Indirect Perpetration (Art. 28 CP): Liability for an Act Carried Out by Another

In many proceedings the real dispute is not whether the act happened, but who is liable for it. Art. 28 CP answers that question with a very short formula containing three distinct figures: the person who carries out the act alone, those who carry it out jointly, and the person who carries it out through another used as an instrument. The last of these is indirect perpetration, and it decides whole cases: someone who was never at the scene may be liable as a principal, while the person who physically acted may not be liable at all.

You are accused of an act carried out by someone else: what indirect perpetration is

Art. 27 CP closes the circle of those criminally liable: only principals and accomplices are. And Art. 28 CP defines the first group with a sentence worth reading slowly: principals are those who carry out the act alone, jointly, or through another person of whom they make use as an instrument.

That third form is indirect perpetration. It does not punish helping with someone else's offence; it punishes committing your own offence through an intermediary. What matters is not physical distance from the result but control: the indirect principal steers the course of events because he steers the will of the person acting. The executor supplies the body; the decision and the direction of the act lie elsewhere.

It should be separated from the other two forms of principal liability. In direct perpetration the person controls his own conduct. In joint perpetration control is functional and shared: each participant takes on an essential part of a common plan and none could complete it alone. In indirect perpetration there is no division of roles between equals but a difference in level: one decides and another acts without truly deciding.

The non-liable instrument: where the executor's liability breaks down

Classic indirect perpetration assumes that the person who physically carries out the act is not liable for it, or is liable only in a reduced form. The Code does not list those situations in Art. 28, but they are easy to locate in the general part:

• Mistake. A mistake as to a fact constituting the offence excludes liability if it was unavoidable and, if avoidable, leaves only the negligent form where one exists (Art. 14.1 CP). Someone who deceives another into carrying a package whose contents he does not know is using that person as an instrument.
• Lack of capacity for guilt. The defences of mental disorder, full intoxication and serious perceptual impairment (Art. 20.1, 20.2 and 20.3 CP), or minority of age under Art. 19 CP, which refers the matter to the separate juvenile justice regime.
• Duress and insurmountable fear. A person acting under insurmountable fear is exempt (Art. 20.6 CP). Where that fear was deliberately created by another in order to obtain the act, the act belongs to whoever created it.
• Justified conduct. The executor may be covered by the performance of a duty or the lawful exercise of a right, office or position (Art. 20.7 CP), or by necessity (Art. 20.5 CP), deliberately brought about by the person behind him.

One nuance is often forgotten, and it is precisely the ground the defence works on: the executor's exemption does not automatically turn the person behind him into an indirect principal. Two further things must be proved: that this person knew of the defect that made the executor non-liable, and that he created or exploited it in order to steer events. Without that conscious control, what remains is at most negligence, or nothing.

A neighbouring situation is that of an executor who acts with full knowledge but lacks the status the offence requires of its perpetrator. For corporate structures the Code has its own rule: Art. 31 CP makes a person liable in his own right when he acts as a de facto or de jure director, or in the name or representation of another, even where the conditions or qualities required by the offence are present not in him but in the entity on whose behalf he acts.

Control through an organisation

The second major variant of indirect perpetration does without the non-liable instrument. It is the construction of control through organised structures of power: the person who issues the order from the top of a hierarchy controls the act even though the executor is fully liable, because the structure itself guarantees that the order will be carried out.

Three elements are usually required: an organisation with an effective chain of command; conduct by that organisation outside the legal order in the relevant sector; and the fungibility of the executor, meaning that if the person receiving the order refuses, another will take his place without compromising the result. It is this last feature that moves control of the act upwards.

The figure is not mentioned in the Criminal Code: it is built on the wording of Art. 28 and remains contested precisely because it allows an indirect principal behind a fully liable principal, which classic indirect perpetration rules out. In Spanish practice a good part of these situations is resolved through less contentious routes: inducement under Art. 28.a CP or necessary cooperation under Art. 28.b CP. Where the structure is corporate, the analysis also shifts towards corporate criminal liability and the supervisory duties of Art. 31 CP.

Indirect perpetration and inducement (Art. 28.a CP)

Art. 28.a CP also treats as principals those who directly induce another or others to carry out the act. The boundary with indirect perpetration is clear in theory and slippery in evidence: the person induced decides. The inducer causes the criminal resolution to arise in another, but the person who acts does so freely and is liable as a full principal. In indirect perpetration, by contrast, the executor's decision is vitiated or does not exist as a free decision at all.

Inducement requires influence that is direct — on a specific person and a specific act — effective, in that the person induced must at least begin to carry it out, and intentional. A general suggestion, an ambiguous remark or the mere creation of a favourable climate is not enough: the Code demands a concrete incitement that can be described in the statement of facts.

Art. 28 does not say that the inducer is a principal, but that he shall be considered one. The consequence concerns sentencing: he receives the penalty laid down for the principal of the completed offence under Art. 61 CP. There is, however, an important safety valve. Art. 65.3 CP allows the court to impose the penalty one degree lower where the inducer or the necessary cooperator does not possess the personal conditions, qualities or relationships on which the principal's guilt is founded. It is the decisive rule in special offences, and it is often raised late or not at all. An everyday example of this figure is inducement to give false testimony.

Necessary cooperation (Art. 28.b CP): the act without which it would not have happened

The second equivalence in Art. 28 covers those who cooperate in the commission of the act with conduct without which it would not have been carried out. The statutory test is one of necessity, and it is measured against the act as it actually happened, not against a hypothetical version the court might imagine. If, mentally removing the contribution, the specific offence could not have been committed, the cooperation is necessary.

The most workable guide is that of the scarce resource: the harder it would have been, in that particular situation, to obtain what the cooperator supplied — a key, an access route, confidential information — the closer the contribution comes to necessity. Where what was supplied could easily have been replaced, the classification tends to drop to complicity.

As against indirect perpetration, the difference is again control: the necessary cooperator does not control the act; he makes a decisive contribution to an act controlled by someone else. As against the accessory after the fact, the difference is timing: cooperation must be prior or simultaneous, because intervening after the offence has been carried out, with no prior agreement, is not participation but, where applicable, the offence under Art. 451 CP.

Complicity (Art. 29 CP): the lower rung

Art. 29 CP defines the accomplice negatively and by exclusion: accomplices are those who, not falling within the preceding article, cooperate in the commission of the act by prior or simultaneous conduct. Three features follow: an ancillary and dispensable contribution, a moment prior to or simultaneous with the act, and a subsidiary character with respect to every form covered by Art. 28.

The sentencing consequence is substantial. Art. 63 CP imposes on the accomplice the penalty one degree below that laid down by law for the principals of the same offence, and Art. 70.1.2 CP explains how that degree is built: one starts from the minimum figure set for the offence and deducts half of it.

In figures: where an offence carries a prison sentence of two to five years, the penalty one degree lower runs from one year to two years less one day. That gap — from a floor of two years to a floor of one — is exactly what is at stake when the evidence does not clearly separate a necessary contribution from an ancillary one.

There is also a special regime. For offences committed through mechanical means of dissemination, Art. 30 CP excludes the liability of accomplices and of those who assisted the act, and requires the principals to answer in a staged, exclusive and subsidiary order.

The penalty attached to each role

The Code's allocation of penalties is simpler than it looks, and it is worth keeping in mind before arguing about classifications:

• Direct principal, joint principal and indirect principal. The penalty laid down by law for the completed offence (Art. 61 CP).
• Inducer and necessary cooperator. The same penalty, by the equivalence in Art. 28 CP, with the possible one-degree reduction of Art. 65.3 CP in special offences.
• Accomplice. The penalty one degree lower (Art. 63 CP).
• Attempt. The penalty one or two degrees lower than that for the completed offence, having regard to the danger inherent in the attempt and the stage reached (Art. 62 CP).

Superimposed on that scheme is the question of which circumstances transfer between participants. Art. 65.1 CP reserves aggravating and mitigating circumstances of a personal nature to those in whom they are present, and Art. 65.2 CP extends those consisting in the physical commission of the act or in the means used only to participants who knew of them when they acted. The filter applies participant by participant, and should be read together with the general catalogue of mitigating and aggravating factors and the types of penalty at stake.

What the defence looks at

• How specific the accusation is. An indictment that attributes a contribution without identifying the conduct, the moment and its effect on the commission of the offence does not sustain necessary cooperation; at most it sustains complicity.
• Who controlled the course of events. Who decided, who could have stopped matters and when. That is the question separating principal liability from participation.
• The executor's position. If the person who acted was fully liable, indirect perpetration through a non-liable instrument falls away and the charge has to be recast as inducement or cooperation.
• The degree. The argument between necessary cooperation and complicity is worth a full degree of penalty and is usually more productive than disputing the underlying facts.
• Personal circumstances. Art. 65 CP applies to each participant separately; carrying an aggravating factor of the principal across to the participants as a block is a common error.

If you are charged as the principal of an act physically carried out by another person, or with a contribution the prosecution describes as necessary, the classification is fought in the defence submissions and not in the closing speech. You can contact us at +34 91 078 65 74.