Article 74 Spanish Criminal Code: Continuing Offence

Article 74 of the Spanish Criminal Code aggregates a plurality of acts into a single continuing offence where they are carried out under a preconceived plan or taking advantage of an identical opportunity, offend the same or different victims and infringe the same or a similar provision. The consequence is not leniency: the penalty for the most serious infringement is imposed in its upper half and may reach the lower half of the next degree higher. In offences against property the penalty is fixed by reference to the total loss, and the court may raise it by one or two degrees where the act is of notorious gravity.

Wording of Article 74 of the Spanish Criminal Code

Elements of the offence

1. A plurality of acts or omissions, each capable in itself of constituting an infringement.
2. A preconceived plan, or the exploitation of an identical opportunity, which is the unifying element and must be established rather than assumed from repetition.
3. Infringement of the same provision or of provisions of the same or similar nature.
4. That the interests affected are not eminently personal, subject to the exception for honour and sexual freedom in respect of the same victim.

Defence strategy

Comparing the continuing offence with separate offences. Aggregation is not always adverse to the accused, and it is not always favourable. Where several acts each fall below a criminal threshold, aggregation creates an offence that would not otherwise exist; where each act is serious, aggregation may produce a lower total than the accumulation of separate sentences under article 76. The defence calculates both outcomes before taking a position, because the choice of framework is frequently the most consequential decision in the case.

Absence of a preconceived plan or identical opportunity. Repetition is not a plan. Where the acts are separated by long intervals, involve different methods and different victims, and respond to distinct occasions, the unifying element is missing and the acts must be judged separately, each subject to its own limitation period. This matters because the limitation period of a continuing offence runs from the last act, so denying continuity may bar the earlier conduct altogether.

Quantification of the total loss. In property offences the penalty depends on the total, so the defence examines each item included in it: sums never received, amounts already repaid, duplications between claimants and figures resting on the complainant’s estimate. Reducing the total below a statutory threshold changes the bracket even though the number of acts is unchanged.

Eminently personal interests. The third paragraph excludes offences against eminently personal interests, with a qualified exception. Continuity is therefore unavailable for repeated assaults causing bodily harm, and its application to sexual offences against the same victim requires a reasoned assessment of the nature of the act and of the provision. Where continuity is excluded, the acts are tried separately, which restores the ordinary rules on limitation and on the maximum aggregate sentence.

• Article 250: aggravated fraud
• Article 234: theft
• 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.