The figure of continued crime, regulated in article 74 of the Penal Code (CP), is of special importance in the field of criminal procedural law. This provision allows punishing as a single crime, applying an aggravated penalty, those behaviors in which certain requirements are met: it requires that there be a “preconceived plan or the taking advantage of an identical opportunity”, as well as a “plurality of actions or omissions” that violate precepts “of the same or similar nature.”
In this context, our legislation allows the punishment corresponding to the most serious crime to be imposed in its upper half (or even up to the lower half of the highest degree).
Now, the requirement of plurality of actions (or omissions) becomes, without a doubt, the most controversial of the elements: what is the difference that allows a plurality of actions to be considered as a single act, and, therefore , punish it as a single crime, or understand that this plurality meets the requirements to apply the figure of continued crime? This is where the theory of unity of action comes into play, a concept widely developed in our jurisprudential doctrine.
In various rulings, the Supreme Court has addressed the issue of the natural unity of action, a figure that makes it easier to recognize the existence of multiple acts, but which are legally valued as a unit.
This perspective implies that the actions that in principle are several are interpreted as a single object of legal assessment, and therefore, the requirement of plurality of actions necessary to apply the continuing crime is not met.
This is reflected, in all, by STS 487/2014, of June 9, which clearly delimits the concepts of unity of action in the natural sense, natural unity of action, typical unity of action and continued crime.
We speak of unity of action in the natural sense when the author performs a single act, understood in a strictly ontological sense, such as delivering a single blow or carrying out a single transaction.
On the other hand, the natural unity of action occurs when, although ontologically there are several acts, these, from a socio-normative perspective, are considered a single action. A classic example would be a beating composed of multiple blows that, together, constitute a single crime of injury. There is also the typical unit of action, where the criminal law itself integrates several actions into a single type of crime, as occurs in drug trafficking crimes or environmental violations.
Finally, the continuing crime is configured when several typical units of action are grouped into a single legal unit, which implies a more severe penalty for the repetition of the unjust act, always complying with the requirements of article 74 of the Penal Code (since, in case Otherwise, the actions would have to be subsumed in a real competition of crimes).
To understand when the natural unity of action is applied, the recent ruling STS 847/2024, of October 10, provides us with a detailed analysis, establishing that, to affirm the unity of action, cohesion at different levels is required. Firstly, from the subjective point of view, it is essential that there be a single act of will that covers all criminal conduct.
In turn, there must be a space-time link between the acts, so that, if they are disintegrated in time or space, the cohesion necessary to affirm the single will is lost. Finally, regarding the regulatory components, the acts must be included within the same criminal offense, so that the set of actions is interpreted as a single infraction.
On the other hand, it is worth remembering, in addition, that the continued crime is foreseen in particular for crimes against property and the socioeconomic order (article 74.2 CP), while it is excluded for those crimes that affect personal property, such as those that attack against life or physical integrity. There are, however, exceptions, and continuity is facilitated in crimes against honor and crimes against sexual freedom and indemnity (article 74.3 CP).
In this sense, the already mentioned and recent October ruling (STS 847/2024) allows us to illustrate this theory in the crimes of document falsification: the accused used an official medical seal from the University Hospital of Ciudad Real and a prescription book to acquire medications in several pharmacies in the same town and on the same day.
This modus operandi, which included the falsification of several prescriptions with the same seal and checkbook, was considered a single act of will with an immediate and spatially unified execution. In this way, the court understood that it was a natural unit of action and, therefore, the figure of the continuing crime was not applicable, upholding the appeal and reforming the ruling of the body a quo with the consequent reduction of the sentence. .
Thus, the importance of distinguishing when the plurality of acts can be identified as a unit of action is essential in criminal procedural law. This difference is crucial to define whether it is appropriate to apply a single typical crime or a continuous crime (or a plurality of crimes in real competition).
The unity of action, as we have seen, requires a precise interpretation and must be based on both the nature of the acts and their spatio-temporal cohesion and the existence of a unified intention.
In the opinion of the undersigned, this issue continues to be a matter of analysis and evolution in our jurisprudence, and there is no doubt that, over time, it will pose new interpretative challenges that will well deserve another more detailed analysis.
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