1ORGANIC ACT 10/1995, DATED 23
NOVEMBER,ON THE CRIMINAL CODE.GOVERNMENT OFFICES
: Ofcial State Gazette number 281 on 24
RECITAL OF MOTIVES
If the legal order has been defined as a set of rules that regulate the use of force, one may easily understand theimportance of the Criminal Code in any civilised society. The Criminal Code defines criminal and misdemeanoursthat constitute the cases for application of the supreme action that may be taken by the coercive power of the State,that is, criminal sentencing. Thus, the Criminal Code holds a key place in the Law as a whole, to the extent that, notwithout reason, it has been considered a sort of “Negative Constitution”. The Criminal Code must protect the basicvalues and principles of our social coexistence. When those values and principles change, it must also change.However, in our country, in spite of profound changes in the social, economic and political orders, the current textdates, as far as its basic core is concerned, from the last century. The need for it to be reformed is thus undeniable.Based on the different attempts at reform carried out since the establishment of democracy, the Government hasprepared a bill submitted for discussion and approval by the both Chambers. Thus, it must explain, even thoughbriefly, the criteria on which it is based, even though these may easily be deduced from reading its text.The axis of those criteria has been, as is logical, that of positive adaptation of the new Criminal Code to theconstitutional values. The changes this bill introduces in that direction are innumerable, although it is worthwhilepointing out some of these.Firstly, a full reform of the present penalties system, in order for it to achieve the aims of re-socialisation assignedto it by the Constitution. The system proposed partially simplifies regulation of custodial sentences, while extendingthe possibilities of these being replaced by others that affect less basic legal assets and, on the other, introduceschanges in monetary penalties, adopting a day-fine system and adding community service work.Secondly, the existing antinomy between the principle of minimum intervention and the growing needs for protectionin an increasingly more complex society have been dealt with, with a cautious approach to new kinds of offence,although, in turn, eliminating criminal offences that have become obsolete. In the first sense, it is worth pointing outthe introduction of offences against the social and economic order, or the new provisions on offences concerningorganisation of the territory and natural resources; secondly, the disappearance of the complex figures of robberywith violence and personal threat that, having arisen in the context of combating highway robbery, should disappear,leaving the way to apply the general rules.Thirdly, special emphasis has been placed on protecting fundamental rights and an attempt has been made todesign the punitive instrument with special care wherever the exercise of any of these is at stake: for example, onone hand, specific protection of moral integrity, and on the other, the new regulation of offences against honour. Onspecifically protecting moral integrity, citizens are granted greater protection against torture, and by defining offencesagainst honour in the manner proposed, freedom of expression is granted the full relevance it may and must berecognised under a democratic regime.Fourthly, and in keeping with the objective of protecting and respecting fundamental rights, the regime of privilegeenjoyed up to present by unlawful interference by civil servants in the rights and liberties of the citizens has beeneliminated. Thus, it is proposed that arrests, entering and searching dwellings carried out by authorities or officersoutside the cases allowed by the Law be treated as aggravating forms of the relevant common offences, and not asthey have been up to present, that is, as special offences that, incomprehensibly and unjustifiably, had been mitigated.