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Correspondents' Reports

JURIST's Spain Correspondent is Dr. Fernando Martin Diz, Assistant Professor of Procedural Law at the Faculty of Law, University of Salamanca. This special report is written by his colleague Dr. Mara Teresa Fern疣dez S疣chez, Doctor of Law, University of Salamanca.
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[Salamanca; Special to JURIST] Terrorism is a critical problem that the Spanish Goverment and Spanish society must address. But how? The penal law provides one possible instrument, and in fact the Spanish Legislature has included penalties for crimes of terrorism in the present Spanish Penal Code, which itself will be reformed in the future in answer to increased terrorism.

Crimes of terrorism are outlined in the second section of the Spanish Penal Code, (Chapter V, Title XII, Book II). Title XII explicitly refers to crimes against the 菟ublic order, however a clear definition of this concept of 菟ublic order is not included in the Code itself. 撤ublic order is generally understood as the normal working of public and private institutions, and thought to be about maintaining the internal peace and free development of the fundamental rights and freedoms of citizens. In fact, 菟ublic order consists of maintaining the conditions essential for social coexistence in a peaceful environment, while remaining within the democratic framework established by the Spanish Constitution.

Articles 571 of the Penal Code defines the objective elements of the crimes of terrorism, including arson and destruction. These actions appear separately in another part of the Penal Code; they are considered as crimes of terrorism only when other elements are present. Those additional elements are that the author of the crime must belong to, act in the name of, or collaborate with armed bands, organizations or groups whose goal is to disturb the constitutional order or the public peace.

Art. 572 of the Spanish Penal Code penalizes any individual who acts against the life, health or freedom of any person when the author of the crime is linked with an armed or terrorist organization. This requirement is essential as well in the regulation accompanying art. 574 - a residue regulation that penalizes any crime that is not described expressly in the Penal Code but which has the same conditions and the same goals as the rest of the crimes of terrorism.

It is important to realize that when speaking about belonging to, acting in the name of, or collaborating with an armed or terrorist group it is understood that a direct relationship has to exist between the author of the crime and the armed group or terrorist organization. The Spanish Supreme Court recognizes an 殿rmed group as an association concentrating on armed action from which permanent links are born. Hierarchy and discipline are important to armed groups, whose actions are usually numerous and unpredictible, and who attack with suitable instruments of violence provided by their criminal organization (STS, 2nd hall, 25-1 and 27-5-1988).

When the criminal act causes the death of a person, the sanctions outlined in the Penal Code for crimes of terrorism can reach a maximum of 30 years of prison. For terroristic acts consisting of arson and destruction, the sanctions range from 15 to 20 years in prison. When a person is seriously injured, the sanction is also 15 to 20 years. When an injury is minor, or the actor who belongs to the armed group threatens, coerces or illegally detains another person, the sanction ranges from 10 to 15 years of prison. These prison terms can be even longer if the terroristic actions are directed against government officials, including: The local, regional or national Government; The regional or national Parliament; The Consejo General del Poder Judicial or the Supreme Court; and The Army, State Security Forces, and regional and local police.

The Spanish legislature also penalizes other sorts of terrorist actions, as illustrated in Penal Code art. 573. A group may be penalized if they maintain an arsenal of weapons, munitions, and substances or devices which are explosive, inflammable, incendiary or asphyxiating (including components of any of these weapons). Along with using or placing these elements, actors are also penalized for manufacturing, dealing, transporting, or providing of any these substances, instruments or devices. The sanction for any of these actions is a prison term extending from 6 to 10 years. Art. 573 also provides that the actors must belong to an armed group or terrorist organization.

The legislature has additionally realized that a terrorist group cannot act without a good infrastructure and, above all, without substantial economic resources. Therefore "crimes of terrorism" include attempts to steal property with the goal of obtaining funds to aid terrorist groups. This crime is described in art. 575 of the Penal Code, in which the legislature describes the sanctions for crimes against property. Sanctions for crimes against property are increased when the crime is classified as a crime of terrorism.

The legislature has also anticipated the 田rime of collaborating with an armed group (art. 576 Penal Code). A 田rime of collaboration with an armed group generally means every act of surveillance over persons, goods or installations. Also included are: To construct, arrange, use or cease logging or depots; To hide or transport persons who have a link with the armed group or terrorist organization; To organise or assist in training; and, in general, any other method of collaboration, help or cooperation with these groups and with their activities. The crime of collaboration with an armed group carries a penalty of 5 to 10 years in prison and includes fines. This sanction can be increased when the collaboration risks the life, health, freedom or property of the affected persons, and should their actions result in an actual injury, the law classifies the persons who collaborate as authors of the crime.

Article 577 of the Penal Code, concerning acts designed to disturb the constitutional order and the public peace, is somewhat peculiar. The perpetrator of such acts does not necessarily have to act as a member of an armed group or a terrorist organization. In fact, if one person commits a crime (such as homicide, personal injury, destruction, arson, illegal detention, threats, coercion, or maintaining an arsenal) but doesn稚 belong to an armed or terrorist group, he or she will be punished not as a terrorist but with the standard sanction for these crimes. However, the higher penalty will be increased by one-half because of the goal of the perpetrator, bringing it closer to the sanction imposed for crimes of terrorism.

The Spanish Penal Code penalizes preparatory acts - such as provocation, conspiracy and proposition - only in exceptional cases. These exceptional cases may be found in art. 578, where the preparatory acts are sanctioned when the perpetrator prepares to commit crimes of terrorism as defined in the Spanish Penal Code. The sanction is minor compared to the rest of the sanctions for a crime of terrorism. There is one special preparatory act: the apology. It consists of either directly addressing a large group of persons, or by using a subversive medium that includes ideas or doctrines that exalt the crime and its author. It has proven very difficult to apply this law in an actual case.

In art. 579 of the Spanish Penal Code, the legislature gives Judges and Courts the discretion to reduce the sanction for any of the crimes of terrorism. This exceptional treatment is conditioned upon the terrorist voluntarily giving up his criminal activities and presenting himself to the authorities to confess his crimes. Furthermore, he has to collaborate with the authorities to impede new crime and to assist them in obtaining evidence used to capture other criminals, as well as to hinder the development of armed or terrorist groups with whom he was affiliated.

Finally, as a response to the aggravating history of backsliding in enforcement of the previous Spanish Penal Code, the legislature has taken preventative measures: art. 580 of the Penal Code provides that the rulings and convictions handed down by a foreign Judge or Court in relation to crimes of terrorism will be considered equal to the conviction dictated by a Spanish Judge or Court and duly enforced.

Dr. Mara Teresa Fern疣dez S疣chez
Faculdad de Derecho, Universidad de Salamanca
Salamanca, SPAIN

February 15, 2001

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