Article 28 Spanish Criminal Code: Principals, Inducers and Necessary Cooperators

Article 28 of the Spanish Criminal Code identifies who is a principal: those who carry out the act alone, jointly, or through another used as an instrument. It then treats as principals two further categories, those who directly induce another to commit the offence and those who cooperate in its execution by an act without which it would not have been carried out. The distinction between the necessary cooperator of this article and the accomplice of article 29 is worth one degree of penalty, and it is one of the most productive arguments available where several persons are accused.

Wording of Article 28 of the Spanish Criminal Code

Elements of the offence

1. Execution of the act, alone, jointly with others, or through a person used as an instrument who does not act freely or knowingly.
2. For joint principals, a common plan and a contribution to the execution itself, not merely to its preparation.
3. For inducement, a direct influence on a specific person to commit a specific offence. General encouragement or the creation of a favourable climate is not inducement.
4. For necessary cooperation, an act without which the offence would not have been carried out, assessed on the concrete facts and not in the abstract.

Defence strategy

Reclassification as an accomplice. This is the central argument. The necessary cooperator provides something without which the offence would not have happened; the accomplice provides an aid that facilitated it. Driving a vehicle that others could have driven, acting as a lookout where the offence would have proceeded anyway, lending a telephone or a bank account that was replaceable, and being present without intervening are ordinarily complicity. The submission is made on the concrete facts, and it reduces the penalty by one degree.

Contribution to preparation rather than execution. Joint principalship requires a contribution to the execution. A person whose involvement ended before the offence began, who supplied information used later, or who was told of the plan and did nothing is not a joint principal. The defence establishes the chronology of each accused’s involvement, since indictments habitually attribute the whole of the conduct to all the accused without individualisation.

Inducement and the limits of influence. Inducement requires a direct determination of another’s will towards a specific offence. Advice, a request made without insistence, an expression of desire and a payment for a lawful service that the recipient turned to unlawful ends do not amount to it. Where the person induced had already decided to act, the inducement is ineffective and the accused is at most an accomplice.

The instrument and the absence of dominion. Commission through another requires that the other be used as an instrument, which presupposes dominion over the act. Where the person who carried out the offence acted freely and with knowledge, the accused is not a principal by that route but at most an inducer or a cooperator. This distinction matters in cases involving employees, family members and intermediaries, and it is established by showing what the executant knew and decided.

• Article 29: accomplices
• Article 570 bis: criminal organisation
• Spanish Criminal Code by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.