ORGANIC LAW 10/1995, On the Penal Code (BOE 24-XI-1995)
DEGREE SCROLL PRELIMINARY
Criminal safeguards and the application of the criminal law
article 1.
1. No act or omission shall be punishable unless it is punishable by law prior to its commission.
2. Security measures may only be applied when the conditions previously established by law are met.
article 2.
1. No offence shall be punishable by a penalty not provided for by a law enacted prior to its commission. Likewise, laws establishing security measures shall not have retroactive effect.
2. However, those criminal laws that favour the offender shall have retroactive effect, even if at the time they enter into force a final sentence has been passed and the offender is serving a sentence. In the event of doubt as to which law is more favourable, the offender shall be heard. Acts committed while a temporary law was in force shall nevertheless be tried in accordance with that law, unless expressly provided otherwise.
article 3.
1. No penalty or security measure may be enforced except by virtue of a final judgment handed down by the competent judge or court, at agreement in accordance with the procedural laws.
2. Nor may a sentence or security measure be executed in any other form than that prescribed by the Law and regulations that develop it, nor with other circumstances or accidents than those expressed in its text. The execution of the penalty or security measure shall be carried out under the control of the competent Judges and Courts.
article 4.
1. The criminal laws shall not apply to cases other than those expressly provided for therein.
2. In the event that a Judge or Court, in the exercise of his jurisdiction, has knowledge of any act or omission which, although not punishable by law, he considers worthy of punishment, he shall refrain from any procedure action or omission and shall explain to the Government the reasons he has for believing that it should be subject to criminal sanction.
3. In the same way, he or she shall also approach the Government with a request for the repeal or modification of the precept or the granting of a pardon, without prejudice to the immediate execution of the sentence, when the rigorous application of the provisions of the Law results in the punishment of an action or omission which, in the opinion of the Judge or Court, should not be punished, or when the penalty is notably excessive, taking into account the harm caused by the offence and the personal circumstances of the offender.
4. If there is a petition for pardon, and the Judge or Court has decided in a well-founded decision that the serving of the sentence may violate the right to a trial without undue delay, it shall suspend the execution of the sentence until such time as a decision has been taken on the petition.
The judge or court may also order the execution of the sentence, pending a decision on the pardon, at fail if, if the sentence were executed, the purpose of the pardon would be illusory.
article 5.
There is no penalty without intent or recklessness.
article 6.
1. Security measures are based on the criminal dangerousness of the subject on whom they are imposed, externalised in the commission of an act foreseen as an offence.
2. Security measures may not be more severe or of longer duration than the penalty applicable in the abstract to the offence committed, nor exceed the limit of what is necessary to prevent the dangerousness of the offender.
article 7.
For the purpose of determining the applicable criminal law in time, offences are considered to be committed at the moment when the subject performs the action or omits the act he was obliged to perform.
article 8.
Acts which may be classified under two or more provisions of this Code, and which are not covered by Articles 73 to 77, shall be punished in accordance with the following rules:
1. The special precept shall be applied in preference to the general one.
2. The subsidiary provision shall only be applied in the absence of the main provision, whether such subsidiarity is expressly declared or tacitly deductible.
3. The broader or more complex penal precept will absorb those that punish the offences consummated in the former.
4. In the absence of the above criteria, the most serious criminal precept shall exclude those which punish the act with a lesser penalty.
article 9.
The provisions of this degree scroll shall apply to offences punishable under special laws. The remaining provisions of this Code shall apply as supplementary provisions where they do not expressly provide for them.
BOOK I
General provisions on offences, persons responsible, penalties, security measures and other consequences of criminal offences.
DEGREE SCROLL I
Criminal offence
CHAPTER I
Offences
article 11.
Crimes that consist of the production of a result shall only be understood to be committed by omission when the non-avoidance of the same, by infringing a special legal duty of the perpetrator, is equivalent, according to the meaning of the text of the law, to its causation. For this purpose, omission shall be equated with action:
a) Where there is a specific legal or contractual obligation to act.
b) When the omitting party has created an occasion of risk for the legally protected property by means of a preceding act or omission.
article 12.
Reckless acts or omissions shall only be punishable when expressly provided for by law.
article 13.
1. Serious offences are offences punishable by law with a serious penalty.
Misdemeanours are offences punishable by law with a lesser penalty.
Minor offences are offences punishable by law with a minor penalty.
4. Where the penalty, by virtue of its extent, can be included both among those referred to in the first two numbers of this article, the offence shall in any case be considered as serious. Where the penalty, by virtue of its extent, may be regarded as both minor and less serious, the offence shall in any case be regarded as minor.
article 14.
1. Invincible error as to a fact constituting a criminal offence excludes criminal liability. If the error, having regard to the circumstances of the act and the personal circumstances of the perpetrator, is reversible, the offence shall be punished, where appropriate, as imprudent.
2. Error as to a fact which qualifies the offence or as to an aggravating circumstance shall preclude the assessment of the offence.
3. Invincible error as to the unlawfulness of the act constituting the criminal offence excludes criminal liability. If the error is reversible, the penalty shall be one or two sentences lower Degrees.
article 15.
Completed and attempted offences are punishable.
article 16.
1. There is an attempt when the subject starts the execution of the offence directly through external acts, carrying out all or part of the acts that objectively should produce the offence result, and nevertheless it does not take place for reasons independent of the perpetrator's will.
2. Exempt Anyone who voluntarily avoids the commission of the offence, either by desisting from the execution already begun or by preventing the production of the offence result, without prejudice to the liability they may have incurred for the acts carried out, if they already constitute another offence, shall be held criminally liable for the offence attempted.
3. When an act involves several parties, the party or parties who desist from the execution already begun and seriously, firmly and resolutely prevent or attempt to prevent its completion shall be exempt from criminal liability, without prejudice to the liability they may have incurred for the acts executed, if they already constitute another offence.
article 17.
1. Conspiracy exists when two or more persons conspire for the execution of an offence and resolve to execute it.
2. A proposition exists when the person who has resolved to commit an offence invites another person or persons to participate in it.
3. Conspiracy and proposition to commit a crime shall be punishable only in cases specially provided for by law.
article 18.
1. Provocation exists when an offence is directly incited by means of printing, broadcasting or any other similarly effective means, which facilitates the advertising, or in the presence of a concurrence of persons, to the perpetration of an offence.
Apology, for the purposes of this Code, is exhibition, before a gathering of people or by any means of dissemination, of ideas or doctrines that glorify the crime or extol its perpetrator. Apology will only be a criminal offence as a form of provocation and if by its nature and circumstances it constitutes a direct incitement to commit a crime.
2. Provocation shall be punishable only in cases where the law so provides.
If the provocation was followed by the commission of the offence, it is punishable as instigation.
CHAPTER II
The grounds for exemption from criminal liability
article 19.
Persons under eighteen years of age shall not be criminally liable under this Code.
When a minor of that age commits a criminal offence, he or she may be manager in accordance with the provisions of the law governing the criminal liability of minors.
article 20.
They are exempt from criminal liability:
1. Anyone who at the time of committing the criminal offence, due to any mental anomaly or alteration, is unable to understand the unlawfulness of the act or to act in accordance with this understanding.
Transitory mental disorder shall not exempt from punishment when it was provoked by the subject with the aim of committing the offence or when he/she had foreseen or should have foreseen the commission of the offence, purpose .
purpose 2. Anyone who at the time of committing the criminal offence is in a state of complete intoxication due to the consumption of alcoholic beverages, toxic drugs, narcotics, psychotropic substances or others which produce similar effects, provided that this was not sought with the aim of committing the offence or the offence was not foreseen or should not have been foreseen, or is under the influence of a withdrawal syndrome, due to dependence on such substances, which prevents them from understanding the unlawfulness of the act or acting in accordance with this understanding.
3. Anyone whose awareness of reality is seriously altered as a result of suffering alterations in perception from birth or childhood.
4. Anyone acting in defence of their own person or rights or those of others, provided that the following requirements are present:
First. Unlawful aggression. In the case of defence of property, unlawful aggression shall be considered to be an attack on such property that constitutes a crime and places it in serious danger of imminent deterioration or loss. In the case of defence of the dwelling or its dependencies, unlawful aggression shall be considered to be unlawful aggression if the attack on the dwelling or its dependencies is unlawful entrance .
Second. Rational necessity of the means employee to prevent or repel it.
Third. Lack of sufficient provocation on the part of the defender.
5.º Anyone who, in a state of necessity, in order to avoid harm to themselves or another person, injures another person's legal property or breaches a duty, provided that the following conditions are met requirements:
First. The harm caused is not greater than the harm to be avoided.
Secondly. That the status of necessity has not been intentionally provoked by the subject.
Third. That the needy person is not, because of his official document or position, obliged to sacrifice himself.
6. Anyone who acts driven by insurmountable fear.
7. Anyone who acts in the performance of a duty or in the legitimate exercise of a right, official document or position.
In the cases of the first three numbers, the security measures provided for in this Code shall be applied, where appropriate.
CHAPTER III
Circumstances mitigating criminal liability
article 21.
These are extenuating circumstances:
1.ª The causes set out in the previous chapter, when all the necessary requirements to exempt from liability in their respective cases do not concur.
2. That of the offender acting as a result of his or her serious addiction to the substances mentioned in issue 2. of the previous article .
3. acting from causes or stimuli so powerful that they have produced rapture, obsession or any other state of passion of a similar nature.
4.ª That of the offender having proceeded, before knowing that the judicial procedure is directed against him, to confess the offence to the authorities.
5.ª That of the guilty party having proceeded to repair the damage caused to the victim, or to reduce its effects, at any time of procedure and prior to the oral trial.
6.ª Extraordinary and undue delay in the processing of procedure, provided that it is not attributable to the defendant himself and that it is not proportionate to the complexity of the case.
7.ª Any other circumstance of similar significance to the above.
CHAPTER IV
Circumstances aggravating criminal liability
article 22.
These are aggravating circumstances:
1. To carry out the act with malice aforethought.
There is premeditation when the offender commits any of the crimes against persons by using means, ways or forms that directly or especially tend to ensure it, without the risk to his person that could arise from the defence by the offended party.
2. Carrying out the act by disguise, with abuse of superiority or taking advantage of the circumstances of place, time or the assistance of other persons that weaken the defence of the offended party or facilitate the impunity of the offender.
3.ª Executing the act by means of a price, reward or promise.
4.ª Committing the offence for racist or anti-Semitic motives or any other class of discrimination referring to the ideology, religion or beliefs of the victim, the ethnic group, race or nation to which they belong, their sex, sexual orientation or identity, gender reasons, the illness they suffer from or their disability.
5. Deliberately and inhumanely increasing the suffering of the victim, causing them unnecessary suffering for the execution of the offence.
6th Acting in breach of trust.
7.ª To take advantage of the public nature of the guilty party.
8.ª Being a repeat offender.
Recidivism occurs when, at the time of the offence, the offender has been convicted of an offence under the same degree scroll of this Code, provided that it is of the same nature.
For the purposes of this issue , criminal records that have been or should have been expunged, as well as those corresponding to minor offences, will not be taken into account.
Final convictions by judges or courts imposed in other European Union States will produce the effects of recidivism unless the criminal record has been or could be cancelled under Spanish law.
CHAPTER V
The mixed circumstance of kinship
article 23.
It is a circumstance that may mitigate or aggravate liability, depending on the nature, motives and effects of the offence, to be or to have been the offender's spouse or person who is or has been in a stable relationship of analogous affectivity, or to be an ascendant, descendant or sibling by nature or adoption of the offender or of his/her spouse or cohabitant.
CHAPTER VI
General provisions
article 24.
1. For the purposes of criminal law, an authority shall be considered to be anyone who, alone or as a member of a corporation, court or collegiate body, has command or exercises their own jurisdiction. In any case, members of the congress of the Deputies, the Senate, the Legislative Assemblies of the Autonomous Communities and the European Parliament shall be considered as authorities. Officials of the Public Prosecutor's Office shall also be considered authorities.
2. A civil servant shall be considered to be any person who by immediate provision of law or by election or by appointment by a competent authority is engaged in the performance of public duties.
article 25.
For the purposes of this Code, disability is defined as status as a person with permanent physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may limit or impede his or her full and effective participation in society on an equal basis with others.
Likewise, for the purposes of this Code, a person with disabilities in need of special protection shall be understood as a person with disabilities who, whether or not their capacity to act has been judicially modified, requires attendance or support for the exercise of their legal capacity and for making decisions regarding their person, their rights or interests due to their permanent intellectual or mental deficiencies.
article 26.
For the purposes of this Code, a document is considered to be any material support that expresses or incorporates data, facts or narratives with evidentiary effect or any other subject of legal relevance.
DEGREE SCROLL II
Persons criminally responsible for the offences
article 27.
Perpetrators and accomplices are criminally liable for the offences.
article 28.
Perpetrators are those who carry out the act alone, jointly or through another person whom they use as an instrument.
They will also be considered authors:
a) Those who directly induce another or others to execute it.
b) Those who cooperate in its execution by an act without which it would not have been carried out.
article 29.
Accomplices are those who, not being included in article above, cooperate in the execution of the act with previous or simultaneous acts.
article 30.
1. In offences committed using mechanical means or media, neither the accomplices nor those who have favoured them staff or have actually favoured them shall be criminally liable.
2. The authors referred to in article 28 shall respond in a staggered, exclusive and subsidiary manner to agreement in the following order:
1. Those who have actually drafted the text or produced the sign in question, and those who have induced them to do so.
2. The directors of the publication or programme in which it is disseminated.
3. The directors of the publishing, broadcasting or disseminating business .
4. The directors of the business recorder, player or printer.
3. When for any reason other than the extinction of criminal liability, including the declaration of default or residency program outside Spain, none of the persons included in any of the numbers of the previous section can be prosecuted, the procedure will be directed against those mentioned in the immediately following issue .
article 31.
Anyone who acts as a de facto or de jure administrator of a legal person, or in the name or on behalf or legal or voluntary representation of another, shall be personally liable, even if the conditions, qualities or relationships that the corresponding offence requires in order to be an active subject of the offence are not present in him/her, if such circumstances are present in the entity or person in whose name or on whose behalf he/she acts.
article 31a.
1. In the cases provided for in this Code, legal persons shall be criminally liable:
a) offences committed in the name or on behalf of, and for the direct or indirect benefit of, the legal person by its legal representatives or by those who, acting individually or as members of an organ of the legal person, are authorised to take decisions on behalf of the legal person or who have organisational and controlling powers within the legal person Schools .
b) Offences committed, in the exercise of social activities and on behalf of and for the direct or indirect benefit of the same, by those who, being subject to the authority of the natural persons mentioned in the previous paragraph, have been able to carry out the acts because they have seriously failed to comply with their duties of supervision, monitoring and control of their activity, taking into account the specific circumstances of the case.
2. If the offence is committed by the persons referred to in section a) above, the legal person shall be exempted from liability if the following conditions are fulfilled:
1. the management body has adopted and effectively implemented, prior to the commission of the offence, organisational models and management that include the appropriate monitoring and control measures to prevent offences of the same nature or to significantly reduce the risk of their commission;
2. the supervision of the functioning and compliance of the implemented prevention model has been entrusted to an organ of the legal person with autonomous powers of initiative and control or which is legally entrusted with the function of supervising the effectiveness of the legal person's internal controls;
3. the individual perpetrators have committed the offence by fraudulently circumventing the organisational and preventive models, and
4.ª there has been no omission or insufficient exercise of its supervisory, monitoring and control functions by the body referred to in condition 2.ª.
In cases in which the above circumstances can only be the subject of a partial accreditation , this circumstance will be assessed for the purpose of mitigating the sentence.
3. In the case of small legal persons, the supervisory functions referred to in Condition 2 of section 2 may be assumed directly by the administrative body. For these purposes, small legal entities are those which, according to the applicable legislation, are authorised to submit abridged profit and loss accounts.
4. If the offence was committed by the persons referred to in section 1(b), the legal person shall be exempted from liability if, prior to the commission of the offence, it has adopted and effectively implemented an organisational model and management that is adequate to prevent offences of the nature of the offence committed or to significantly reduce the risk of its commission.
In this case, the mitigation provided for in the second paragraph of section 2 of this article is also applicable.
5. The organisational models and management referred to in condition 1 of section 2 and section above shall comply with the following requirements:
1. Identify the activities in whose scope the offences to be prevented may be committed.
2. They shall establish the protocols or procedures that specify the process of training of the will of the legal person, the adoption of decisions and the execution of the same in relation to them.
3. They shall have models of management of the appropriate financial resources to prevent the commission of the crimes to be prevented.
4. Impose the obligation to report possible risks and non-compliance to the body responsible for monitoring the operation and observance of model of prevention.
5. They shall establish a disciplinary system that adequately sanctions non-compliance with the measures established at model.
6. They shall periodically check the model and any amendments thereto when relevant breaches of its provisions are revealed, or when changes occur in the organisation, control structure or activity carried out that make them necessary.
article 31b.
1. The criminal liability of legal persons shall be enforceable whenever it is established that an offence has been committed by the person holding the offices or functions referred to in the previous article , even when the specific natural person manager has not been identified or it has not been possible to direct the procedure against them. When, as a consequence of the same acts, a fine is imposed on both of them, the judges or courts shall adjust the respective amounts so that the resulting sum is not disproportionate to the seriousness of the acts.
2. The concurrence, in the persons who have materially carried out the acts or in those who have made them possible by not having exercised due control, of circumstances that affect the guilt of the accused or aggravate their liability, or the fact that these persons have died or have escaped prosecution, shall not exclude or modify the criminal liability of legal persons, without prejudice to the provisions of the following article .
article 31c.
1. The following activities may only be considered as mitigating circumstances for the criminal liability of legal persons if they have carried out the following activities after the commission of the offence and through their legal representatives:
(a) before becoming aware that the offence is being prosecuted, to have made a confession of the offence to the authorities at procedure .
b) To have collaborated in the research of the act by providing evidence, at any time during the proceedings, that was new and decisive for clarifying the criminal responsibilities arising from the facts.
c) At any time during the procedure and prior to the oral trial, have made reparation for or reduced the damage caused by the offence.
(d) have put in place, prior to the commencement of the trial, effective measures to prevent and detect future offences that may be committed with the means or under the cover of the legal person.
article 31 quinquies.
1. The provisions relating to the criminal liability of legal persons shall not apply to the State, territorial and institutional public administrations, regulatory bodies, agencies and public business entities, international organisations under public law, or others exercising public sovereign or administrative powers.
2. In the case of public commercial companies that execute public policies or provide services of general economic interest, only the penalties provided for in letters a) and g) of section 7 of article 33 may be imposed on them. This limitation shall not be applicable when the judge or court appreciates that it is a legal form created by its promoters, founders, administrators or representatives with the aim of avoiding possible criminal liability purpose .
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