Prescription of Crimes

January 16, 2020 Admin-MBDPLawFirm 0 Comments

The vast majority of crimes cease to be prosecuted once a certain amount of time has elapsed since their commission. This is what is legally known as a statute of limitations. It is a topic that is usually current and that we want to discuss in depth here.

Definition of prescription of crimes

The prescription supposes the extinction of the criminal responsibility that a subject could have as a consequence of having carried out an action that, according to the provisions of the Penal Code, was classified as criminal.

Many people do not understand why a crime can prescribe after a specified amount of time. However, this is directly related to inescapable rights and principles within the Spanish Constitution.

First of all, we are all subject to the principle of legal certainty contained in article 9.3 of the Spanish Constitution. But, in addition, it also includes this legal text that we must have a judicial process without undue delay in time.

When do crimes prescribe?

To understand when crimes are prescribed, we must bear in mind that the term begins to count from the moment the criminal action is committed. However, it is known to all that there are punishable infractions that develop permanently or habitually. In that case, the term will begin to count from the date of the last punishable act, from the end of the illegal situation or from the cessation of the conduit that gave rise to the situation.

The prescription of minor crimes

Minor crimes are defined as all criminal actions whose criminal responsibility is a maximum of 5 years in prison. That is the time that will have to wait from its commission to its prescription. This is so except in the case of offenses of libel and slander, which prescribe in just 1 year.

The prescription of serious crimes

In this case, the current legislation is much broader than with regard to the prescription of minor crimes and specifies that:

  • They will prescribe after 10 years all those crimes whose maximum penalties of prison and / or disqualification are between 5 and 10 years.
  • They will prescribe at the age of 15 all those crimes whose maximum penalties of prison and / or disqualification are between 10 and 15 years.
  • They will prescribe at 20 years all those crimes whose maximum penalties of prison and / or disqualification are between 15 and 20 years.

Are there crimes that do not prescribe?

Yes. There are crimes that have a special consideration within the Spanish legal organization chart and, therefore, do not prescribe under any circumstances. Specifically, these are those of:
Genocide and humanity.
Crimes committed against property and people in a situation of protection during armed conflicts.
Terrorism, provided that the punishable act entailed the death of at least one person.

Other special cases

It may happen that the crime in question was committed against a person who was a minor. In this case, and with special reference to the crimes of injury, non-consensual abortion, torture, trafficking in human beings and against privacy, sexual freedom, the right to self-image, moral integrity and freedom in general, the The statute of limitations does not have to start at the time the punishable action was committed or when it ceased to be carried out if it was a continuing act.

In this type of situation, the legislation establishes that the statute of limitations must start from the day the victim reaches the age of majority. However, if that person died as a result of that crime or for any other reason, it will start from the date the death occurred.

What are the reasons for the interruption of the limitation period?

The legislation is very clear in this regard. Specifically, for the statute of limitations for criminal action to be temporarily or permanently interrupted, it is a sine qua non requirement that a process directed against the person who committed it begin.

But how can this directed process that interrupts the prescription period begin? There are two ways:

  • Presentation of a complaint or complaint to a competent judicial body: it must be attributed to a subject participation in an act constituting a crime. In this case, the interruption will be temporary in the first instance (6 months). This period will begin to run from the date on which said complaint or complaint was filed. For it to continue its course, it must not be dismissed and lead to the start of the oral phase.
  • Dictated motivated judicial resolution: it must determine that there are indications that a subject has committed a crime. It can be done both at the time the cause is initiated or later.

Now it is time to ask another question: what happens if the 6 months have elapsed since the filing of the complaint without it being accepted for processing or if an acquittal is passed for the subject even if he has actually committed the crime? Well, the limitation period will count again. In fact, in the case of the filing of the complaint, retroactivity will be applied and they will continue to compute those 6 months with a view to the prescription of the punishable action.

Does the criminal record prescribe?

No, but this does not mean that they cannot be canceled. The reason we give a negative answer is purely semantic. A criminal record cannot prescribe since, for them to exist, it is necessary that the person who owns them be convicted of the commission of a crime. However, for a crime to prescribe, it must not have even been tried during the period from the time it was committed to the past, the maximum sentence established in the Penal Code.

Now that you have an answer to the question about whether the criminal record prescribes, we can tell you that, in order for them to be canceled and disappear from the judicial record, it is necessary for the subject to go without committing a certain amount of time since the sentence has been served imposed:

  • Minor crimes: 6 months.
  • Crimes with penalties of up to 12 months: 2 years.
  • Crimes with penalties of up to 3 years that are not derived from recklessness: 3 years.
  • Offenses with less serious penalties equal to or greater than 3 years: 5 years.
  • Serious crimes: 10 years

In the event that the subject re-offends during the period necessary for the cancellation of his criminal record, the account will be interrupted and resumed again when the corresponding judicial sentence exists.

Conclusions on the prescription of punishable actions

In short, the vast majority of crimes covered by the Penal Code in force in Spain can prescribe. In this sense, the amount of time corresponding to the highest penalty that could be imposed on the subject in case of being judged is set. If that time elapses without a judicial proceeding directed against him, he will be free of any responsibility for the fact.

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