Concurrence of Offences in Spain (Arts. 73 to 77 CP): How Sentences Add Up and Where They Stop

When a bill of indictment contains more than one offence, the question that decides the outcome is not only how many years the prosecutor asks for on each count, but how those counts relate to one another. The Spanish Criminal Code offers four different answers — conflict of laws, real concurrence, ideal concurrence and medial concurrence — and each produces a very different final figure from the same facts. Understanding that architecture is often worth more than disputing the evidence on one of the counts.

You are accused of several offences at once: what concurrence decides

The first question is whether there really are several offences or a single one described in several ways. If the facts can be classified under two or more provisions but only one of them should apply, this is a conflict of criminal laws and the penalty is that of the single applicable provision. If there is a genuine plurality of offences, the rules on concurrence of offences come into play, and one must then distinguish whether they arise from several acts (real concurrence) or from a single act (ideal concurrence), or whether one was a necessary means of committing the other (medial concurrence).

The order of analysis matters, because the Code itself imposes it: Art. 8 CP applies to facts not covered by Articles 73 to 77, and Art. 77 CP displaces Arts. 75 and 76 CP. Skipping a step very easily produces miscalculated sentences.

Conflict of criminal laws (Art. 8 CP): one offence, several provisions

Art. 8 CP resolves cases where the same conduct appears to fit several offence definitions but punishing it under all of them would sanction the same thing twice. It sets out four rules, applied in order:

• Speciality. The special provision applies in preference to the general one.
• Subsidiarity. The subsidiary provision applies only in the absence of the principal one, whether that subsidiarity is stated expressly or is tacitly inferable.
• Absorption. The broader or more complex provision absorbs those punishing the offences consumed within it.
• Alternativity. Failing the above criteria, the more serious provision excludes those punishing the conduct with a lesser penalty.

The practical difference from concurrence of offences is radical: in a conflict of laws no penalties are added and no aggravation rules apply, because there is only one offence. Arguing that one offence is already consumed within another is therefore one of the defence lines with the greatest arithmetical return.

Real concurrence (Arts. 73 and 75 CP): material accumulation

Art. 73 CP contains the starting rule, and it is the harshest: a person responsible for two or more offences receives all the penalties corresponding to the various offences, to be served simultaneously where the nature and effects of the penalties allow it. This is known as material accumulation.

Where the penalties cannot be served at the same time — the normal position with several custodial sentences — Art. 75 CP requires them to be served consecutively in order of their respective seriousness. Without any corrective, that system would lead to arithmetically unlimited sentences, and so the Code immediately introduces a cap.

The cap in Art. 76 CP: three times the most serious penalty

Art. 76.1 CP provides that the maximum term actually to be served may not exceed three times the length of the most serious of the penalties imposed, declaring the remainder extinguished once the penalties already imposed cover that maximum, which in turn may not exceed twenty years. Above that general rule, the provision sets higher exceptional caps: twenty-five years where one of the offences carries a statutory prison term of up to twenty years; thirty years where one carries a term above twenty years; and forty years where at least two carry terms above twenty years. Where one of the offences carries a reviewable permanent custodial sentence, the article refers to Arts. 92 and 78 bis CP.

In figures, to see when the cap bites and when it does not:

• Three sentences of three, two and one year. They add up to six years. Three times the most serious is nine. Since six is below both nine and the general maximum, all six years are served: the cap does not operate.
• Six sentences of two years each. They add up to twelve years. Three times the most serious is six. Six years are served and the remainder is declared extinguished.
• Sentences adding up to thirty-four years, the most serious being twelve. Three times that would be thirty-six, but the general cap prevents exceeding twenty years, which becomes the maximum term actually served.

Two important points. First, the limitation applies even where the penalties were imposed in separate proceedings, provided the offences were committed before the date on which those first tried among the sentences to be merged were tried (Art. 76.2 CP). This is the basis of sentence merger, processed under Art. 988 LECrim.

Second, where the effect of that cap is that the term to be served is less than half the total of the penalties imposed, the court may order that prison benefits, release permits, classification in the open regime and the calculation of time for parole be referred to the totality of the penalties, under Art. 78 CP.

Ideal concurrence (Arts. 77.1 and 77.2 CP): one act, two offences

Art. 77.1 CP rules out Arts. 75 and 76 CP where a single act constitutes two or more offences. For that situation, Art. 77.2 CP requires the penalty laid down for the most serious offence to be applied in its upper half, subject to a cap: it may not exceed what the penalties would add up to if the offences were punished separately. If the calculation exceeds that limit, the offences are punished separately.

An example in figures. A single act constitutes two offences: the more serious one has a statutory range of one to three years and the other, six months to one year. The upper half of the more serious range runs from two to three years.

• If, punished separately, the actual sentences would be two years and one year, they would add up to three years. The ideal concurrence rule allows a figure between two and three years, so it operates and works in the defendant's favour.
• If, punished separately, the actual sentences would be one year and six months — a total of one year and six months — the upper half would already start above that cap. The offences are then punished separately and the total is one year and six months.

That second scenario explains a counter-intuitive point: the ideal concurrence rule does not always help, which is why both alternatives must be calculated before settling the procedural position.

Medial concurrence (Arts. 77.1 and 77.3 CP): one offence as a means to another

The second situation covered by Art. 77.1 CP is that of an offence that is a necessary means of committing another. Necessity is assessed on the specific facts and not in the abstract: it is not enough that the first offence was convenient, the particular plan must have been incapable of being carried out otherwise.

The sentencing rule was changed and should not be cited from memory. Art. 77.3 CP requires a penalty higher than the one that would have corresponded, on the specific facts, to the most serious offence, without exceeding the sum of the actual penalties that would have been imposed separately for each offence. Within those limits, the sentence is individualised under the criteria of Art. 66 CP, and in no case may it exceed the maximum term of Art. 76 CP.

In figures: if the most serious offence would attract one year and six months on the specific facts, and the instrumental offence one year, the medial concurrence penalty must be higher than one year and six months and may not exceed two years and six months. The court moves within that bracket and must give reasons for the figure.

The relationship with the continuing offence (Art. 74 CP)

Art. 74 CP is an express exception to Art. 73 CP: where a plurality of acts follows a preconceived plan or exploits the same opportunity and infringes the same criminal provision, or provisions of equal or similar nature, it is punished as a single continuing offence with the penalty for the most serious offence in its upper half, which may extend into the lower half of the next higher degree.

The relationship between the two figures is one of successive steps. First a conflict of laws is ruled out; then it is checked whether the series of homogeneous acts fits the continuing offence; and only what falls outside that unification is subject to the rules in Arts. 73 to 77 CP. Indictments often mix all three levels in the same document, and that confusion can be challenged.

There is also an effect that tends to be forgotten: in cases of concurrence of offences or of connected offences, the limitation period is the one corresponding to the most serious offence (Art. 131.4 CP). In practice, a less serious offence that on its own would already be time-barred may remain alive through its connection with a more serious one.

What the defence looks at

• Unity of act. Establishing whether there was one act or several is the first fork in the road, and it decides between Art. 77 CP and Arts. 73 and 76 CP.
• Absorption. Checking whether one offence is already punished within a broader one: Art. 8.3 CP is the rule that removes the most counts and the one least often invoked.
• The necessity of the means. In medial concurrence, requiring the prosecution to explain why the specific plan could not have been carried out in any other way.
• The alternative calculation. Always running both figures under Art. 77.2 CP: the upper half of the most serious offence and the sum of the separate penalties.
• The cap on the term served. Checking three times the most serious penalty and the applicable maximum, and applying for merger where there are sentences from separate proceedings.
• Personal circumstances. Mitigating and aggravating factors operate on each offence before the concurrence rules are applied, not afterwards.

If several offences are being tried together in your case, the concurrence classification is argued in the defence submissions and in the closing speech, with the figures worked out. You can contact us at +34 91 078 65 74.