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Recital of Motives Spanish Criminal Code 2016

ORGANIC ACT 10/1995 | DATED 23RD NOVEMBER | ON THE CRIMINAL CODE 2016 | JUAN CARLOS I | KING OF SPAIN

Recital of Motives Spanish Criminal Code 2016

ORGANIC ACT 10/1995 | DATED 23RD NOVEMBER | ON THE CRIMINAL CODE 2016 | JUAN CARLOS I | KING OF SPAIN

 

Recital of Motives

 

To all those who may see and understand the presents:

Be it known: That the Cortes have approved and I have given My Royal Assent to the following Organic Act:

If the legal order has been defined as a set of rules that regulate the use of force, one may easily understand the importance of the Criminal Code in any civilised society. The Criminal Code defines criminal and misdemeanours that constitute the cases for application of the supreme action that may be taken by the coercive power of the State, that is, criminal sentencing. Thus, the Criminal Code holds a key place in the Law as a whole, to the extent that, not without reason, it has been considered a sort of «Negative Constitution». The Criminal Code must protect the basic values and principles of our social coexistence. When those values and principles change, it must also change. However, in our country, in spite of profound changes in the social, economic and political orders, the current text dates, as far as its basic core is concerned, from the last century. The need for it to be reformed is thus undeniable.

Based on the different attempts at reform carried out since the establishment of democracy, the Government has prepared a bill submitted for discussion and approval by the both Chambers. Thus, it must explain, even though briefly, the criteria on which it is based, even though these may easily be deduced from reading its text.

The axis of those criteria has been, as is logical, that of positive adaptation of the new Criminal Code to the constitutional values. The changes this bill introduces in that direction are innumerable, although it is worthwhile pointing out some of these.

Firstly, a full reform of the present penalties system, in order for it to achieve the aims of re-socialisation assigned to it by the Constitution. The system proposed partially simplifies regulation of custodial sentences, while extending the possibilities of these being replaced by others that affect less basic legal assets and, on the other, introduces changes in monetary penalties, adopting a day-fine system and adding community service work.

Secondly, the existing antinomy between the principle of minimum intervention and the growing needs for protection in an increasingly more complex society have been dealt with, with a cautious approach to new kinds of criminal offence, although, in turn, eliminating criminal offences that have become obsolete. In the first sense, it is worth pointing out the introduction of criminal offences against the social and economic order, or the new provisions on criminal offences concerning organisation of the territory and natural resources; secondly, the disappearance of the complex figures of robbery with violence and personal threat that, having arisen in the context of combating highway robbery, should disappear, leaving the way to apply the general rules.

Thirdly, special emphasis has been placed on protecting fundamental rights and an attempt has been made to design the punitive instrument with special care wherever the exercise of any of these is at stake: for example, on one hand, specific protection of moral integrity, and on the other, the new regulation of criminal offences against honour. On specifically protecting moral integrity, citizens are granted greater protection against torture, and by defining criminal offences against honour in the manner proposed, freedom of expression is granted the full relevance it may and must be recognised under a democratic regime.

Fourthly, and in keeping with the objective of protecting and respecting fundamental rights, the regime of privilege enjoyed up to present by unlawful interference by civil servants in the rights and liberties of the citizens has been eliminated. Thus, it is proposed that arrests, entering and searching dwellings carried out by authorities or officers outside the cases allowed by the Law be treated as aggravating forms of the relevant common criminal offences, and not as they have been up to present, that is, as special criminal offences that, incomprehensibly and unjustifiably, had been mitigated.
 

Recital of Motives Spanish Criminal Code 2016

Recital of Motives Spanish Criminal Code 2016

 

Fifthly, an attempt has been made to advance on the path of real and effective equality, attempting to fulfil the task in that sense that is imposed upon the public powers by the Constitution. Certainly, the Criminal Code is not the most important instrument to carry out such task. However, it may contribute to it by eliminating regulations that are an obstacle to its realisation, or by introducing protective measures to deal with discriminatory situations. In addition to the regulations that grant specific protection against activities that tend toward discrimination, here one must mention the new regulation of criminal offences against sexual freedom. This is aimed at adapting the criminal offences classified to the legal asset protected, which is no longer, as it was historically, a woman’s honour, but rather the sexual freedom of all. Protection of a woman’s honour hid an intolerable discriminatory situation, which the new laws aim to totally eliminate. The novelty of the punitive techniques used may be surprising, but, in this case, moving away from tradition appears to be the correct thing to do.

Leaving the scope of principles and considering that of preparation techniques, this bill differs from the previous ones in its claim to be universal. The idea formally was that the Criminal Code had to include a complete regulation of the punitive power of the State. The starting point of this idea was already wrong, considering the importance of the powers of penalisation of the Administration in our country; what is more it was both unnecessary and unsettling.

It was unnecessary because the 19th Century option in favour of the Criminal Code and against special laws was based on the undeniable fact that the legislator, in preparing a Code, was constrained, due to external reasons of a social nature, to respect the constitutional principles, something that did not happen, or that happened to a lesser extent, in the case of a special laws. Within the framework of a flexible constitutionalism, this was an especially important argument as the basis to claim an absolutely universal nature of the Code. Nowadays, however, both the Criminal Code as well as the special laws are hierarchically subordinate to the Constitution and submitted thereto, not only due to that hierarchy, but also due to the existence of a jurisdictional control over the constitutionality thereof.

Thus, special laws need not give rise to the caution they historically invoked.

Unsettling because, although it is undeniable that a Code would not deserve that name if it did not contain the majority of the criminal provisions and, of course, the basic principles on which all such provisions are to be based, the fact is that there are matters that it would be difficult to include therein. Now, while a claim to universality is inherent to the idea of a Code, stability and permanence are also goals that befit it, and there are scopes in which, due to the special situation of the rest of the legal order, or the very nature of things, such stability and permanence are impossible. Such is, for example, the case of criminal offences related to exchange controls. In these, the constant changes in the financial conditions and in the legislative context surrounding such criminal offences, makes it advisable, whether one wishes or not, to place the criminal provisions within that setting and to leave them out of the Code. In addition, this is our tradition and there is no lack, in the countries around us, of examples characterised by a similar way of acting.

Thus, in that and other similar cases, it has been decided to refer the criminal regulation of the respective matters to the relevant special laws in their field. The same technique has been applied to the provisions on decriminalisation of abortion. In this case, along with similar reasons to those stated above, one might argue that these are not incriminating laws, but rather laws that regulate cases of non-incrimination. The Constitutional Court of Law has demanded that, in configuring those cases, guarantees be provided that do not seem those of a Criminal Code, but rather those of another kind of regulation.

While preparing the Bill, the parliamentary discussions of 1992, the report by the General Council of the Judiciary, the state of the case law and scientific opinion have been kept very much in mind. It has been carried out based on the deep-rooted idea that the Criminal Code should belong to all and that, thus, all opinions must be heard and the solutions that appear most reasonable adopted, that is, those that everybody should be able to accept.

There is no pretence that this is a perfect work, but rather, simply a useful piece of work. The Government does not have the last word here, but rather only the first. Thus, via this Bill it only expresses its opinion, inviting all political forces and all citizens to collaborate in the task of perfecting it. Only if we all wish to have a better Criminal Code and contribute to achieve this, may an objective whose importance for coexistence and peaceful enjoyment of the rights and liberties the Constitution proclaims, one it is difficult to exaggerate, be attained…«READ MORE»
 


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