Article 268 of the Criminal Code regulates the family relationship excuse, but its application has clear limits and not all property crimes are covered.
In this article, we will analyze what the family relationship excuse is, which crimes it applies to, the cases in which it is excluded, and how an attorney specialized in economic or property crimes can help you if you face a criminal complaint.
What is the family relationship excuse?
The family relationship excuse is a cause of criminal liability exemption established in article 268 of the Spanish Criminal Code, applicable in certain property crimes when these are committed between close family members. Its purpose is to prevent criminal law from interfering in family conflicts of an economic nature, promoting that these disputes be resolved in the civil sphere rather than in criminal courts.
Criminal law intervention in these cases could be disproportionate and harmful to family relationships, especially when there is the possibility of reconciliation.
Where is the family relationship excuse regulated?
The foundation of this excuse is found in reasons of criminal policy. The Supreme Court has noted on numerous occasions that the excuse has the purpose of:
- Limits of the family relationship excuse
Despite its application in certain circumstances, the family relationship excuse is not universal. There are circumstances in which it is not applicable:
When is the family relationship excuse excluded?
If there is violence, intimidation or abuse of vulnerability
The family relationship excuse only applies when the property crime is committed without violence, intimidation or abuse of vulnerability.
Example:
A son who hits or threatens his mother to force her to give him money cannot benefit from the family relationship excuse, since the use of violence excludes its application.This exclusion is justified because the legislator considers that, when violence or intimidation is used, the action ceases to be a mere property conflict and becomes an attack on the security and dignity of the victim.
If the crime affects third parties outside the family
The family relationship excuse does not apply when there are third parties harmed, since the objective of this figure is to prevent strictly family conflicts from being penalized, not to protect crimes that affect persons or entities outside the family.
Example:
A brother forges the other’s signature to apply for a bank loan. Although the fraud occurs within the family sphere, the directly harmed party is the bank, so the family relationship excuse is not applicable.If the crime is not strictly related to property
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When is there a crime of embezzlement in an inheritance?
For there to be embezzlement of an inheritance as a criminal offense, two requirements must be met:
- That the property has already been formally awarded to an heir.
- That a family member, after the award, unlawfully appropriates someone else’s property to the detriment of the other heirs.
Example:
A brother, after the inheritance award, sells real estate that belonged to another heir and keeps the money. In this case, there could be criminal liability for embezzlement, since he has taken possession of property that already legally belonged to another person.
The Supreme Court has established that the appropriation of inherited property is only a crime if the property has already been legally awarded and one of the heirs appropriates what does not belong to them.
Can the family relationship excuse be applied in cases of embezzlement of an inheritance?
If the requirements of article 268 of the Criminal Code are met, the family relationship excuse could apply, which would prevent the imposition of a penalty, although it would not eliminate the obligation to return the property.
Example:
A son appropriates money from his deceased father’s bank account without the consent of his siblings, but without violence or fraud. If it is a property crime between close family members, the family relationship excuse could prevent criminal conviction, a
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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.