aged between 14 and 18 are subject to a specific liability regime with reduced accountability, as outlined in the Juvenile Criminal Responsibility Act. This framework differs from the adult criminal justice system in terms of consequences and implementation. Furthermore, children are categorized into two age groups: 14-15 and 16-18, with the younger group facing less severe consequences. Young adults aged 18-21 may still be subject to the provisions of the Juvenile Criminal Responsibility Act under certain circumstances.
6) Criminal Laws in White and Their Challenges
Criminal laws in white are incomplete laws where the legal consequence is defined, but the essential elements of the offense are not fully established within the law itself. These elements are supplemented by another law, typically of lower rank. This practice raises concerns regarding the principle of legality and the principle of legal reserve, as regulations (lower-ranking rules) are not typically subject to parliamentary scrutiny. It can also lead to vague or imprecise standards, making it difficult to determine the exact definition of a punishable offense.
The Constitutional Court has addressed the constitutionality of criminal laws in white, stipulating that they must meet specific criteria:
- The reference to the supplementary law must be express and specific.
- The criminal standard must be strictly necessary.
- The reference should only pertain to details; the core elements of the offense must be established within the criminal law itself.
- The criminal standard should always contain the penalty, not the regulation.
Regarding the potential for regional authorities (CCAA) to influence the definition of criminal offenses through these supplementary regulations, the Constitutional Court has clarified that the role of the CCAA is not to establish offenses but to specify their implementation in certain aspects. While some critics argue that this could lead to variations in criminal definitions across different regions, the Constitutional Court considers this a logical consequence of the autonomous system established by the Spanish Constitution.
7) Systems for Determining Fines in the Spanish Criminal Code
Currently, the Spanish Criminal Code employs two systems for determining fines, both of which consider the economic circumstances of the convicted individual. This approach addresses concerns about the fairness of fixed penalties, recognizing that they may have disparate impacts on individuals with varying financial capacities.
The first system, known as the day-fine system, utilizes two scales. The first scale considers the severity of the crime and its circumstances, establishing a daily fine amount, with a minimum of 10 days and a maximum of two years. The second scale takes into account the offender’s economic capacity, setting a monetary value per day, ranging from €2 to €400.
The second system, referred to as the proportional system, determines fines based on the harm caused, considering both the economic and personal circumstances of the offender. However, it does not employ a daily or quota-based approach.
8) Penalty Calculation for Complicity in a Crime with Aggravating Circumstances
Consider a scenario where the penalty for making written threats is imprisonment for 1-5 years, with the offense falling within the upper half of the penalty range. If an accomplice participates in this crime and an aggravating circumstance is present, the penalty calculation proceeds as follows:
- Upper half of the penalty range: 3-5 years.
- Reduction for accomplice status: The penalty is reduced by one degree. The minimum becomes the lower limit of the base penalty range minus 50%, and the maximum becomes the minimum of the base penalty range minus one day. This results in a range of 1 year and 6 months to 3 years less one day.
- Aggravating circumstance: The broader penalty range is considered, resulting in a range of approximately 2 years and 2 months to 3 years less one day.
9) Immunity vs. Inviolability
Inviolability provides complete exemption from criminal liability for certain individuals in specific roles to protect the integrity of public functions. Examples include the inviolability of the Head of State and the inviolability of deputies and senators during the exercise of their duties, particularly concerning crimes against honor.
Immunity, on the other hand, offers limited protection from prosecution for individuals holding significant public positions. It aims to safeguard their freedom of action by requiring non-judicial authorization from a competent authority before initiating prosecution. Examples include parliamentary immunity for members of parliament and MEPs, as well as exemptions from Spanish jurisdiction for foreign Heads of State.
10) Legal Response to Violation of Suspended Sentence Conditions
In a case where a one-year prison sentence for a crime is suspended for three years, with the condition that the offender must not approach or communicate with the victim, a violation of this condition after six months would trigger a legal response. While re-offending would lead to immediate revocation of the suspension, a mere breach of conditions allows the judge to consider three options:
- Modification of conditions: The judge can replace the existing condition with a new one if compliance proves difficult.
- Extension of the suspension period: The judge can extend the suspension period, requiring the offender to remain compliant for a longer duration.
- Revocation of the suspension: The judge can revoke the suspension and order the execution of the original sentence.
The judge’s decision must be justified in any case.