We have recently followed in the press the news of a person who pretended to be the victim of a homophobic attack committed by eight unidentified hooded men, and for which he filed a complaint with the National Police. 48 hours later, said person was again summoned by the Police to take a new statement, confessing to the agents that the facts denounced were not true, having been all the result of his invention.
This situation has raised questions in public opinion, who wonder if such conduct is criminally reprehensible, and if so, what crime would it entail?
It has been proposed that it could constitute a crime of false reporting, while other voices have positioned themselves for the crime of simulating a crime.
Both criminal types, although they may seem the same if one or the other is used interchangeably, present their differences.
The crime of false reporting is sanctioned in article 456 of the Penal Code:
“1. Those who, with knowledge of their falsehood or reckless disregard for the truth, accuse any person of facts that, if true, would constitute a criminal offense, if this accusation were made before a judicial or administrative official who has the duty to proceed to their investigation, will be sanctioned:
- 1.º With a prison sentence of six months to two years and a fine of twelve to twenty-four months, if a serious crime is charged.
- 2.º With the penalty of a fine of twelve to twenty-four months, if a less serious crime is charged.
- 3.º With the penalty of a fine of three to six months, if a minor offense is charged.
“2. The complainant or accuser may not be proceeded except after a final sentence or also a final order, of dismissal or filing of the Judge or Court that has heard of the imputed infraction. These will order to proceed ex officio against the complainant or accuser provided that the main cause shows sufficient indications of the falsity of the accusation, without prejudice to the fact that the fact can also be pursued after a complaint by the offended person”.
As can be seen from the simple reading of the precept, the crime requires that the imputation of facts be directed against a specific, identified person, and that said facts present a criminal appearance, and their imputation is carried out knowing that the imputed crime is false for never having happened.
Likewise, the crime requires for its commission that the addressee of the falsely imputed conduct be an administrative or judicial official, and its explanation lies in the fact that the classification of this crime is trying to protect the correct exercise of the judicial activity of which The Administration of Justice would be harmed, in addition to the honor of the person against whom the complaint is directed -because it is a multi-offensive crime-, so it is obvious that the complaint should be filed before the appropriate subjects to investigate and punish the facts that are reported.
On the contrary, the crime of simulating a crime is regulated in article 457 of the Penal Code:
“Anyone who, before any of the officials mentioned in the previous article, pretends to be responsible or victim of a criminal offense or denounces a non-existent one, causing procedural actions, will be punished with a fine of six to twelve months”.
The simulation of a crime does not require that the complaint be directed against a specific person, but rather that the subject blames an unidentified third party or himself for the commission of a crime. In this crime, the legal right to be protected is exclusively the Administration of Justice, as the accusation is not directed against a specific person, as was the case in the crime of false reporting.
The simulation of crime requires that procedural actions be provoked, that is, that a criminal procedure be initiated before an Investigating Court as a result of the conduct displayed by the subject. In the event that these procedural actions do not take place, we would find that the conduct would not be punishable by missing one of the essential elements of the crime.
Prior to the reform of the Criminal Procedure Law of 2015, the possibility that the conduct was understood to be committed in an attempted degree was contemplated, this being punishable in some cases, and not in others.
For example, it could happen that the criminal procedure was not initiated by a voluntary withdrawal of the subject, who voluntarily acknowledged to the police authority the falsity of the denounced facts, thus preventing the report from reaching the Court, and therefore, that procedural proceedings were initiated. In these cases the attempt was not punishable.
In other cases, the criminal procedure was not initiated for reasons beyond the control of the subject, as could happen in cases in which the subject had been discovered by police officers, in these cases it was understood that the withdrawal was involuntary, since the subject would have acted impelled to avoid the penal sanction. Therefore in the involuntary withdrawal, the attempt was punishable.
The reform of Law 41/2015 of October 5 determined that there are no imperfect forms of execution of the crime of simulation of crime, that is, it cannot be committed in an attempted degree. The reason for this is due to the modification of art. 284 of the Criminal Procedure Law, which establishes the following:
“1. As soon as the officials of the Judicial Police become aware of a public crime or are required to prevent the investigation of proceedings due to a private crime, they will participate in the judicial authority or the representative of the Public Prosecutor’s Office, if they can do so without ceasing in the practice of prevention procedures. Otherwise, they will do it so they have finished them.
2. However, when there is no known perpetrator of the crime, the Judicial Police will keep the report at the disposal of the Public Prosecutor and the judicial authority, without sending it to them, unless any of the following circumstances concur:
- a) That they are crimes against life, against physical integrity, against sexual freedom and indemnity or crimes related to corruption;
- b) That any diligence be carried out after seventy-two hours have elapsed since the opening of the report and these have had some result; or
- c) That the Public Prosecutor’s Office or the judicial authority request the remission.
In accordance with the right recognized in article 6 of Law 4/2015, of April 27, of the Statute of the Victim of the crime, the Judicial Police will inform the complainant that if the perpetrator is not identified within a period of seventy and two hours, the proceedings will not be sent to the judicial authority, without prejudice to their right to reiterate the complaint before the prosecutor’s office or the investigating court. […]”
The precept establishes that the proceedings will not be sent to the judicial authority if within 72 hours it has not been possible to identify the perpetrator or perpetrators of the act, -except that the Public Prosecutor or the ex officio judicial authority request their referral-. Therefore, if the proceedings are not sent to the Court, and therefore no procedural steps are carried out -a result that is intended to be avoided with the punishment of this crime-, it is understood that the crime has not been committed, since during that time the complainant can retract or confess before the police authority without their conduct entailing criminal consequences.
In the event that the complaint had been filed directly before the Court, the crime would be understood to have been fully committed, since its presentation would force its distribution and the initiation of a criminal procedure, even if there was no known perpetrator.