Criminal Continuity in Property Crimes | Legal Guide

Have you been accused of criminal continuity in a property crime? Here’s what you need to know

The continued offense is a fundamental legal concept in the Spanish Criminal Code, especially relevant in property crimes such as fraud, embezzlement and breach of fiduciary duty. Its application allows for proportional punishment of conduct where an individual has committed multiple unlawful acts within the same criminal plan, avoiding the imposition of excessive penalties due to the accumulation of individualized acts.

What is a continued offense?

A continued offense occurs when a subject commits multiple criminal violations that are connected by a unity of criminal intent. Its purpose is to prevent acts that respond to a single criminal strategy from being sanctioned cumulatively and independently, which could result in a disproportionate penalty.

Regulation in the Criminal Code

Article 74 of the Criminal Code establishes two fundamental rules for its application:

• General rule: The penalty corresponding to the most serious offense is imposed in its upper half, and may reach up to the lower half of the penalty superior in degree.
• Specific rule for property crimes: In these cases, the penalty is imposed considering the total damage caused, in

Application of continued offense in property crimes

Criminal continuity in the crime of fraud

One of the crimes in which continued offense is most frequently applied is fraud, codified in articles 248 to 251 of the Criminal Code. Fraud is considered continued when the subject commits multiple deceptions with the same fraudulent purpose, whether to the detriment of one or several victims.

For example, if a person repeatedly sells non-existent products to different buyers through a fraudulent online store, each transaction would constitute an independent fraud, but since it responds to a single criminal plan, it could be considered a continued offense of fraud.

In these cases, jurisprudence has indicated that if the total sum defrauded exceeds 50,000 euros, the aggravated subtype of article 250.1.5º CP will apply. However, if none of the individual frauds reaches that amount and the aggravation is only justified by the accumulation of amounts, the penalty cannot also be applied in the upper half according to article 74.1 CP, as this would violate the principle of non bis in idem. This means that the same circumstance cannot be sanctioned twice, that is, aggravating the penalty both for the total damage and for the criminal continuity.

Crime

Jurisprudence on criminal continuity in property crimes

The continued offense, regulated in article 74 of the Criminal Code, is a concept that allows for unified punishment of a series of homogeneous violations, avoiding the imposition of disproportionate penalties. However, when these property crimes exceed certain economic thresholds, they may be affected by the aggravated subtype of article 250.1.5º CP.

To ensure proportionality in punishment and avoid double aggravation, the Supreme Court has developed clear jurisprudential criteria, especially after the Non-jurisdictional Plenary of the Supreme Court of October 30, 2007 established that the rule of article 74.1 CP is rendered ineffective if its application involves double assessment of criminal continuity. This means that when the sum of damages has already been used to classify the crime as aggravated, the penalty should not be aggravated again through the upper half.

Supreme Court interpretation of continued offense in property crimes

The Plenary of the Second Chamber of the Supreme Court, in its meeting of October 30, 2007, established the doctrine applicable to continued offense in property crimes. In this regard, the following principles were established:

• Continued offense in property crimes is always sanctioned with the upper half of the penalty.
• The basic penalty is not determined based on the most serious violation, but on the total damage caused.
• When the application of article 74.1 CP generates double assessment of damage, it must be exc