Damage offences: penalties, types, negligence

Destroying or damaging another person's property, regardless of whether it is movable or immovable, is a criminal offence under the Criminal Code. Specifically, it is what is known as the crime of damage. Here, we would like to focus on this in depth so that you can find out what the penalties are and what types of offences exist.

What is considered a crime of damage?

As mentioned above, this offence refers to the action carried out by a person with the purpose of destroying or damaging another person's property. Generally, this type of material damage aims to reduce the economic and/or patrimonial value of the property in order to cause damage to it. But where is the offence of damage found in the Criminal Code? To find it, we must take a look at articles 263-267 of this legal text, which are located within the chapter on crimes against patrimony and property.

For clarification, only the material damage caused is taken into account in determining this offence. In other words, the existence of a profit motive on the part of the perpetrator or the damage to property is not taken into consideration. Nor is it taken into account that this damage may generate a benefit for the active subject (the perpetrator) or the passive subject (the victim).

What types of damage offences are there?

There are two main categories into which this type of crime against private property can be divided. Let's take a look at them.

Malicious damage offence

This is the most common typology and the one that is the protagonist of most of the cases heard in the courts. In order for it to exist, it is necessary for the active subject to have acted with intent or, in other words, for the perpetrator to have acted with the will to cause the damage and with full knowledge that his action would give rise to it.

However, what really determines the seriousness of this type of crime against private property when there is intent is the seriousness of the damage caused to another's movable or immovable property. In this sense, the Penal Code establishes three subcategories, which are:

• Minor damage offence. The misdemeanour of misdemeanour involves the imposition of a sanction of between 1 and 3 months. This typology is reserved for those actions that involve damage valued at €400 or less. This is what is often mistakenly referred to as a misdemeanour of damage.
• Basic offence of damage. It carries a fine of between 6 and 24 months and it is possible to include practically all cases that cannot be considered as a crime or misdemeanour of damage.
• Aggravated damage offence. This is the only case in which a prison sentence (between 1 and 3 years) can be applied. It also entails the payment of a fine of between 12 and 24 months.

The articles corresponding to the offence of criminal damage in the Criminal Code specify all those cases in which an aggravated offence can be considered to have been committed. Specifically, it is necessary that the offender has caused the damage by means of:

• The use of corrosive and/or poisonous substances.
• Infection and contagion of livestock parts.

For its part, the judge may also consider that a serious damage offence has been committed if the taxpayer is left in an economic situation that can be assimilated to ruin or bankruptcy. Also if the action has been committed on property in the public domain or for public use or if it has seriously affected the general interest. Special mention should be made of damage caused with the aim of harming the exercise of authority or to prevent the normal application of its functions.

Crime of negligent damage

We have already explained what is considered a tort and how it is classified if there is intent on the part of the perpetrator. But what happens when damage is caused through recklessness? That is to say, when there is no awareness or explicit will on the part of the perpetrator to cause them with his actions. To find out what the Criminal Code says about the crime of negligent damage, we must turn to Article 267. It clearly specifies that only cases arising from gross negligence involving fault can be prosecuted. It should be remembered that, in legal terms, the concept of fault refers to a criminal action that is committed without intent but also without the necessary precautions having been taken to avoid it.

In any case, Article 267 of the Criminal Code determines that negligent damage is only punishable if it exceeds €80,000 and if there is a prior complaint by the victim. It is punishable by a fine of 3 to 9 months.

When is the statute of limitations for a tort offence?

It depends on the classification given to the offence. In this sense, the statute of limitations for minor offences is one year after the offence has been committed. The basic, aggravated and imprudent types take 5 years to do so.

Now that you know when the statute of limitations expires and that you know its definition and categories, we would like to make one more point. It is advisable that, whether you have been a victim or a perpetrator of this type of property crime, you should consult a specialised lawyer. Only he or she will be able to offer you the advice you need to defend your interests in the best possible way.