Attempt

The following may be victims of the crime of assault : authorities, their agents and public officials :

-According to Article 24 of the Criminal Code, a public official is any person who, by provision of law or by election or appointment by a competent authority, participates in the exercise of public functions.

-Regarding the concept of authority, it is understood as a person who, alone or as a member of a corporation or collegiate body, has command or exercises jurisdiction. These include members of the Congress of Deputies, the Senate, the European Parliament, and officials of the Public Prosecutor’s Office.

-Finally, law enforcement officers include members of the State Security Forces and Corps dependent on the Government of Spain, and the police forces dependent on the Autonomous Communities and Local Corporations.

As a lawyer specializing in assault , we must bear in mind that, for the facts to constitute an assault, these subjects must be, at the time of the events, exercising the functions of their position, or acting on the occasion of them (that is, the assault is motivated by a previous action by the passive subject in the exercise of his functions).

The penalty provided for in the Penal Code for the crime of assault varies depending on the position held by the victim:

-If it is an authority, the penalty is imprisonment of one to four years and a fine of three to six months .

-If he is an agent of authority or public official, the penalty is imprisonment from six months to three years .

However, if the taxpayer is a member of the Government, of the Governing Councils of the Autonomous Communities, of the Congress of Deputies, of the Senate or of the Legislative Assemblies of the Autonomous Communities, of local Corporations, of the General Council of the Judiciary, a Magistrate of the Constitutional Court, a Judge, a Magistrate or a member of the Public Prosecutor’s Office, the penalty to be imposed is aggravated: imprisonment of one to six years and a fine of six to twelve months .

The penalties indicated above are increased, reaching the highest penalty, when any of the following circumstances occur:

-If the perpetrator uses weapons or other dangerous objects.

-When the act of violence is life-threatening or could cause serious injury. This includes throwing blunt objects or flammable liquids, setting fires, and using explosives.

-If the attack is carried out using a motor vehicle.

-When the acts are carried out during a riot or collective incident within a penitentiary center.

The crime of assault is a crime of mere activity, so it is consummated even if no injury is caused to the victim.

However, if injuries are caused as a result of the attack, we will be faced with an ideal or medial combination of crimes, so the penalty imposed will be more severe.

The answer is negative. For the acts to constitute the crime of assault, it is essential that the perpetrator acted with awareness that the victim held the status of an authority figure, agent of authority, or public official.

In what cases can doubts arise in this regard? For example, when we are faced with a law enforcement officer who is not in uniform and does not wear any distinctive insignia indicating his position. In these cases, it is necessary to analyze whether the offender had identified himself to the perpetrator as a law enforcement officer before the attack or assault.

The answer is no; it depends on the severity of the resistance. In Ruling No. 837/2017 of December 20, the Supreme Court delineates the types of resistance that constitute a crime, specifying which type of crime is applicable in each case:

-Serious active resistance constitutes a crime under Article 550 of the Penal Code.

-Non-serious (or simple) active resistance and serious passive resistance are subsumed under the crime of resistance, as outlined in Article 556 of the Penal Code. This includes cases of struggle between the subject and the officers.

-Non-serious (or minor) passive resistance against authority was previously considered a minor offense, but it has now been decriminalized. It can only be sanctioned administratively.

First, regarding the passive subject of the crime, we must bear in mind that public officials can indeed be victims of the crime of assault, but not of the crime of resistance and serious disobedience.

Secondly, for the conduct to constitute the crime of assault, the victim must be acting in the exercise of his or her duties or in connection with them, while the crime of resistance and serious disobedience only occurs if the victim acts in the exercise of his or her duties (not when acting in connection with them).

Finally, regarding typical conduct, the crime of assault punishes serious active resistance, while the crime of resistance punishes less serious active resistance or serious passive resistance.