Criminal Lawyers in Military Crimes
Specialized legal defence in desertion, disobedience and offences against military discipline
Military offences are governed by the Military Criminal Code (Organic Law 14/2015, CPM) and are tried by the military courts, whose jurisdiction is confined to the strictly military sphere: above all, service members and, in certain cases, Civil Guard members. Insubordination (Articles 42-44 CPM) - assaulting, threatening or seriously insulting a superior, disobeying lawful orders - carries 3 months and 1 day to 6 years' imprisonment in peacetime; abandonment of post (Article 56 CPM), an unjustified absence of more than 3 days, up to 2 years, and desertion (Article 57 CPM), 1 to 4 years; abuse of authority, 3 months and 1 day to 5 years. Article 44.3 CPM rules out criminal liability for disobeying an order that would manifestly constitute an offence or a clear breach of the law or of the law of armed conflict. Our defence, acting as civilian lawyers before the Territorial Military Courts and the Central Military Court, draws that line between a disciplinary infraction and a crime.
Military Crimes: Concept, Jurisdiction, Penalties and Defence (Organic Law 14/2015)
Military crimes constitute a specialized branch of Criminal Law, regulated by the Military Criminal Code (Organic Law 14/2015) and prosecuted by the military jurisdiction, a constitutional special jurisdiction (Art. 117.5 SC) whose organization is governed by Organic Law 4/1987 on Competence and Organization of Military Jurisdiction and Organic Law 2/1989 on Military Procedure. Its subjective scope is, above all, military personnel: professional members, activated reservists, trainees at military academies and the other cases in Art. 2 CPM; also the Civil Guard in the cases of Art. 1 CPM, and anyone in the few offences that do not require military status (for example, Arts. 29 and 34 CPM). The protected legal interest is plural: military discipline, operational effectiveness of the Armed Forces, national defence and the constitutional principles of hierarchy, subordination and obedience (Arts. 8 and 30 SC). Fifth Chamber of the Supreme Court doctrine has consolidated a specific doctrinal body on the distinction between disciplinary infractions and military crimes.
Types of Military Offence
The typical modalities are numerous and specific. Crimes against national security and defence (Arts. 24-37 CPM): military treason and espionage, disclosure of secrets, attacks on defence resources, offences against sentries, military authorities or armed forces, and insulting Spain or the military organisation. Crimes against discipline (Arts. 38-48 CPM): military sedition, insubordination (insulting and disobeying a superior) and abuse of authority. Crimes against service duties (Arts. 51-80 CPM): cowardice, disloyalty, abandonment of post or residence, desertion (1 to 4 years in prison; 5 to 15 during armed conflict or a state of siege), breaches of command duties and dereliction of service. Infidelity in document custody is not in the CPM: it is an offence under the ordinary Criminal Code (Arts. 413 to 415 CP). Crimes against property in the military sphere (Arts. 81-85 CPM): fraud, theft, robbery, misappropriation of or damage to military equipment and materiel, and handling their proceeds. And the CPM applies to the acts it covers wherever they are committed (Art. 1.6 CPM), which reaches Spanish military personnel deployed in peace missions, collective defence (NATO) or armed conflict.
Penalties and the Military Criminal Code
The statutory penalties are severe and modulated by gravity and context. The main penalties are imprisonment (from 2 months and 1 day to 25 years, save where the Criminal Code exceptionally leads to another result: Art. 12 CPM), loss of position, military suspension from position, absolute disqualification from commanding a warship or military aircraft, fine and home detention (Art. 11 CPM). Military treason carries 15 to 25 years in prison and military espionage by a foreign national during armed conflict, 10 to 20. Insubordination ranges from 3 months and 1 day to 6 years in peacetime and may reach 20 during armed conflict. Abandonment of post carries 3 months and 1 day to 2 years in prison and desertion 1 to 4 years (more during armed conflict or a state of siege). Abuse of authority, 3 months and 1 day to 5 years in prison. In international operations, Rules of Engagement (ROE), International Humanitarian Law (Geneva Conventions) and the applicable treaties also come into play. Derived civil liability and parallel disciplinary liability complete the sanctioning regime.
Defence Strategy
The technical defence rests on four specific axes. First, delimitation between disciplinary infraction and crime: much of the conduct capable of attracting criminal charges is in fact a serious or very serious infringement of the Disciplinary Regime (Organic Law 8/2014); providing evidence of operational context, service circumstances and consolidated case-law allows reclassifying the procedure. Second, defence of the manifestly illegal order (Art. 44.3 CPM): the law rules out, in all cases, the criminal liability of a service member who disobeys an order whose execution would manifestly constitute an offence — in particular against the Constitution — or a manifest, clear and unequivocal breach of a statutory rule or of the international law of armed conflict. Third, challenging military evidence: superior reports, information files and witness testimonies of comrades may suffer from hierarchical biases; introduction of independent military expert evidence (external consultants in military doctrine, operational law) can dismantle the prosecutor's narrative. Fourth, free choice of civilian lawyer: the military member is not obliged to accept a military duty lawyer (Art. 24 SC); they can freely choose a civilian lawyer specialized in military criminal law.
Current Forensic Practice
In current forensic practice we observe an increase in military proceedings linked to international operations (NATO, UN, EU deployments), missions abroad (Lebanon, Mali, Iraq, Baltic), sexual offences within the Armed Forces (Organic Law 10/2022 on Comprehensive Protection of Sexual Freedom), hate crimes among military, abuse of authority and classified information leaks. The case-law of the Fifth Chamber of the Supreme Court and the criteria of the Togated Prosecutor's Office configure a demanding technical framework. At Alonso Sala, with more than 15 years of experience in criminal defence, we intervene before the Territorial Military Togated Courts, Territorial Military Courts, the Central Military Court and the Fifth Chamber of the Supreme Court, defending military personnel of all ranks (soldiers, NCOs, officers, chiefs and senior commanders) in proceedings for military, disciplinary and mixed crimes.
Main Offences under the Military Criminal Code
Insubordination (Arts. 42-44 CPM)
Assaulting, coercing, threatening, or seriously defaming or insulting a superior. Disobeying lawful service orders. Military sedition (Arts. 38-41) is a separate offence.
Desertion/Abandonment of Post (Art. 56 CPM)
Unjustified absence from unit, posting or residence for more than 3 days, or failure to report when able to (3 to 6 years during armed conflict or a state of siege). Desertion (Art. 57) carries 1 to 4 years.
Abuse of Authority (Arts. 45-48 CPM)
Physical or psychological abuse of a subordinate. Humiliation, threats, or coercion in the military context.
Insulting Spain or the Military Organisation (Arts. 36-37 CPM)
Offending or outraging Spain, its Flag, Anthem or symbols, the Constitution or the King; insulting the Armed Forces, the Civil Guard or their institutions. The penalty is higher where there is publicity or during armed conflict.
Treason and Espionage (Arts. 24-33 CPM)
The most serious offences under the CPM: military treason (15 to 25 years) and military espionage during armed conflict (10 to 20). Disclosure of secrets relating to national security and defence.
Criminal Procedure in Spain: Fast Trials, Extraditions & Prison Law — Defence Guide
Beyond substantive criminal offences, Spanish law contains a complex procedural framework that directly affects defence strategy. Fast-track trials (juicios rápidos), extradition procedures (European Arrest Warrants and bilateral treaties), penitentiary law (classification grades, parole, sentence review) and juvenile justice (LO 5/2000) each demand specialised knowledge. Understanding procedural rights and deadlines is often decisive for the outcome of a case.
Key Procedural Frameworks
| Framework | Legal Basis | Scope | Key Feature |
|---|---|---|---|
| Fast-track trials | Arts. 795-803 LECrim | Offences punishable by up to 5 years prison | Trial listed within the following 15 days |
| European Arrest Warrant | Law 23/2014 | Cross-EU extradition | 60 days to decide without consent (+30 extension) |
| Prison classification | LO 1/1979 (LOGP) | Classification into grades 1, 2 or 3 | Open regime (grade 3) = semi-liberty |
| Conditional release | Arts. 90-93 CP | Release from prison on licence | Grade 3 + ¾ of sentence served + good conduct |
| Juvenile justice | LO 5/2000 | Offenders aged 14-17 | Sanctioning-educational measures, not criminal penalties |
| Criminal record expungement | Art. 136 CP | Deletion of criminal record | Timeframe varies by offence severity |
Key Defence Strategies
Fast-Trial Conformity Advantage
In fast-track proceedings, agreeing to a plea (conformidad) with the prosecution carries a one-third reduction of the sentence sought. This can make the difference between prison and a suspended sentence.
EAW Refusal Grounds
European Arrest Warrants may be refused on grounds of: ne bis in idem (double jeopardy), time-barred offence, minor's age, or if the person will serve the sentence in Spain. Each ground requires specific procedural challenges.
Prison Grade Review
Inmates may contest their classification grade before the Supervisory Judge (Juez de Vigilancia Penitenciaria). Progression to grade 3 (semi-liberty) requires demonstrating good conduct, personal development and reduced recidivism risk.
Juvenile Diversion
For minor or less serious offences committed without serious violence or intimidation, the Prosecutor may end the file and ask for it to be dismissed (sobreseimiento) if the minor reconciles with the victim or makes reparation (Art. 19 LO 5/2000); the technical team may also propose not continuing it (Art. 27.4). The defence can steer the case towards this outcome, which avoids the hearing and any judgment being entered in the juvenile register.
Key Case Law
In fast-track proceedings, once the duty court has checked that the plea meets the legal requirements, it imposes the sentence sought reduced by one-third, even below the statutory minimum.
The CJEU held that where there is a real risk of inhuman or degrading treatment because of detention conditions in the issuing State, the executing authority must request supplementary information and postpone its decision on surrender until that risk can be discounted; if it cannot be discounted within a reasonable time, it must decide whether to bring the procedure to an end.
The Constitutional Court holds that prison classification decisions must be reasoned and subject to periodic review, in line with the fundamental rights of sentenced persons under Art. 25.2 CE.
FAQs on Military Crimes
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Criminal Procedure: Integral Defence Approach
Integral criminal defence requires a panoramic view covering investigation, trial and appeals. Each phase has its own evidentiary and procedural logic.
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