Crime of Abandonment of Destination: concept, regulation and penalties (2023)

Hecrime of abandonment of destinationit's acrimethat can only be committed by authorities and public officials, andespecially members of the Armed Forces and the Civil Guard.

The crime of abandonment of destination and its penalties in the Penal Code

For authorities and public officials, the crime of abandonment of destination is typified in article 407 of thePenal Code:

1. The authority or public official who abandons his destination with the purpose of not preventing or not prosecuting any of the crimes included in Titles XXI, XXII, XXIII and XXIV will be punished with a prison sentence of one to four years and absolute disqualification for employment or public office for a period of six to ten years. If he had made the abandonment in order not to prevent or not prosecute any other crime, the penalty of special disqualification for employment or public office for a period of one to three years will be imposed.

2. The same penalties will be imposed, respectively, when the purpose of the abandonment is not to execute the penalties corresponding to these crimes imposed by the competent judicial authority.

Article 407 of the Penal Code

In view of the aforementioned article, it is clear that this is a crime that cannot be committed by any official or public authority, since express mention is made of the purpose ofnot prevent or not prosecute any of the crimes included in Titles XXI, XXII, XXIII and XXIVof the Penal Code.

Specifically, the crimes covered by the titles collected are:

• Title XXI: Crimes against the Constitution
• Title XXII: crimes against public order
• Title XXIII: crimes of treason and against the peace or independence of the State, and crimes related to National Defense
• Title XXIV: crimes against the International Community

For those cases in which any of the crimes included in said titles is prosecuted or preventedthe penalty will be from 1 to 4 years in prison, together withdisablementabsolute for employment or public office from 6 to 10 years.

On the contrary, when the abandonment of the destination is committed to avoid prosecuting or preventing any other crime not included in titles XXI to XXIV, there will be no prison sentence but there will be special disqualification for employment or public office from 1 to 3 years.

It's important to put attention onIt's about aintentional crime, which therefore requires the existence ofdeceit, that is, the conscience and will on the part of the official or public authority of the consequences of abandoning the destination.

This crime is closely related to thecrime offailure to prosecute crimes.

Article 407 of the Criminal Code seeks to guarantee that officials act in accordance with the principle of legality and subjection to the legal system. The abandonment required by the guy has to be enough to encourage the commission of the crime. By "destination" must be understood "service", "occupation" or "space where the official or authority performs its functions", that is, in a broad sense.

In order for the crime of abandonment to be incurred, the official must leave his destination, aware of not preventing or not prosecuting an illegal act, and it is not necessary for the crime whose prosecution is omitted to be committed.

An example of this crime could be the abandonment of an authority agent from a surveillance point that allows smuggling to be carried out.

Juan Carlos Fernandez Monteagudo, lawyer specializing in criminal law and military law inMonteagudo y Vales Lawyers

Crime of abandonment of destination in the Military Penal Code

Among the officials and public authorities that can commit the crime of abandonment of destination deserves aspecial mention in the case of civil guards and members of the armed forces.

In the military field, abandonment of duty is defined as the conduct that consists of theArbitrary interruption by the military or civil guard of the provision of the service to which he is obliged, breaching their military duties with them.

It is regulated in article 56 of theMilitary Penal Code, which is included in Book II (Crimes and their penalties), Title IV (crimes against the duties of the service), Chapter III (Crimes against the duties of presence and provision of the service):

1. The soldier who, in breach of current regulations, is absent from his Unit, destination or place of residence for more than three days or does not show up, being able to do so, will be punished with a sentence of three months and one day to two years of prison.

2. In a situation of armed conflict or state of siege, the absence of the military or his lack of incorporation for a period of more than twenty-four hours will be punished with a prison sentence of three to six years.

3. For the computation of the aforementioned terms, the counting will begin from the moment in which the absence or lack of incorporation occurs, until the moment in which the presentation takes place.

Article 56 of the Military Penal Code

Pursuant to the aforementioned article, any military or civil guard who is absent or does not show up at their unit, destination or place of residence for more than three consecutive days without having a justified reason and being able to do so, will be punished with apenalty of 3 months and 1 day to 2 years in prison.

In the case of armed conflict, the term is reduced to 24 hours and the prison sentence increases to 3 to 6 years.

The crime of abandonment of post and the crime of desertion in the military sphere

It is closely linked tomilitary desertion crime, although they are not the same since in the desertion the military or civil guard must have a will to avoid fulfilling their obligations permanently.

Article 56 of the Military Criminal Code seeks to guarantee the presence of the military in the place of residence in order to comply with the obligations of the Armed Forces. By residence we must understand the municipality where the destination is located.

It is important to remember that the duty of availability of the military does not disappear due to a temporary discharge from the service, in such a way that an unauthorized displacement during the discharge can be punishable by this article. The military who moves without authorization must prove the impossibility of complying with the duties of presence and availability.

Unlike the abandonment of destination of article 407 of the Criminal Code, it does not require that the abandonment be accompanied by the intention of not prosecuting a crime or not preventing its commission. The crime is committed with the simple abandonment of the place of residence without proper authorization.

Juan Carlos Fernandez Monteagudo, lawyer specializing in criminal law and military law inMonteagudo y Vales Lawyers