Concealment of Offenders in Marbella

The three forms of the offense under Article 451 of the Criminal Code

Article 451 of the Criminal Code punishes with a prison sentence of six months to three years anyone who, with knowledge that an offense has been committed and without having taken part in it as principal or accomplice, intervenes after its commission in one of the following three ways: helping the principals or accomplices to benefit from the proceeds, product, or price of the offense, without seeking personal profit; concealing, altering, or rendering useless the body, effects, or instruments of an offense, in order to prevent its discovery; and helping those suspected of having committed an offense to evade the investigation of the authorities or to escape their search or capture, through conduct such as assisting their concealment, flight, or transfer, falsifying their identity, or helping them make use of the effects of or obtain benefits from the offense. Case law requires, for all three forms, actual knowledge of the commission of the prior offense — mere suspicion is not sufficient — and that the conduct take place after its commission, since intervention before the act or coordinated with its perpetrators would shift the classification toward principalship or complicity.

The boundary with handling stolen goods and money laundering: the intent of personal profit

The essential distinguishing element between concealment through assisting the offenders to benefit under Article 451.1º of the Criminal Code and handling stolen goods (receptación) under Article 298 of the Criminal Code lies in the intent of profit: whereas the receiver of stolen goods acts to obtain a personal benefit from the effects of the offense, the concealer under this first modality provides assistance to the offender without seeking personal gain, merely facilitating that the perpetrator himself enjoy the illicit proceeds. When the person who receives money or effects from an offense subsequently returns them to the perpetrator, or holds them temporarily for him without keeping them, the correct classification is concealment; when, by contrast, that person incorporates them into their own estate for personal benefit, the conduct must be reclassified as handling stolen goods or, as the case may be, money laundering. A common example of this boundary is that of the intermediary who receives money or stolen effects for the sole purpose of returning them to the person responsible for the offense, whether or not some kind of commission is deducted for managing them — a scenario case law examines with particular attention to determine whether such a commission reveals a genuine intent of personal profit.

Concealment as an autonomous offense: the doctrine of the impossibility of participating in an already consummated act

The dogmatic basis for the autonomy of the concealment offense in relation to the prior offense has been clarified by the Supreme Court:

"...no es posible participar en la ejecución de un delito cuando ya se ha consumado. Por ello la tipificación autónoma del encubrimiento... exige que se trate de comportamientos realizados con posterioridad a la ejecución."

(It is not possible to participate in the commission of an offense once it has already been consummated. This is why the autonomous classification of concealment as an offense requires conduct carried out after the offense's commission.) This autonomy translates into a highly significant practical consequence: under Article 453 of the Criminal Code, the concealer bears criminal liability even where the perpetrator of the concealed offense ultimately turns out not to be criminally liable or to be personally exempt from punishment — for example, by reason of age or mental state — a point that is among the first matters we analyze upon taking on a defense in this field.

The kinship-based statutory excuse (Article 454 of the Criminal Code)

Article 454 of the Criminal Code sets out a statutory excuse of great practical significance: exempt from punishment are those who conceal offenses committed by their spouse or by a person to whom they are bound by a stable relationship of an analogous nature, by their ascendants, descendants, siblings, or relatives by marriage in the same degrees, based on the notion that different conduct cannot reasonably be expected within the closest circle of family solidarity. This exemption is, however, subject to an express limitation of frequent practical application: it does not apply to the first modality under Article 451.1º of the Criminal Code — that is, where the relative assists the perpetrator of the offense in benefiting from its proceeds, product, or price — a case in which the protection of family ties gives way to the interest in preventing property offences from generating a persistent economic benefit through the complicity of close relatives. The excuse does, however, fully apply to the concealment of evidence and to assistance in evading a police or judicial investigation, modalities whose scope case law has analyzed in detail, including in the context of romantic partners and offences of ongoing drug trafficking.