Territorial Scope of Criminal Law in Spain

Posted on May 12, 2024 in Law & Jurisprudence

Lesson 15: Territorial Scope of Criminal Law

The Principle of Territoriality

Article 23 of the Judicial Power Act states that acts committed in Spanish territory are governed by Spanish law, regardless of the perpetrators or victims. In principle and exclusively, Spanish law does not extend beyond its borders because the Spanish state has no interest beyond its borders when it comes to trying and acquiring sovereignty. The non-enforcement in space affects several areas: political rights, interstate law… It shall be a general rule with some exceptions.

In the Spanish case, exceptions to this principle of territoriality are outlined in Article 23 of the Judicial Power Act, which includes three scenarios that allow the application of Spanish law to facts outside the national territory: the real or protective principle, the principle of personality or nationality, and the principle of universality or global justice.

Concept of Territory

The national territory encompasses land (continental or insular) and inland areas (within borders), including the headquarters of diplomatic missions in Spain. A different question is the principle of inviolability (because of the person) that people have engaged in certain headquarters all over the country and would be judged by the law of their countries. For the purposes of competition, a crime committed in the French embassy in Madrid falls under Spanish law.

The country is also composed of the territorial sea to an extent of about twelve nautical miles, the air space over land and continental sea. Also considered Spanish territory are Spanish customs controls, even if they are physically built on foreign soil. Spanish ships and military aircraft are also considered Spanish territory, regardless of their location. Military aircraft flying the Spanish flag are always considered national territory. The problem arises in the case of commercial aircraft, which are generally subject to territoriality, but specific cases may be questioned (when commercial aircraft are on international waters or international airspace, they have the nationality of the flag, but when they are in the territory of another country, they are normally subject to the laws of that country).

A preliminary question is to decide the place of commission of the crime since there may be offenses that begin in one country and continue in another. The competition has been attributed depending on three principles:

1. Principle of Activity

This means the offense is judged at the site of initiation.

2. Beginning of the Result

This means the offense is judged at the place that produced the result.

3. Principle of Ubiquity

This means the offense is judged in all places that have taken place both the initiation and outcome.

The case has been applying logic. The fraud case is a very controversial case, and different conclusions can be reached: where the deception occurs, where the exchange of assets occurs… There will also be the basis to judge each case individually, i.e., the specific circumstances. Some laws expressly state the governing principle (as in the case of money laundering, which points to the principle of ubiquity).

General Exceptions to the Rule of Territory

These exceptions are referred to in Article 23 of the Judicial Power Act and enable a crime to be prosecuted in Spain even though it was committed outside national territory.

1. Real Principle of Protection or Defense

This principle is reserved for cases in which fundamental interests of the Spanish State are infringed and is included, regardless of whether they are committed by nationals or foreigners, in paragraph 3 of Article 23 of the LOPJ. According to this principle, the following offenses correspond to Spanish jurisdiction:

  • Treason and offenses against the peace or independence of the State.
  • Offenses against the Head of State, his consort, his successor, or the regent.
  • Rebellion and sedition.
  • Counterfeiting the actual signature or stamp, the stamp of the State, Ministers’ signatures and stamps, or public officials.
  • Counterfeiting and forgery of Spanish currency.
  • Any other offense directly detrimental to the credit or interests of the State, and the introduction or shipment of counterfeit goods.
  • Attacks on Spanish officials or public employees committed in the exercise of their functions abroad.
  • Crimes against public administration in Spain.
  • Offenses relating to exchange control.

2. Principle of Nationality or Personality

This principle is set out in paragraph 2 of Article 23 of the Judicial Power Act and represents the consecration of the personal state. According to this principle, the criminal law of a country applies to its own citizens, irrespective of where the acts are committed. It is an active personality, not passive, i.e., acts committed by Spanish citizens, not against Spaniards. For this principle to apply to citizens, the following conditions are necessary:

  1. That the act is punishable in the place where it occurs.
  2. That the victim or the prosecutor reports or files a complaint, or that proceedings are brought before the Spanish courts.
  3. That the offender has not been acquitted, pardoned, or punished abroad; if he has only partially served his sentence, this will be taken into account for a proportional reduction of the sentence to be imposed.

3. Principle of Universal or Global Justice

This principle is recognized in comparative criminal law. Almost all countries recognize this principle. It is a fundamental rule that respects dual criminality (both in the place where the acts are committed and in Spain, those facts are considered a crime). It is stated in number 4 of Article 23 of the Judicial Power Act, and according to this principle, any state is competent (and as far as Spain is concerned) Spain would have jurisdiction to try any offender, regardless of their nationality, for attacks against the interests of the international community:

  • Genocide.
  • Terrorism.
  • Piracy and hijacking of aircraft.
  • Crimes against international law.
  • Counterfeiting.
  • Crimes relating to prostitution and corruption of minors or incapacitated persons.
  • Illegal trafficking of psychotropic, toxic, and narcotic drugs.
  • Offenses relating to female genital mutilation, if those responsible are in Spain.
  • And any other offense that, according to treaties or international agreements, should be prosecuted in Spain.

These offenses are tried as international crimes affecting interests related to international competition and that often require an international infrastructure.

4. Principle of Extra Justice

NO. While we are discussing this here, it does not mean that it is one of these three principles. It is simply a comment to make it clear that it is a principle that has been requested to be introduced into Spanish legislation but was not accepted. According to this principle, if any, Spain would be competent to judge those facts which logically should be judged in Spain but are not credited with the competition of any of the above principles, and the country or countries that should judge them do not judge that they have jurisdiction.