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Military Crimes: Concept, Jurisdiction, Penalties and Defense (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 limited to active professional military personnel, reservists under specific conditions and equivalent personnel (Art. 1 CPM); also the Civil Guard when acting in military functions. The protected legal interest is plural: military discipline, operational effectiveness of the Armed Forces, national defense 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.
The typical modalities are numerous and specific. Crimes against discipline (Arts. 42-50 CPM): insubordination, insulting a superior, abuse of authority, abandonment of post. Crimes against service duties (Arts. 51-71 CPM): desertion (in wartime can reach exceptional life imprisonment), cowardice, infidelity in document custody. Crimes against the nation, King, Parliament and form of Government (Arts. 21-41 CPM): treason, military espionage, sedition, rebellion. Crimes against patrimonial assets of the Armed Forces (Arts. 73-93 CPM): damage to war material, military theft. Crimes against military honor and dignity of the Armed Forces. And crimes in international operations (Arts. 94-130 CPM), applicable to Spanish military personnel deployed in peace missions, collective defense (NATO) or armed conflict.
The statutory penalties are severe and modulated by gravity and context. Basic penalties include military prison (from 3 months to 25 years; exceptionally up to 30 years in crimes against the nation in wartime), loss of position, suspension of position, absolute disqualification and fine. Treason and military espionage can reach 15 to 25 years' prison. Insubordination ranges between 3 months and 10 years according to severity. Desertion carries 3 months to 3 years' prison (with aggravators in wartime or conflict). Abuse of authority, 3 months to 5 years' prison. Penalties in international operations are modulated by Rules of Engagement (ROE), International Humanitarian Law (Geneva Conventions) and military cooperation treaties. Derived civil liability and parallel disciplinary liability complete the sanctioning regime.
The technical defense rests on four specific axes. First, delimitation between disciplinary infraction and crime: many conducts susceptible to criminal imputation are actually serious or very serious infractions of the Disciplinary Regime (Organic Law 8/2014); providing evidence of operational context, service circumstances and consolidated case-law allows reclassifying the procedure. Second, defense of the manifestly illegal order (Art. 102 CPM): Fifth Chamber case-law recognizes that refusal to execute a manifestly illegal order (genocide, crimes against humanity, war crimes) is lawful and exempt from criminal and disciplinary liability. 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.
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 offenses 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. Organic Law 1/2025 on Justice Service Efficiency has simplified procedural deadlines. At Alonso Sala, with more than 15 years of experience in criminal defense, 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 Offenses under the Military Criminal Code
Insubordination (Arts. 43-58 CPM)
Insulting, threatening or assaulting a superior. Disobeying lawful commands. Military sedition.
Desertion/Abandonment of Post (Art. 56 CPM)
Unauthorized absence of more than 3 days. Desertion in wartime. Failure to report to assigned post.
Abuse of Authority (Arts. 46-49 CPM)
Physical or psychological abuse of a subordinate. Humiliation, threats, or coercion in the military context.
Crimes against Military Honor (Arts. 60-65 CPM)
Attack on the dignity of the Armed Forces. Desecration of national symbols by military personnel on duty.
Treason and Espionage (Arts. 20-33 CPM)
The most serious offenses under the CPM. Cooperation with a foreign power. Disclosure of classified military secrets.
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 within 15 days of arrest |
| European Arrest Warrant | LO 23/2014 | Cross-EU extradition | 60-day maximum execution |
| 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 | ¾ of sentence served + good conduct |
| Juvenile justice | LO 5/2000 | Offenders aged 14-17 | Educative measures, not punishment |
| 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 can yield a sentence reduction of up to one-third. 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 juvenile offenders, the defence can request diversion (sobreseimiento) if the minor completes a mediation or reparation programme. This avoids formal proceedings and prevents a juvenile record entirely.
Key Case Law
The Court confirmed that defendants who reach a plea agreement in fast-track proceedings have an absolute right to the one-third sentence reduction. The judge cannot refuse the agreed sentence if it falls within the statutory range.
The CJEU established that execution of a European Arrest Warrant may be suspended if there is a real risk of inhumane treatment in the issuing state. The executing authority must request specific assurances before surrender.
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
What are military crimes? expand_more
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Can a soldier refuse to carry out an illegal order? expand_more
What is the offense of desertion/abandonment of post? expand_more
Can drug use be a military crime? expand_more
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Are military personnel on international missions subject to it? expand_more
What is military insubordination? expand_more
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Criminal Procedure: Integral Defense Approach
Integral criminal defense requires a panoramic view covering investigation, trial and appeals. Each phase has its own evidentiary and procedural logic.
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