What is the crime of arson and when does it apply?
What exactly does the crime of arson punish?
The crime of arson is covered in article 351 of the Spanish Criminal Code, within crimes against collective security. It sanctions those who cause a fire that poses danger to life or physical integrity of persons. This means that not all fires are crimes, but only those that generate direct personal risk, even if there are ultimately no victims.
Furthermore, the Criminal Code differentiates between fires in forests (art. 352), in non-forested areas (art. 356) and in one’s own property (art. 357), introducing different levels of severity depending on the type of property affected and the dangerousness of the fire.
When is a crime of arson considered completed?
One of the most complex aspects from a legal standpoint is when this crime is considered completed, something that directly influences the severity of the penalty and the defense possibilities.
The jurisprudence of the Supreme Court is clear: the crime of arson is completed as soon as a fire is started under conditions that can objectively generate danger to persons. It is not necessary for the fire to spread or cause personal or material damage. What is essential is the capacity of the act to put lives at risk.
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Penalties for arson on one’s own property: is it a crime if others are not harmed?
It is often believed that burning one’s own property cannot be a crime. However, article 357 of the Criminal Code sanctions these cases with imprisonment from 1 to 4 years, when the fire is caused with:
- Intent to defraud (for example, collecting insurance).
- Harm to third parties.
- Risk of spreading to others’ property.
- Serious environmental damage.
Here it is not necessary to cause actual harm to another, but the reasonable possibility of it occurring is sufficient, or that there exists fraudulent intent.
This criminal type is common in contexts of neighborhood conflicts, financial problems or simulation of crimes to obtain financial benefits.
Penalties for fires without personal risk: the crime of damage by fire
When the fire does not generate danger to persons, but deterioration of material property occurs, the Criminal Code redirects the conduct to article 266, which punishes damage caused by dangerous means (fire, explosives, etc.).
This criminal type contemplates:
- Imprisonment from 1 to 5 years.
- Fine from 6 to 24 months.
What happens if the fire causes one or several deaths?
When a fire causes the death of one or several persons, the Criminal Code does not absorb these results into the arson penalty. In these cases a concurrence of crimes applies, normally an ideal concurrence, between:
- The crime of arson under article 351 of the Criminal Code, and
- The crime of homicide (art. 138 CP) or murder (art. 139 CP), if treachery, especially dangerous means or use of fire to ensure the result are present.
It is not required that the perpetrator have direct intent to kill. It suffices that they foresaw the deadly result and accepted it as possible (eventual intent). In practice, this occurs when fire is set in an inhabited building or to a dwelling with people inside.
For example, a fire started in a building entrance at 4 AM, with neighbors sleeping, can lead to sentences exceeding 25 years if someone dies.
Crime of arson by negligence: can I go to prison?
The Criminal Code also punishes fire caused by gross negligence in its article 358. Unlike the intentional crime, here there is no intent, but there is a serious breach of duty of care.
This usually occurs in conduct such as:
- Having a barbecue in a forested area during high-risk season.
- Doing work with machinery without adopting basic prevention measures.
- Burning stubble without authorization or control.
Abogado penalista en Madrid (Graduado en Derecho y ADE con Máster de Acceso a la Abogacía), experto en procedimientos complejos y técnicos en Derecho Penal. Cuenta con títulos como el Curso de DerechoPenal Avanzado impartido por magistrados del Tribunal Supremo en el Iltre. Colegio de Abogacía de Madrid.