Spanish Criminal Code Reform of 2010: Key Changes and Implications
CRIMINAL CODE REFORM 2010: Probation as a security measure, as an alternative to the unlimited prolongation of imprisonment. For inmates whose rehabilitation is doubtful. A penalty of permanent location is provided as an alternative to prison sentences or the main penalty in cases of repeated theft. Articles containing the limits of penalties (105, 107, 108) were reformed, typing harder for confiscation, and the penalties it entails. Articles 127, 128, 129 regulate new accessory consequences for seizure, for crimes committed by legal persons, companies, and computer crimes. Penalties for certain crimes such as pedophilia were increased. The Criminal Code changes the future of the previous 150 articles. Among other developments, terrorist crimes and sexual abuse penalties, especially those committed against minors, and both public and private corruption, will not prescribe.
Another novelty is the possibility of surveillance of a person released after serving a sentence for terrorism or pedophilia. The Criminal Code abolishes prison sentences for those who sell audiovisual material without permission—called ‘top-manta’—when the benefit is less than 400 euros. It may still be punished by imprisonment of one to two years for squatters who violently occupy a building. New assumptions are categorized as private corruption, harassment, real estate investor fraud, internet offenses, and the introduction for the first time in the Spanish penal system of criminal liability of legal persons, in order to end the so-called ‘organized irresponsibility’, and end impunity for those who take advantage of the anonymity offered by legal persons seeking to commit crimes.
The responsibility of legal persons has opted for a double track. Along with the charge of offenses committed in their name or on their behalf and to their advantage, for people who have power of representation in them, add the responsibility for those violations where the legal person did not exercise due control over their employees, naturally with the necessary consideration of the circumstances of the case in order to avoid a purely objective reading of this rule of imputation. It is made clear that the criminal liability of a legal person may be declared whether or not the criminal responsibility of the individual can be identified. Consequently, it deletes the existing paragraph 2 of Article 31 of the Criminal Code.
ITEM 14: ULTRACTIVITY… Ultra-activity: application of a law to events that occurred after its repeal. Retroactivity: Application of a statute to events that occurred prior to its repeal. The rule is given by the CC which states that, in principle, all standards are non-retroactive, unless the legislature says otherwise. The exception is found in art. 2, CP, and art. 9.3 of the EC, which says they will be retroactive if favorable to the defendant. Thus, if in doubt, over two penalties, the defendant will be heard first, his preference, although this means that the judge has to do what it says. The TS has some criteria for assessing what penalty could be considered more favorable; more favorable financial penalties, sentences of freedom. When comparing penalties to see which is more favorable, the main and accessory penalties are always compared. A choice of penalties which are more favorable is not possible to apply the articles of a more favorable law and another more favorable, but you have to choose one of two comprehensive laws.
With maximum penalties of two equal, the more favorable is the one with the lower limit. Conflict of Non-Retroactivity Assumptions: Laws that complement criminal law, i.e., white laws, will apply retroactively if the laws are always more favorable. Laws provided retroactive liability, unless the legislature says otherwise. Procedural law is subject to the general retroactivity rule. Laws regulating extradition can apply the principle of retroactivity to the most favorable. Security measures will apply the same as art. 2 of the CP, i.e., the most favorable. Retroactive law amounts that change: Retroactive law rather favorable. Intermediate Laws, They Always Apply: A man commits a crime when a law is in force, but is then repealed; prosecution is under another law, which is then repealed by a third. In this case, the law will be judged by the intermediate law (the second). Temporary Law and Exception: Those that come into force with a period set by the law itself, and to address a particular situation. They cease to apply when the term is fulfilled, or the passing of the situation for which it was created.