June 9, 2017
The entry into force of Law 35/2015 on January 1, 2016, has increased doubts regarding the application of the commonly known "Traffic Scale" in criminal jurisdiction. This raises legal uncertainty among prosecutors, defenses, subsidiary civil liability entities, and insurers when facing criminal proceedings. Therefore, this article will attempt to resolve the most relevant issues surrounding this matter, also presenting arguments for and against the application of the new scale in calculating injuries in criminal cases.
If there were already doubts about the application of the so-called "Traffic Scale" in criminal matters not related to traffic accidents, these doubts have increased since the entry into force of Law 35/2015, of September 22, 2015, which amended the system for assessing damages and losses caused to persons in traffic accidents—commonly referred to as the "New Scale"—reforming the system for assessing injuries outlined in Royal Legislative Decree 8/2004, of October 29, approving the revised text of the Law on Civil Liability and Insurance in the Circulation of Motor Vehicles. However, this article does not aim to explain the differences between the two scales, provide guidelines for their application, or explain the undeniable change in injury assessment between them, topics we leave for other publications. Instead, this article aims to explain the doubts that exist in criminal forensic practice regarding its application.
As is known, both before and after the reform, Royal Legislative Decree 8/2004 applies imperatively to the assessment of injuries resulting from motor vehicle accidents. However, in other matters and in all jurisdictions, the system for assessing damages provided for in both the old and the new scale has always had an advisory nature, never binding. Its application to a specific case has always been at the discretion of the Court. See, for example, the rulings of the Supreme Court (STS) First Chamber Rec. 1459/2013; STS Second Chamber Rec. 2423/2001; STS Third Chamber Rec. 596/2002; STS Fourth Chamber Rec. 1219/2014. Once the advisory nature of the scale has been introduced, we will focus this article on its application in criminal jurisdiction, its distinction based on the subjective aspect of the overall type of injustice, and the arguments for and against the application of the new or old scale to criminal cases prior to the entry into force of Law 35/2015.
II. APPLICATION OF A DAMAGE ASSESSMENT SYSTEM IN CRIMINAL CASES.
As we introduced above, the traffic scale has never been mandatory for injuries suffered outside of traffic accidents. However, the Second Chamber of the Supreme Court has frequently spoken about the advisory nature of the assessment system, always as a guide for the parties and judges in calculating damages, in the interest of minimal legal certainty regarding liability for those involved in a criminal proceeding—prosecutors, defenses, and insurers.
In this regard, the well-known STS No. 2076/2002, Second Chamber, of January 23, 2003, in a case of intentional injuries, points out regarding the application of Additional Provision Eight, which introduced the System for the assessment of damages and losses caused to persons in traffic accidents of Law 30/1995, of November 8, regarding the Organization and Supervision of Private Insurance provision repealed by RDL 8/2004: "Its scope, however, is that of patrimonial liability derived from damage to persons in traffic accidents, as stated in the Explanatory Memorandum of the law and specified in art. 1.2 of the General Provisions, therefore, the scale system was not mandatory for the present case, which does not mean that the sentencing court cannot take it into account, also in intentional crimes, although not bindingly, as guiding principles, adapting it to the specific case with all the specificities and nuances that they deem pertinent and justified within their interpretative discretion."
In the same vein, the Madrid Provincial Court No. 97/2007, 27th Section, October 5, 2007, highlights the non-binding nature of the scale and its advisory nature: "Moreover, it cannot be considered that we are facing an exorbitant compensation, being adjusted to the indemnity values provided for in traffic accidents in the Law on Civil Liability and Insurance in the Circulation of Motor Vehicles and Resolution of January 7, 2007, of the General Directorate of Insurance, and whose application hermeneutically has been recognized by the Supreme Court in judgment No. 2076/2002, of January 23, 2003, and by the judges of the Provincial Court of Madrid in a meeting held on June 10, 2005, without prejudice to its possible increase in consideration of the intentional nature of the crime or offense." However, an example of non-application of the scale in criminal law can be found in the recent Madrid Provincial Court No. 488/2016, 7th Section, September 21, 2016 (LA LEY 124525/2016), in the case known as "Madrid Arena," with evident media repercussion, in which, facing offenses of negligent homicide, the Court does not apply the scale, despite the Prosecutor's Office's request for its application with a 50% increase, stating that the Court resorts to coinciding criteria in similar cases, given that: "they are considered fairer considering the nature of the adjudicated facts."
III. CRIMES TO WHICH THE INJURY ASSESSMENT SYSTEM IS APPLICABLE.
Another important issue to analyze is whether the assessment system introduced originally by Law 30/1995, currently contained in Law 35/2015, is applicable only to reckless crimes or can also serve as an advisory guide in intentional crimes, given the greater reproach that intentionally committing a crime may entail. Well, the majority jurisprudential doctrine understands that the "traffic scale" is applicable as an advisory guide in intentional crimes. In this regard, regarding the application of the scale in intentional crimes, STS Second Chamber No. 181/2017 of March 22, 2017 (LA LEY 15061/2017) recognizes: "It is not mandatory in events other than traffic incidents, and therefore it is not imperatively applicable when dealing with intentional crimes. However, nothing prevents it from serving as a reference regarding the compensations that must be agreed upon in cases of intentional crimes." However, in forensic practice, it is customary for the scale assessment to operate as a minimum framework and to be increased by a percentage or amount in the case of intentional actions, especially when they are particularly traumatic and violent, whenever requested by the prosecutors, in application of the principles of rogation and congruence. Regarding the distinction between liability for intentional and reckless crime, the STS Second Chamber No. 799/2013, November 5, 2013 (LA LEY 170317/2013), pronounces itself on a homicide offense, distinguishing the subjective aspect of the type, to confirm the need to increase civil liability in the case of intentional actions: "Civil liability for intentional crime is greater than for reckless crime. (...) The former are not guided by criteria of equivalence or justice, but by parameters set by the financial system of the insurance sector in its various forms. These purely economic criteria, obtained from a mathematical calculation, clash head-on with the physical, psychological, and material damages caused by intentional conduct and the multiplicity of motivations that may drive it, not ruling out the intentional and deliberate decision to cause the greatest possible suffering." In this regard, examples of percentage increases in the application of the scale in intentional crimes can be found, among others, in: Madrid Provincial Court, No. 15/2008, 27th Section, June 4, 2008 (LA LEY 122130/2008): "30% increase due to the intentional nature of the crime and the fact that the homicide occurred in the presence of a minor." Madrid Provincial Court, No. 48/2010, 29th Section, June 18, 2010 (LA LEY 124121/2010): "(...) without prejudice to its increase by 20% considering the intentional nature of the crime, with clear disregard for establishing as a limit what is requested by the accusations due to the imperatives of congruence and devices." Judgment No. 37/2017 of Madrid Provincial Court, 29th Section, January 30, 2017 (LA LEY 15998/2017): "Although it increases by 25% considering the intentional nature of the attack and its ferocity, resulting in a long hospital stay for healing, with multiple complications and sufferings, with the limit of what is requested by the public prosecutor, the only accusing party, due to the requirements of the device principle." Against this position, part of the doctrine understands that the commission of intentional crimes already entails a greater punitive reproach in the Criminal Code, so they do not consider that civil liability should increase when the perpetrator acts intentionally. In this regard, the Madrid Provincial Court itself recognizes in other judgments the absence of an obligation to apply a corrective factor or increase in intentional injuries, as stated in Madrid Provincial Court No. 600/2016, 2nd Section, October 3, 2016 (LA LEY 165870/2016): "In a meeting of the judges of the Madrid Provincial Court held on June 10, 2005, hermeneutic value was recognized in the application of this scale without any type of correction factor or increase due to the intentional nature of the injuries. Ultimately, the court must only consider the principle of full compensation for the damages and losses caused."
IV. IF IT IS DECIDED TO APPLY THE BAREMO, WHICH BAREMO SHOULD BE APPLIED?
Law 35/2015 came into force on January 1, 2016, and as mentioned above, the system for assessing injuries has been applied in an indicative manner. Therefore, the question that arises in criminal practice is whether it should be applied in an indicative manner:
- What scale should be applied to actions prior to January 1, 2016, but which are judged after its entry into force? This question is asked by all legal operators when faced with a criminal case where the offense would have been committed earlier, but after several years of instructions, the trial is now being held. As prosecution, we must calculate the civil liability, or as defense, oppose the calculation performed. First, it should be noted that most recent judgments addressing this issue decide to apply the scale contained in Law 35/2015, even if the criminal act was committed before January 1, 2016, or even apply the scale, as is the case with the aforementioned "Madrid Arena" sentence.
Examples of the application of the new scale contained in Law 35/2015: Judgment No. 37/2017 of the Madrid Provincial Court, 29th Section, January 30, 2017 (LA LEY 15998/2017) in an attempted homicide: "For the assessment of personal damages, determined according to the forensic medical report, accepted in this point by the defense of the accused, we will adhere to the scale of Law 35/2015, of September 22, reforming the system for assessing damages and harm caused to persons in traffic accidents." Judgment No. 10/2017 of the Madrid Provincial Court, 16th Section, January 10, 2017 (LA LEY 8401/2017) also in a case of intentional injuries: "However, it is the practice of this Provincial Court to take as indicative reference the compensations provided in the aforementioned scale contained in Law 35/2015 and increase by a significant percentage, from 20 to 50%, the amounts fixed therein." Judgment No. 73/2017 of March 16, 2017, from the Criminal Court No. 3 of Vigo (LA LEY 7693/2017) in a case of serious medical negligence causing injury: "Firstly, regarding the Scale to be considered when setting the corresponding compensations in favor of the harmed party, the decision in this case is to apply the new Scale introduced by Law 35/2015, (...) which must be taken into account that it is applied solely for indicative purposes." Analyzing the current criminal case law doctrine, it is concluded that the Courts and Tribunals generally apply Law 35/2015 to actions prior to January 1, 2016, especially in cases of intentional crimes, since as we have reiterated, the assessment system is applicable in an indicative manner, so it does not bind the Judge, who may understand that the new scale restores justice more fairly to the victim.
V. ARGUMENTS FOR AND AGAINST THE APPLICATION OF THE NEW SCALE
In this final part of the article, based on the fact that the scale is applied indicatively, we will define the arguments for and against the application of Law 35/2015 to crimes committed before January 1, 2016, and judged thereafter.
- Arguments in favor
A) Full restitution of the victim
Supporters of the application of the new scale to the detriment of the old understand that the legislator's intention was to approve Law 35/2015 to remedy the deficiencies of the scale contained in RDL 8/2004 —with special importance on emerging damage and loss of profits among other things—, so the application of the previous scale, even if only indicative, would never achieve full restitution for the victim of a crime.
B) Application of the current law at the time of trial
Another argument in favor would be the fact that if the scale is applied indicatively, it must be that of the moment when the facts are judged, since a repealed civil rule could never be a guiding tool.
Arguments against
A) Retroactive application of an unfavorable rule One reason not to apply Law 35/2015 would be the fact that it would be retroactively applied in the criminal sphere, a rule against the accused, potentially violating the "non-retroactivity of sanctioning provisions unfavorable or restrictive of individual rights" contemplated in art. 9.3 of the Spanish Constitution.
B) Undue delays against the accused
In the case of the application of Law 35/2015 to cases before January 1, 2016, often with instructions extending several years until the oral trial, delays in the investigation and prosecution of cases would act against the accused, for example, for an offense committed in 2014, if it had been judged before December 31, 2015, the RDL 8/2004 would have been applied before the reform to calculate civil liability, a fact that would likely have led to a lower compensation, so delays in the investigation and prosecution of cases, affecting our judiciary in general, would act to the detriment of the accused.
C) Legal uncertainty for defenses.
In forensic practice, it is common for prosecutors to have filed their provisional qualification writings before the entry into force of Law 35/2015, but a trial is scheduled once the new scale is in force, so they may change the assessment of damage in the same courtroom, adapting it to the new scale, increasing the claimed civil liability, without this change —with considerable economic differences— being a reason for suspension due to "unexpected revelations or retractions" under article 746.6, or article 788.4 of the Criminal Procedure Law in the abbreviated procedure, or even if civil liability had been calculated with respect to the previous scale in the investigation, but once the oral trial is opened, the assessment is modified applying the new scale, which seriously harms the defense of the civil liability of the accused.
D) Detriments to insurance companies
The application of the new Law 35/2015 has one of its main detractors in insurance companies, given the obvious detriments it generates for this group, mainly in cases of reckless crimes, where professionals take out liability insurance policies covering possible indemnities in the criminal sphere, such as in the case of doctors.
a) Calculation of premiums and coverage limits
Premiums are calculated through actuarial calculations based on the risk of the policy taken out, risks at the time of the policy's subscription, not considering normative changes of such magnitude as the entry into force of Law 35/2015. In this regard, insurers complain that liability insurance policies from 10 years ago, for example, did not contemplate the risk of indemnities under the new scale, being common in cases of serious negligence, such as medical malpractice, for more than 10 years to pass from the occurrence of the accident until the trial, so policies from that time "cannot support" indemnities at current dates, a fact that often leads to compensation exceeding the maximum coverage limit of the incident, and the insured having to directly respond with their assets for the difference, creating a situation of total abandonment of the professional.
b) Setting reserves
Insurers' reserves form a fund used to deal with incidents and indemnities, aimed at ensuring the solvency of the company for future indemnities over a specified period of time. Indeed, anyone familiar with the insurance industry knows how important it is for companies to correctly reserve for an incident, a task where the work of the lawyer handling the procedure is crucial, who must warn of the risks of conviction, without it being appropriate to reserve above the risks, as the company would have a sum of money "stopped", and nor is it good to reserve below, since the reserve would not be able to cover the indemnity of the incident. At this point, insurers complain about the uncertainty generated by the fact that, for incidents before January 1, 2016, Law 35/2015 is applied, significantly affecting the reserves set for incidents, some of which occurred many years before.
VI. CONCLUSIONS
1st. Application of the traffic scale in an indicative manner in the criminal jurisdiction.
2nd. Percentage increase of the scale in cases of intentional acts.
3rd. Doubts about the application of Law 35/2015 to offenses prior to its entry into force, especially in cases of reckless offenses, where in addition to the difference in the commission of the offense without knowledge and will, with the lesser punitive reproach they could have, the interests of insurance companies often come into play, based on "purely economic criteria, obtained from a mathematical calculation", which could not foresee the increase applied generally by Law 35/2015, especially in incidents occurring years ago, with possible harm to the insured, who would have to personally face part of the indemnities.
Ignacio Montoro Iturbe-Ormaeche
Especialista en Dº Penal Económico y responsabilidad civil profesional
Fuente: DIARIO LA LEY
