THE NOVELTIES INTRODUCED BY LAW 14/2022 IN CRIMINAL LEGISLATION

The purpose of Organic Law 14/2022, which came into force on January 12, 2023, is to adapt Spanish criminal legislation to the requirements of the Directives issued by the European Union, as well as to reform certain offenses. Below, we will analyze the most relevant novelties introduced by this law.

Crime of concealment of corpse

In the first place, the reform introduces, in art. 173.1 of the Penal Code, a new crime, consisting of repeatedly concealing the whereabouts of the corpse of a person from his relatives and friends, a crime punishable with imprisonment from 6 months to 3 years.

Expansion of the criminal conduct of fraud and forgery

On this point, the reform aims to adapt Spanish legislation to the European Union Directive 2019/713 on anti-fraud and non-cash means of payment. As a result of the reform, in addition to the fraudulent use of credit cards, debit cards and traveler’s checks (conduct that was already punishable before the reform), the fraudulent use of any other material or immaterial payment instrument other than cash constitutes a fraud offense. Criminal protection is thus extended to the use of other means of payment such as virtual currencies, crypto-assets and electronic wallets, among others.

Likewise, the crime of counterfeiting credit cards, debit cards and traveler’s checks also includes the counterfeiting of non-cash payment instruments (art. 399 bis of the Penal Code).

New crime against workers’ rights

The reform introduces a new crime against workers’ rights, which punishes the imposition of illegal conditions on workers by hiring them under formulas other than an employment contract, as well as the maintenance of such workers under the conditions exposed in breach of an administrative requirement or sanction.

Reform of the smuggling offense

In order to combat organizations that conspire to illegally market defense or dual-use material (material that can be destined for both civilian and military or nuclear purposes), conspiracy and proposition to smuggle defense material or dual-use products and technologies is now punishable.

Exemption from criminal liability for officers and employees

Law 14/2022 rewards the collaboration of company directors and employees in the investigation of certain crimes. Specifically, it allows exempting from criminal liability the directors, administrators or employees of any company who commit a crime of altering prices in public tenders and auctions (art. 262 of the Criminal Code), of detraction of products and raw materials from the market (art. 281 of the Criminal Code), or of altering prices in the market (art. 284 of the Criminal Code), provided that the following requirements are met:

1. That these subjects stop participating in the crime.
2. That the company or individual submits a request for exemption from payment of the fine to the CNMV.
3. That they actively collaborate with the judge or the Public Prosecutor’s Office, providing useful and specific evidence to ensure proof of the crime and identify other perpetrators of the crime.

Reform of the insider trading offense

As a result of the reform, the criminal modality of art. 285.5 of the Penal Code, which punishes the person who, without having access to privileged information, obtains it in any way and uses it knowing that it is privileged information, is changed to be punished with the same penalty as the rest of the modalities of this crime.The penalty is a prison sentence of 6 months to 6 years, a fine of 2 to 5 years or three times the benefit obtained or favored or the damages avoided, and special disqualification from the exercise of the profession or activity for 2 to 5 years, while previously it was punished with the lesser penalty in degree.

Suppression of the crime of sedition

The reform eliminates the crime of sedition, the crime for which the leaders of the Procés were convicted, which was previously regulated in articles 544 to 549 of the Penal Code. This crime punished people who rose up publicly and tumultuously to prevent, by force or outside the legal channels, the application of laws or administrative or judicial resolutions or any authority or official in the legitimate exercise of their functions.

Reform of the embezzlement offense

On the other hand, in relation to the crime of embezzlement, since 2015 it consisted of the commission of a crime of disloyal administration or misappropriation on public assets by an authority or official, conduct punishable by imprisonment of 2 to 6 years and special disqualification for public office or employment and for the exercise of the right to passive suffrage for a period of 6 to 10 years.

For its part, the new law distinguishes between different types of embezzlement offenses:

1. Appropriatory embezzlement, which occurs when an authority or public official appropriates public funds or allows another person to appropriate them, for profit, and is punishable by a prison sentence of 2 to 6 years and special disqualification from public employment and from exercising the right to passive suffrage for 6 to 10 years (art. 432 of the Penal Code).

• Embezzlement of use, which consists of the temporary use for private purposes, by a public official or authority, of public property, without the intention of appropriation. This behavior is punishable by a prison sentence of 6 months to 3 years and suspension from public employment or office for 1 to 4 years (art. 432 bis of the Penal Code).

• Budgetary embezzlement, which is committed by the authority or public official who gives the public assets he/she administers a public application other than the intended one. In this case, the penalty to be imposed is imprisonment for 1 to 4 years and special disqualification from public employment or office for 2 to 6 years (art. 433 of the Penal Code).

New crime of illicit enrichment of public officials

Article 438 bis of the Criminal Code introduces a new crime, which punishes the authority who, during the performance of his office and up to 5 years after leaving it, has obtained an increase in assets or a cancellation of obligations or debts of more than 250,000 euros with respect to his accredited income, provided that he openly refuses to comply with the requirements of the bodies that must verify its justification. This offense carries a prison sentence of 6 months to 3 years, a fine of three times the amount of the benefit obtained, and special disqualification from public employment or office and from the exercise of the right to passive suffrage for a period of 2 to 7 years.

Modification of the offenses of public disorder.

The crimes of public disorder include, after the reform, certain behaviors that previously constituted the crime of sedition, now punishable with lesser penalties.

Prior to the reform, the basic crime of public disorder punished the execution of acts of violence on persons or things or the threat to carry them out, while, at present, it punishes the execution of acts of violence or intimidation on persons or things, obstructing public roads, generating danger to the life or health of persons, or invading facilities seriously altering the operation of essential services. This amendment has been highly criticized by certain social sectors, considering that it is criminalizing the mere protest.

On the other hand, an aggravated form of public disorder is introduced, which carries a prison sentence of 3 to 5 years, when such disorder is committed by a crowd whose number, organization and purpose are suitable to seriously affect public order.