Concept, function and legal nature of «ancillary consequences» of crime

Abstract

The Spanish legislator introduced in the Criminal Code of 1995 a catalog of legal consequences of crime called «ancillary» in line with what had already been done by other European legislators, such as the German one. This novelty raised the need to resolve on the fundamentals and the legal nature of such consequences, giving raise to the formulation of a plurality of thesis by the doctrine: some authors conceptualize the ancillary consequences as penalties, others as security measures, others as sanctions or other measures with criminal nature and purposes, and finally some authors consider them as consequences of diverse nature —civil, police-administrative— without punitive or criminal character. With the reform of the Criminal Code operated by Organic Law 5/2010 ancillary consequences provided in art. 129 Criminal Code moved to new art. 33.7 with the name «penalties applicable to legal persons», adding to them the fine, and in art. 129 remained the same ones with its original name of «ancillary consequences» whose application is reserved to entities without legal personality. In this article, we start by criticizing the thesis that consider that ancillary consequences have a criminal nature, a punitive one or a sui generis nature but with punitive meaning. Secondly, a concept of the mentioned ancillary consequences deprived of any punitive or sanctionatory meaning is proposed, and based on it we formulate the thesis that despite its legal nomen iuris, the so called penalties for legal persons are still materially non-criminal or non-punitive ancillary consequences.