Continuing Offence (Art. 74 CP): When Several Acts Are Punished as One

When a bill of indictment describes twelve transfers, fifteen card charges or a series of payments repeated over two years, the intuitive reaction is to count offences. Art. 74 CP does exactly the opposite: under certain conditions it groups that plurality of acts into a single offence, the continuing offence (delito continuado). It is not a technical label without consequences. It decides whether the sentence is calculated on one act or on twenty, whether a series of modest amounts turns into an aggravated category, and from when the limitation period starts to run.

You are accused of several similar acts: what a continuing offence is

A continuing offence is a legal construction that treats as one offence what are naturally several. The reason is twofold: to avoid the disproportionate result of simply adding up dozens of penalties, and to recognise that, in certain cases, the repetition responds to a single decision or a single opportunity, not to independent criminal decisions.

Art. 74.1 CP frames it as an exception to the general rule of Art. 73 CP, which orders that a person responsible for two or more offences be given all the penalties corresponding to the various offences. When continuity is found, that calculation disappears and is replaced by a single one.

The requirements of Art. 74.1 CP

The provision requires that a person who, in carrying out a preconceived plan or taking advantage of the same opportunity, performs a plurality of acts or omissions that affect one or several persons and infringe the same criminal provision or provisions of an equal or similar nature, be punished as the perpetrator of a continuing offence. Four elements follow from this:

• Plurality of acts or omissions. Acts separable in time, each with its own standing. If there is a single act, there is nothing to group.
• A preconceived plan or taking advantage of the same opportunity. These are alternatives, not cumulative requirements. The second is the one most often applied: the offender repeats the conduct because the same situation — the same job, the same access, the same trust — puts it within reach again.
• Regulatory homogeneity. The same criminal provision, or provisions of an equal or similar nature. Literal identity of the article is not required, but the offences must protect the same legal interest in an equivalent way.
• One or several victims. The law expressly allows a plurality of victims, with the exception in subsection 3.

How the sentence is calculated

The rule in Art. 74.1 CP is that the penalty set for the most serious offence in the series is imposed, and it is imposed in its upper half, with the court able to go as far as the lower half of the next degree up. In other words: continuity does not come free. It is paid for with a higher minimum penalty than an isolated act would carry.

By contrast, the alternative — the absence of continuity — is the real concurrence of offences under Art. 73 CP, with all the penalties added together and then subject to the enforcement limits of Art. 76 CP. In long series, continuity usually produces a lower result. In short series of two or three minor acts, not always.

Offences against property: the total harm caused

Art. 74.2 CP contains the rule with the most practical consequences: in offences against property the penalty is imposed taking into account the total harm caused. A series of small charges, withdrawals or invoices stops being assessed one by one and is assessed as a sum.

The effect is clear in fraud: Art. 250.1.5 CP makes the offence aggravated when the value defrauded exceeds €50,000, and that threshold is reached by adding together amounts that no single transaction reached on its own. The same applies to aggravated fraud based on other circumstances of amount.

The same subsection adds a reinforced aggravation: the court will impose, giving reasons, the penalty one or two degrees higher if the act is of notorious seriousness and has harmed a large number of people. These are two cumulative requirements, not alternatives, and express reasoning for them is required in the judgment.

Eminently personal rights: the exception in Art. 74.3 CP

Subsection 3 excludes from continuity offences against eminently personal rights — life, physical integrity, freedom — with two express exceptions: offences against honour and against sexual freedom and integrity that affect the same victim. In those cases the provision neither imposes continuity nor bars it: it orders that regard be had to the nature of the act and of the provision infringed in order to apply it or not.

The practical consequence is that several assaults on different people are not grouped together: they are tried as independent offences, with accumulation under Art. 73 CP. And that in sexual offences against the same victim, continuity is possible, but arguable case by case.

What a continuing offence is not

• Conflict of provisions (Art. 8 CP). Here there is a single act to which two provisions apply and only one is applied, following the rules of speciality, subsidiarity, absorption and alternativity. There is no plurality of acts to group.
• Ideal and instrumental concurrence of offences (Art. 77 CP). A single act that constitutes two offences, or an offence that is a necessary means of committing another. There is no repetition either: there is overlap.
• Continuing (permanent) offence. The unlawful situation continues over time without the act being repeated. Art. 132.1 CP treats them separately precisely because they are different figures.
• Habitual offence. The offence itself requires repetition to exist as a matter of definition; habituality is an element of the offence, not a subsequent grouping rule.

Limitation period: the clock starts with the last act

Art. 132.1 CP establishes that in cases of a continuing offence the limitation periods run from the day the last offence was committed. This is one of the reasons the classification matters so much: acts from years ago, time-barred if looked at individually, remain live if they form part of a series that reaches recent dates.

The reverse works the same way. If the defence manages to break the continuity — showing that between the first acts and the last there is neither a plan nor the same opportunity — the oldest ones may fall outside through limitation.

What the defence looks at

• Whether the prosecution describes the series or simply assumes it. Continuity requires a narrative of facts that identifies each act. A submission that speaks of "multiple transactions" without specifying them is vulnerable.
• The link between the acts. Changes of context, long interruptions, different methods or different beneficiaries weaken both the preconceived plan and the identity of opportunity.
• The sum that supports the aggravated category. In offences against property, each disputed item that is knocked out reduces the total harm, and with it the jump in category can fall too.
• The reasoning for the aggravation under Art. 74.2 CP. The penalty one or two degrees higher requires notorious seriousness and harm to a large number of people, reasoned in the judgment.
• The comparative calculation. Work out the figures with and without continuity before setting the procedural position, including any possible plea agreement.
• The mitigating circumstances applicable to the whole. Reparation of harm and undue delay operate on the sentence for the continuing offence, not on each individual act.

If you are under investigation for a series of acts that the prosecution presents as a single continuing offence, the time to challenge the classification is before the defence submissions are filed, not in the closing statement. You can contact us at +34 91 078 65 74.