Criminal and Civil Liability in the Spanish Penal Code
Person Liable
Criminal and Civil Liability
The criminally liable individual is also civilly liable (Art. 116.1 of the Spanish Penal Code). In cases involving multiple individuals charged with a crime (authors and accomplices), quotas are established for each participant. The various participants in the crime or misdemeanor are jointly and severally liable with each other for their respective shares and the corresponding alternative on the other, without prejudice to the right of recourse against them (Art. 116.2 of the Spanish Penal Code).
Cases of Mismatched Liability
There are instances where criminal liability may not align with the resulting civil offense:
- Cases where there is no criminal liability.
- Cases with civil liability and subsidiary criminal liability.
Liability in Cases of Certain Defenses
Article 118 of the Spanish Penal Code outlines rules governing liability in cases involving insanity, necessity, duress, and error, which may lead to exemption from criminal liability:
- Mental Disturbance or Altered Perception: In cases where the individual suffers from a mental disturbance or altered perception (defenses 1 and 3 of Art. 20), exempting them from criminal responsibility, the individuals who had them under their authority or who failed to exercise due diligence in their care are civilly liable. This “guilt in watching” is attributable to the responsible party, but it must be demonstrated and cannot be presumed.
- Intoxication: Individuals who are directly responsible for the civilian’s intoxication are civilly liable if the intoxicated individual is exempted from criminal responsibility (Art. 20.2 of the Spanish Penal Code).
- Necessity: In cases of necessity (Art. 20.5 of the Spanish Penal Code), those on whose behalf the harm was avoided are civilly liable, in proportion to the injury avoided (Art. 118.1.3a).
- Duress: In cases of duress (Art. 20.6), the individual who caused the fear and, alternatively, the individual who committed the act under duress are civilly liable.
- Error: In cases of error (Art. 14 of the Spanish Penal Code), potential exemption from liability does not eliminate the civil liability of those who committed the act (Art. 118.2).
General Principles of Liability
In most cases, the absence of guilt does not eliminate the underlying wrong. Therefore, the general principle is that only justifications eliminate both criminal and civil liability. For civil liability to exist, there must be a criminal offense. If the act is justified (e.g., self-defense or enforcement of a duty), no liability arises. Similarly, liability is preserved if there is a cause for exoneration (lack of blame or insurmountable fear).
State of Necessity and Error
The state of necessity and error can be considered justification and exoneration (error of type or prohibition, necessity proof):
- Necessity: Most legal doctrine suggests that the rule of liability in cases of necessity does not require the existence of a crime but aims to prevent unjust enrichment of those who benefit from the favorable resolution of the situation.
- Error: In cases where the absence of intent involves an unfair loss (invincible error), only civil liability exists even if there is no criminal act. This can be explained by the predominantly objective nature of civil liability ex delicto, which persists even in the absence of the subjective component of criminal wrongfulness.
Main and Subsidiary Civil Liabilities
Articles 120 and 121 of the Spanish Penal Code outline situations where vicarious liability is imposed on certain individuals in the absence of criminal liability. There is a primary individual responsible for the civil liability, but if they fail to fulfill their responsibility, the vicariously liable individual becomes responsible.
Vicarious Liability Situations (Art. 120)
- Parents and Guardians: Vicarious liability of parents and guardians for acts committed by individuals over 18 years of age under their custody or guardianship. This has generated significant jurisprudence regarding offenses committed by children using their parents’ vehicles. In these cases, vicarious liability only applies if the parent or guardian has been at fault or negligent (guilt in watching).
- Establishment Owners: Vicarious liability for owners of establishments where offenses are committed as a direct result of the violation of police regulations or provisions by the owners or their dependents. This is justified by the breach of duty of care, including fault in eligendo (choosing dependents) and guilt in watching (monitoring their performance).
- Media and Vehicles: Stricter vicarious liability is established for offenses committed by the media (Art. 120.2) and by vehicles used by employees of the owner (Art. 120.5).
- Companies and Businesses: Vicarious liability for companies, industries, or businesses for offenses committed by their employees “in the course of their duties or services” (Art. 120.4).
Rationale for Vicarious Liability
The rationale for requiring fault in vicarious liability or imposing strict liability seems to revolve around the principle of “deceased commodes, eius incommoda” (who benefits from a service should bear the injury). In cases of natural or legal persons liable for the unlawful acts of their employees, strict liability is established based on the control over the source of risk. This does not apply in cases of parental authority or guardianship and offenses committed within the physical space of an establishment by non-members.