Article 130 Spanish Criminal Code: Extinction of criminal liability

Article 130 lists the grounds which extinguish criminal liability: death, service of the sentence, definitive remission, amnesty or pardon, the pardon of the person offended in the cases provided for, and limitation of the offence or of the penalty. Paragraph 2 governs the transfer of liability of legal persons.

Wording of Article 130 of the Spanish Criminal Code

Elements of the offence

1. One of the seven grounds listed in paragraph 1, which are exhaustive.
2. In the case of the pardon of the person offended, a minor offence prosecutable at the instance of the aggrieved person, or express statutory provision, together with an express grant before judgment and after hearing the person offended.
3. The exclusion of that ground where the offence was committed against a minor or a person with a disability in need of special protection and affects eminently personal legal interests.
4. In the case of paragraph 2, a corporate operation which does not amount to a concealed or merely apparent dissolution, which is deemed to exist where the economic activity continues with substantial identity of clients, suppliers and employees.

Defence strategy

Calculation of the limitation period. The limitation of the offence requires the identification of the penalty frame in the abstract, of the moment at which the period begins to run and of the acts which genuinely interrupt it. A merely nominal charge, or a period of inactivity of the file, are the points upon which the extinction is habitually obtained.

Interruption of the period and proceedings directed against a person. Article 132 requires a reasoned decision attributing to a determined person the participation in an act which may constitute an offence. Generic complaints and proceedings against persons unknown do not interrupt the period, which is a frequent ground of challenge.

Pardon of the person offended. Where the offence is a minor one prosecutable at the instance of the aggrieved person, the pardon extinguishes liability provided that it is granted expressly before judgment. The court is under an obligation to hear the person offended, and the omission of that hearing is a defect capable of being raised on appeal.

Corporate succession and concealed dissolution. Paragraph 2 transfers the liability of the legal person to the resulting entities and permits the court to moderate that transfer according to the proportion which the originally liable entity bears to it. Documenting the actual discontinuity of clients, suppliers and employees is what prevents the finding of a concealed dissolution.

• Limitation of criminal liability in Spain
• Corporate criminal liability in Spain
• Enforcement of criminal sentences in Spain
• Criminal compliance in Spain

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.