On the occasion of the recent Organic Law 4/2022 of December 22, on the transposition of European directives and other provisions for the adaptation of criminal legislation to the European Union system and reform of crimes against moral integrity, public disorder and smuggling of dual-use weapons, numerous aspects of the Criminal Code were reformed, among which the introduction of the new crime of illicit enrichment (art. 438 bis CP), on which the following lines will deal with, stands out.
As justified in the Explanatory Memorandum, the inclusion of this criminal offense in our criminal law is due to international recommendations, namely the 2003 Convention against Corruption, the Communication from the Commission to the European Parliament and the Council to fight against organized crime or the announcement by the President of the European Commission in 2022 to strengthen the fight against corruption in the area of illicit enrichment.
Despite the fact that the Explanatory Memorandum states that this is an avant-garde figure in the fight against corruption, the fact is that its incorporation into our Criminal Code had been under consideration for years and the legislator has not decided until now in view of the legal and constitutional doubts raised by this offense[1].
In essence, the main difficulties surrounding the offense of illicit enrichment refer, in essence, to its collision with the right to the presumption of innocence and the right against self-incrimination. Such problems derive from the very formulation of the offense as recommended in the United Nations Convention against Corruption, Article 20 of which provides:
“subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official in relation to his or her lawful income that cannot reasonably be justified by him or her”.
Given the need to act against corruption, especially in those countries, such as Spain, where it is perceived by the population as one of the major problems[2], the crime of illicit enrichment, defined as unjustified enrichment by authorities or public officials, may raise problems of constitutionality since it may lead to a reversal of the burden of proof, given that it places on the defense the need to prove the lawfulness of the disproportionate increase in assets. Likewise, in addition to contravening the right to the presumption of innocence, it may also collide with the right not to incriminate oneself. Since the inconsistency between income received and declared may constitute in itself an indication of having previously committed a crime (whether embezzlement, bribery, etc.) that justifies the need to initiate criminal proceedings, the formulation of the crime of illicit enrichment as we have seen obliges the accused to prove the lawfulness of that which may incriminate him in the commission of another crime; thus depriving him, consequently, of the right not to incriminate himself.
As a consequence of these obvious problems of constitutionality, many states have been wary of this crime, even declaring it unconstitutional in some countries, such as Portugal (in 2012 and 2015), which has forced the Portuguese legislator to redefine this crime as a crime of disobedience in order to make it compatible with its constitution and, in essence, with the right to the presumption of innocence.
The debate that has taken place in relation to this crime is brought up, since without it the regulation that has finally been given to illicit enrichment by means of the LO 4/2022 cannot be understood.
Article 483 bis of the Penal Code states:
“The authority who, during the performance of his function or office and up to five years after having ceased in them, had obtained a patrimonial increase or a cancellation of obligations or debts for a value of more than 250.250,000 euros with respect to his accredited income and openly refuses to duly comply with the requirements of the competent bodies aimed at verifying its justification, shall be punished with imprisonment of six months to three years, a fine of three times the benefit obtained, and special disqualification for public employment or office and for the exercise of the right to passive suffrage for two to seven years”.
Having thus defined the crime of illicit enrichment, we see that the Spanish legislator has chosen to profile it, along the lines of Portugal, more as a crime of disobedience. The protected legal interest is the need for transparency on the part of the authorities as a means of encouraging public confidence in the institutions[3].
Consistent with this, Art. 438 bis of the Criminal Code defines the crime of illicit enrichment as a special crime of its own that only contemplates authorities as active subjects, excluding public officials from the circle of possible perpetrators. This is so since the legislator seems to have wanted this crime to be limited to those who by reason of their position are obliged to declare their assets. However, it should be noted that, in accordance with the concept of authority provided for in Art. 24 of the Criminal Code, we can understand that the crime can be committed by authorities who do not have the obligation or duty to declare their assets, namely, the Public Prosecutor’s Office; or, on the contrary, it excludes as active subjects high-ranking officials who do not have the status of authority but who do have the obligation to report their assets. [4]
As regards the typical action, it should be pointed out that it is a mere activity crime consisting of refusing to give due explanations to the competent bodies in relation to the finding by the latter of unjustified enrichment.
Unjustified enrichment is understood as an increase in assets but also as a decrease in liabilities (cancellation of obligations or cancellation of debts).
It should be noted that another of the elements that have been included in the final formulation of the crime of illicit enrichment in order to make it compatible with the principle of fragmentation of criminal law and ultima ratio, is to set a minimum punishable amount.
The delimitation of the minimum amount of illicit increase in 250,000 euros, however, will surely lead us to find ourselves in practice with a tax crime, since any unjustified increase of more than 120,000 euros produced in a fiscal year is typical in accordance with art. 305 of the Penal Code[5].
Finally, the time period in which this undeclared increase in net worth must take place includes the time during which the position is held or up to five years after leaving office.
Undoubtedly the introduction of this crime in our legal system is due to the desire to pursue corruption further delimiting, if possible, the spaces in which the corrupt can enjoy their illicit gains. However, the regulation of the crime configured in the way we have just seen, although it seems to have avoided its incompatibility with the fundamental right to the presumption of innocence, is defined in such a way that its practical application is doubtful and remains to be seen, among other reasons, because it does not contemplate the possibility of committing the crime through an intermediary, either natural or legal person[6].
[1] https://www.lavanguardia.com/vida/20210604/7506626/campo-debate-sobre-delito-enriquecimiento-ilicito-esta-actualidad.html
[2] https://www.newtral.es/corrupcion-espana/20230210/
[3] BLANCO CORDERO, Isidoro “The crime of illicit enrichment from the European perspective. On its unconstitutionality declared by the Portuguese Constitutional Court” in Revue électronique de l’AIDP, 2013.
[4] QUINTERO OLIVARES, Gonzalo “Una guarnición: el enriquecimiento ilícito”, in https://almacendederecho.org/una-guarnicion-el-enriquecimiento-ilicito.
[5] BLANCO CORDERO, ibidem.
[6] BLANCO CORDERO, ididem.