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Noticia Científica I

Crimes of terrorism in the Spanish criminal code: concept and application

Crimes of terrorism very clearly show the current situation of Western criminal systems. Since the terrorist attacks in 2001, all important problems of criminal politics of the time treat these infringements particularly harshly. Spain is one of the European countries whose criminal law is toughest and longest, dating back to the beginning of the constitutional political system. Despite this, in the last ten years there has been a considerable expansion of these crimes, both legislatively and in the legal application: sentences have been toughened as has their system of execution, new crimes have been introduced and the case-law interpretation of the concept of terrorist organisation has been expanded.

In their work “Los delitos de terrorismo estructura típica e injusto” (Crimes of terrorism typical and unjust structure), Manuel Cancio Meliá, from the Department of Public Law and Legal Philosophy of the UAM, analyses the crimes of terrorism in the Spanish criminal code, dealing both with its theoretical context and case-law application. The aim is to try to show those fields of anti-terrorism law that go beyond intrasystematic and constitutional limits: it tries to identify the “Criminal law” of the enemy of this regulation. Three steps are taken for this: firstly, it briefly presents the general political and criminal situation; secondly, it subjects the legal-criminal concept of terrorism to analysis, to finally carry out a study of the different elements of terrorism.

Having made the general analysis of the relationship between criminal law and terrorism, it is clear that the role of criminal law in preventing terrorism is necessarily very limited. However, following and pursuing the illusion of prevention, anti-terrorism law continues expanding and trying to anticipate it. Beyond this spiral, the most serious element lies in the effects of contamination that irremediably occur: what is tested here ends up going into the ordinary criminal legal system. The escalation of criminal law on terrorism contributes to intensifying the crisis of a criminal and penitentiary system that generates multiple social problems instead of resolving them.

The study of the crimes of terrorism in the Spanish criminal code shows a very extensive and intense incrimination that at many points goes beyond the scope of organised criminal code in a Democracy. In particular, we should state that lately there is a certain trend in case-law which defines merely belonging to a terrorist organisation as a formal crime, merely adhering to an ideology, when the courts should do is define a concept of material conduct of belonging which is clearly delimited. The artificial-legal conversion into terrorists of organisations that merely share a political orientation with the terrorist group, but not organisational structures, also forms part of this evolution.
In the case of the offense of collaboration with terrorist organisations, practical application is heading towards criminalising any contact with terrorists. Faced with this, it is necessary to limit the crime to cases where the agent has given material support to the organisation by their collaboration if we do not want to end up punishing mere ideological support.

Finally, there is a whole ring of expansions around crimes of terrorism in a strict sense which must be radically eliminated from the legal system, (“individual terrorism”, crime of exaltation or justification or crimes or terrorist authors, anti-terrorism law of minors).

This research work is included within the project "Democracy and Security", funded by the Madrid Region and the UAM, of which Manuel Cancio was chief researcher (2006).

  Crimes of terrorism of the Spanish criminal code: concept and application (Spanish)