Red Alert! Electoral crimes that threaten our democracy
May 30, 2024
Legitimate Defense in Spain: Analysis and STS 1565/23
May 30, 2024
Following on from our previous article on electoral crimes, and due to the questions that many of you have sent me, I am going to address this rather unknown subject, even for many lawyers, and that is that there are crimes that are not regulated in the Penal Code, and that we can find in other laws, which we will call SPECIAL CRIMINAL LAWS.
In the Spanish legal system, there are laws that complement and expand the provisions of the Penal Code. These laws address particular situations and establish specific offenses and sanctions to protect rights, combat specific forms of criminality and ensure legal certainty in various areas, and are created to address specific situations that require a differentiated approach tailored to particular needs and challenges.
The existence of these laws responds to the need to address particular situations that are not sufficiently regulated by the Penal Code.
The laws that include crimes "outside" the Penal Code are:
1.- MILITARY PENAL CODE. Organic Law 14/2015, of October 14.
The military sphere has its own criminal regulation, which punishes crimes committed by members of the armed forces and in some cases of the Civil Guard, as well as prisoners of war in case of armed conflict. As a curiosity, its application to civilians is possible in the case of some crimes (such as receiving and failure to comply with obligations contracted with the military administration).
The code itself defines the crimes and the penalties to which military personnel who commit the crimes described therein may be sentenced, with a prison sentence of up to 25 years' imprisonment.
The crimes are divided into: crimes against national security and defense, crimes against military discipline, crimes related to the exercise of fundamental rights and public liberties by the military, crimes against the duties of the service and crimes against the military patrimony, and among them we find some such as military treason, espionage, military sedition, insubordination, abandonment of service or the post of sentry, or desertion, among others.
2.- LAW FOR THE REPRESSION OF COUNTERFEITING.Organic Law 12/1995, of December 12, 1995.
This law defines and regulates only the crime of smuggling, and also regulates the civil liability that may arise from this crime, as well as other aspects related to confiscation and seized goods.
It is an extremely complex crime that deserves an article on its own. We will only say that among the conducts that are defined are the import, export, concealment, subtraction, possession or circulation of certain merchandise or goods such as tobacco, defense material, biological agents, wildlife specimens, toxic chemical substances or drug precursors.
This Law provides for penalties of up to 5 years imprisonment and fines of up to six times the value of the goods or effects.
As a curiosity to add that Royal Decree-Law 16/2018, of October 26, adopting certain measures to combat the illicit trafficking of persons and goods in relation to the vessels used complements this Law by adding as a prohibited genre the so-called "narco-boats".
3.- CRIMINAL AND PROCEDURAL LAW OF AIR NAVIGATION.Law 209/1964, of December 24, 1964.
(WARNING, not to be confused with Law 48/1960 on Air Navigation).
As can be seen, the law that regulates them is even earlier than our Constitution, (it is not even an Organic Law like the others) and since its promulgation it has not yet been modified so it still distinguishes between crimes and FALTAS, provides for penalties such as ARREST, PRISON AND CONVICTION (MAJOR AND MINOR), and the fines are established in PESETAS, as was done in the Spanish penal codes prior to 1995, and maintains references to articles of our C. P. that are not related to the crime in question since that code referred to was repealed (art. 45 of the 1964 law that punishes the mistreatment of a superior).P. that are not related to the crime in question, since that code to which they referred was repealed (art. 45 of the 1964 law, which punishes mistreatment of a superior, refers to article 420 of the C.P. for the grading of injuries [but this article currently regulates a form of bribery]).
It is a fairly extensive law, since it has 75 articles and in them is collected, typifies and punishes a series of behaviors that can occur inside an aircraft and ranging from those that threaten the safety in an aircraft, against air traffic, against the authority, against property, and even crimes of recklessness or inexperience in air traffic, and thus punish behaviors ranging from insults or abuse of work of the crew members to their superiors, to the destruction of the aircraft, through theft or theft committed by crew members inside the aircraft (which, in case you are interested to know, are punished with the penalty provided by the criminal code for the corresponding crime, but its maximum degree), the hijacking of the aircraft (punishable by imprisonment to the maximum degree), or even crewing an aircraft without registration or nationality marks and even crewing an aircraft having consumed narcotic substances or alcohol and under its influence (which is punishable with minor imprisonment or loss of the pilot's license, or both together).
In case you are interested, our courts have applied this pre-constitutional law in resolutions such as STS 183/2000 of February 15, AAP Balearic Islands 325/2017 of May 10 or more recently SAN (Section 4ª) 19/2021 of October 26.
4.- GENERAL ELECTORAL REGIME LAW 5/1985 of June 19, 1985.
In addition to regulating the electoral system of our country, this law regulates electoral crimes as well as the penalties that may be imposed for such crimes.
And so the crimes of vote buying and electoral fraud in general are punished, with penalties ranging from simple fines to 7 years in prison.
If you want to know a little more, I discussed it a little more in depth in this article:
ORGANIC LAW OF THE COURT OF JURY 5/1995, of May 22, 1995.
In its Second Additional Provision, this law introduces two offenses related to juries, and punishes the abandonment of functions by jurors, as well as the breach of the obligations of secrecy of the deliberations, punishing both conducts with a fine of up to 500,000 pesetas (we like to keep the laws with their original wording).
In conclusion, not all crimes that a person can commit are contained in the Penal Code, which is complemented by the five rules we have listed.
ADDENDUM: The maximum term of imprisonment corresponded to a sentence of between twenty-five and thirty years.
The minor prison sentence had a duration of six months and one day up to six years.
