Joint Perpetration in Criminal Damage: Supreme Court Doctrine on Art. 28 CP
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listIn this article
lightbulbKey Takeaways
- check_circleJoint perpetration without personal execution of the criminal acts
- check_circleRequires meeting of wills and shared functional control
- check_circleComplicity reduces the sentence by one degree
- check_circleArt. 28 CP: key reference for multi-defendant damage cases
Quick answer
Joint perpetration under Article 28 of the Criminal Code requires two elements: a meeting of wills over the action to be carried out, and an objective, causal contribution directed at the common aim. It is not necessary for each joint perpetrator personally to execute the criminal acts; it is enough that their contribution places them in a position of shared functional control of the act. In STS 184/2026 the Supreme Court applies this doctrine to uphold a conviction for criminal damage under Article 263.1 CP even though the defendant did not physically carry out the destruction. The ruling is a practical reference for understanding where joint perpetration ends and secondary participation begins.
STS 184/2026, of 3 March (appeal 5432/2023), provides a didactic application of the Supreme Court's doctrine on joint perpetration to a criminal-damage offence. Chamber Two upholds the conviction of a defendant as a joint perpetrator of an offence under Article 263.1 of the Criminal Code, even though she did not physically carry out the destruction. The ruling reiterates and systematises the requirements of Article 28 CP in a concrete case, making it a practical reference for understanding where joint perpetration begins and ends.
What joint perpetration is and why its limits matter
Article 28 of the Criminal Code treats as authors, among others, those who carry out the offence jointly. That apparently simple formula has required decades of case-law development to distinguish a joint perpetrator from a participant — that is, from an accomplice or a necessary cooperator. The distinction matters because the penalty is the same for all joint perpetrators — and for the necessary cooperator — whereas an accomplice receives a sentence reduced by one degree.
The theory of control over the act, adopted by Supreme Court jurisprudence, provides the central criterion: a person is a joint perpetrator if they functionally control the realisation of the offence, even if they do not personally execute every act described in the provision. Control may be individual — the person who acts alone — functional — the person who acts together with others in carrying out a common plan — or mediated — the person who uses a third party as an instrument.
The two elements of joint perpetration
Settled Supreme Court doctrine requires two elements for joint perpetration to be found:
- Meeting of wills: the participants must share the same plan of action. This agreement may be prior to or simultaneous with the execution, express or tacit. What matters is that each participant knows the role of the others and assumes their own as part of the joint design.
- Objective, causal contribution directed at the common aim: each joint perpetrator's contribution must be effective for the outcome, not merely peripheral. The contribution must place the participant in a position of shared functional control — that is, without their contribution the plan could not have been carried out in the same way.
In the case resolved by STS 184/2026, the defendant did not physically carry out the acts of destruction. However, the Chamber finds that her prior conduct was an essential part of the agreed plan and that, without it, the material execution would not have been possible in the terms in which it occurred. That causal contribution, combined with the prior agreement, grounds the joint perpetration.
The boundary with participation: necessary cooperation and complicity
Alongside joint perpetration, Article 28 CP regulates necessary cooperation: a person who cooperates in the execution of the act with an act without which it could not have been committed also receives the author's penalty. The difference between joint perpetration and necessary cooperation is subtle and has generated extensive case law. In practice, the Supreme Court tends to include within joint perpetration contributions integrated into the co-functional-control of the act — whoever directs, whoever keeps watch, whoever provides access — while necessary cooperation covers essential contributions that do not involve that co-control.
Complicity under Article 29 CP covers auxiliary or accessory contributions: whoever helps but does not co-determine the act. The penalty consequence is different: the accomplice's sentence is reduced by one degree from the author's. In defence strategy, therefore, challenging functional control and showing that the contribution was dispensable or replaceable can be decisive in reducing the applicable penalty.
Joint perpetration applied to criminal damage under Article 263.1 CP
The criminal-damage offence under Article 263.1 of the Criminal Code punishes whoever causes damage to another's property. It is an intentional offence requiring knowledge and the will to damage the property. In the context of joint perpetration, Chamber Two clarifies that the joint perpetrator's intent must cover both their own contribution and the harmful outcome the joint plan pursues: a person who participates in an agreement to damage property knows and accepts that the destruction will result from the coordinated action.
STS 184/2026 is instructive because it shows that the classification as joint perpetrator does not depend on who physically carries out the damage, but on who co-controls the act. This is relevant where several people act in concert: the person who provides the means, who facilitates access to the property, or who coordinates the action may answer as a joint perpetrator of the criminal-damage offence, not merely as an accomplice.
Practical relevance for criminal defence
The doctrine set out in STS 184/2026 has concrete consequences for defence strategy in criminal-damage cases with multiple defendants. The defence of a person who did not physically execute the act must focus on showing that one of the two requirements of joint perpetration was absent: either there was no real meeting of wills, or the contribution attributed to the defendant lacked causal relevance.
If an agreement existed but the contribution was accessory, the defence may seek classification as complicity, with the resulting reduction of the penalty by one degree. Where the contribution came well after execution or outside the joint plan, the argument that the necessary co-functional-control for joint perpetration is absent can also be advanced. In every case, the distinction requires a detailed analysis of the proven facts and of the causal link between the individual contribution and the criminal outcome.
A settled doctrine with broad application
STS 184/2026 does not break new ground: it consolidates settled Supreme Court doctrine on Article 28 CP and transfers it to the specific context of criminal damage. Its value lies precisely in that transfer: it shows how the abstract requirements of joint perpetration operate in a case where the accused did not personally carry out the acts of the offence. The shared-functional-control criterion, applied with rigour, distinguishes the joint perpetrator from the participant and ensures that the criminal response is proportionate to each party's actual role in carrying out the offence.
Frequently asked questions
What distinguishes a joint perpetrator from an accomplice?expand_more
A joint perpetrator holds shared functional control over the act: their contribution is so relevant that without it the joint plan could not have been carried out in the same way. An accomplice, by contrast, provides an auxiliary or accessory contribution that facilitates the offence but does not co-determine it. The Supreme Court places the dividing line in the degree of control the participant exercises over the course of the act, and not in whether they personally execute the acts described in the criminal provision.
Must there be an explicit prior agreement for joint perpetration to be found?expand_more
No. The meeting of wills may be express or tacit, and can form even during the course of the execution itself. What matters is that the participants share the same plan and each assumes their role within it. The Supreme Court accepts so-called adhesive or successive joint perpetration where a person who joins the ongoing act does so with full awareness of the joint action and assumes their share of control over it.
What penalty does Article 263.1 CP provide for criminal damage?expand_more
The basic form under Article 263.1 of the Criminal Code punishes whoever causes damage to another's property with a fine of six to twenty-four months, taking into account the victim's financial circumstances and the amount of harm caused. Joint perpetrators receive the same penalty as the physical perpetrator, since both are treated as authors under Article 28 CP and, unless a modifying circumstance applies, the criminal response is identical.
Can the defence challenge shared functional control when the accused was not present during execution?expand_more
Yes, and it is a common argument. Physical absence during the material execution weakens the functional-control argument, though it does not rule it out if the prior agreement was essential to the outcome. The defence must attack the specific causal contribution: if the accused's contribution was dispensable or replaceable, their conduct is closer to complicity under Article 29 CP than to joint perpetration, with the corresponding reduction of the sentence by one degree.
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Case law discussed
One can be a joint perpetrator without personally carrying out the criminal acts
This analysis discusses a ruling of the Criminal Chamber of the Spanish Supreme Court. You can see its summary and full citation on our case-law page.
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