Authorship and Criminal Involvement in Spanish Criminal Law
Authorship and Criminal Involvement
The offense can be committed by one or more persons, acting individually or together. When multiple individuals are involved, we refer to them as co-offenders. Among those involved, there can be a division of responsibilities: the principal author (whose act constitutes the offense) and others who provide assistance, known as participants.
Concept of Authorship
There are several concepts of authorship:
- Unitary Concept: Anyone who contributes in any way to the offense’s realization, regardless of their level of involvement, is considered an author. This concept treats all participants equally, blurring the lines between authorship, inducement, and complicity.
- Extensive Concept: All participants’ causal contributions are considered equal, making them all authors. Participation, in this view, merely affects the severity of the penalty.
- Subjective Concept: The focus is on the individual’s perception of their role. An author views the act as their own, possessing an “animus auctori,” while participants have a “socii animus,” indicating a collaborative mindset.
- Restrictive Concept: The author is the one who performs the action described in the legal definition of the crime. Criminal involvement extends penalties to those whose actions, while not themselves criminal, causally contribute to the offense.
Within the restrictive concept, three criteria exist:
- Objective-Formal Theory: The author performs the action described in the law. Participants make lesser contributions. Criticism: This theory struggles with co-authorship scenarios.
- Material-Objective Theory: The author is the one whose actions directly cause the result. Those who merely contribute a condition for the result are accomplices. Criticism: This theory may misclassify significant contributions as mere involvement.
- Theory of Domain of the Fact (Objective-Subjective Theory): Developed by Welzel and Roxin, this theory emphasizes control over the course of events. The author has the power to stop the offense. Participants merely assist in the decision or execution. Problem: This theory is inadequate for reckless crimes where the subject lacks conscious control.
Concept of Authorship in the Spanish Criminal Code
According to the Spanish Criminal Code, the author is the one who performs the unlawful act. Article 28.1 states that authors are those who commit the act themselves, jointly, or through another who serves as an instrument. Article 28.2 also considers as authors those who directly induce others to commit the act or cooperate in its execution with an act without which it would not have been committed.
Direct Authorship
- Perpetrator: The perpetrator carries out the act themselves.
- Indirect Perpetrator (“man behind” the act): Uses another person as an instrument. The indirect perpetrator is responsible as if they had committed the act themselves, while the instrument may go unpunished.
Indirect perpetration is not possible when:
- The instrument acts intentionally (this constitutes participation).
- The crime requires specific personal qualities the instrument lacks.
Co-authorship
Co-authors commit the offense together, having agreed to do so. They consider the event as their own. All co-authors must fulfill the criteria for authorship. Theories of co-authorship include the objective-formal and objective-subjective theories.
Consequences of Co-authorship:
- Reciprocal imputation of all contributions.
- Co-authorship is not possible in crimes of omission.
- In crimes requiring specific personal qualities, all co-authors must possess those qualities.
Accessory Authorship differs from co-authorship in that there is no prior agreement, but the combined actions of two or more individuals produce a result that would not have occurred without their joint intervention. Responsibility is determined individually.