ABANDONMENT OF MINORS OR PERSONS WITH DISABILITIES

Art. 229 of the Criminal Code punishes the abandonment of a minor or a person with disabilities by the person in charge of their care, with imprisonment from 1 to 2 years. What elements characterize this crime? The Supreme Court has established this crime requires that the perpetrator (STS no. 347/2018 of July 11):

• Be aware of your ward’s condition and that he or she is in need of certain care.
• Be aware that you are obligated to provide such care because of your position.
• Have knowledge that the ward is in need of such care.
• Have the effective possibility to lend them.
• Be aware that such care was not and could not be provided under the conditions in which the minor or incapacitated person was left.

How can we distinguish this crime from the crime of abandonment of a family under Art. 226 of the Penal Code? The Supreme Court has established that both are crimes that protect the same legal right, but are distinguished by the intensity of the attack against said right, with the crime of art. 229 being applicable to those cases in which the abandonment is definitive, permanent or of greater danger, implying an absolute breach of the duty of care or custody (STS no. 730/2011).

Aggravated modalities

Firstly, if the abandonment is carried out by the parents, guardians or legal guardians, a prison sentence of 18 months to 3 years will be imposed (art. 229.2 of the Penal Code).

Secondly, the penalty is imprisonment for 2 to 4 years if the abandonment has endangered the life, health, physical integrity or sexual freedom of the minor or person with disabilities, unless the facts constitute a more serious crime (art. 229.3 of the Penal Code).

Attenuated mode

Finally, Art. 230 of the Penal Code establishes a lesser penalty for cases of temporary abandonment, in which case the penalty to be imposed is the lower penalty in degree.