Start of main content

Analysis of the possibility of bringing a civil action based on the same facts that a criminal court considers do not constitute a crime

| News | Criminal Law

Regarding 6th February Supreme Court Decision No. 84/2020

Our statutory law establishes the obligation to compensate those who, through fault or negligence, cause damage to a third party (Article 1902 of the Civil Code (LAW 1/1889)), as well as those who in the performance of their obligations cause damage (Article 1101 of the Civil Code (LAW 1/1889)). If, in addition, these damages are the result of the commission of a criminal offence, the author will also be obliged to compensate the injured party or offended party (articles 109 (LA LEY 3996/1995) and 116 of the Criminal Code (LAW 3996/1995)). In this second case, the victim or offended party may take his or her claim for compensation through the criminal procedure itself that is underway (Article 112 of the Law of Criminal Procedure (LAW 1/1882)), avoiding having to incur further costs arising from the initiation of separate civil proceedings. In other words, you will be able to exercise in the same procedure the criminal action and the civil action for damages. The simultaneous pursuit of the civil action in the criminal procedure is basically due to reasons of procedural economy, that is, to avoid the already congested Justice Administration from taking further steps that can be resolved in the same procedure, while saving the defendant the additional costs that would be involved in instituting a second judicial procedure. For this reason, the criminal conviction is binding on the civil judge regarding the civil liability derived from the crime, since the civil compensation request would have already been consumed and satisfied in the criminal action itself, as established by the Supreme Court in its 3rd February Decision 27/2012 (LAW 12822/2012).


However, what happens in those cases in which the criminal procedure in which the civil action is being exercised jointly culminates in a sentence of acquittal? Does the injured party of a harmful fact lose the right to be compensated because such a fact does not constitute a crime? The answer to this question is negative, although, as we will see below, with some nuances that the Supreme Court expounds in its recent February 6th Decision 84/2020 (LAW 3682/2020), in which it makes an interpretation of the scope of article 116 of our Law of Criminal Prosecution (LAW 1/1882). Said precept establishes: "The extinction of the criminal action does not entail the extinction of the civil action, unless the extinction comes from having declared by a final judgment that the fact that the civil action could have been born did not exist (...)" As it can be seen from the mentioned February 6th Judgment 84/2020, the general rule is that the criminal judgment of acquittal does not produce an exception of res judicata in the eventual civil procedure, which means that the offended or injured party can again formulate the claim for compensation in the framework of a subsequent civil procedure. It should be remembered that the civil liability derived from the crime is subordinated to the prior establishment of the existence of criminal liability, so that, in the absence of a conviction, the criminal court is prevented from making any pronouncement on the civil liability, which remains unjustified. 1 / 3 The Supreme Court understands that a criminal judgment of acquittal cannot prejudice the assessment of the facts in the civil order. In fact, it is not uncommon that, although the same facts do not constitute a criminal offence, they do constitute (a) damage or (b) a breach of an obligation that has caused damage or harm that does deserve to be compensated in the civil sphere. In these circumstances, the civil claim for compensation would not have been resolved by the criminal body having issued a judgment of acquittal, and, consequently, the right to effective judicial protection of the injured party would not have been satisfied with regard to that level of compensation. This circumstance would enable him to reproduce his claim in the civil jurisdiction. As quoted by the Supreme Court in its 31st January 2000 Judgment of (LAW 4120/2000), "conduct which is not punishable under criminal law does not imply that it cannot be considered a source of liability under civil law". Similarly, the High Court's 8th March Ruling 165/2017, (LAW 8619/2017) states "To this must be added what was affirmed by 17th May Judgment 383/2004, (LAW 116089/2004), that "the judgments of acquittal dictated in criminal proceedings for imprudence do not begin to allow the corresponding civil action to be brought for non-contractual fault because the latter has a wider range of application than the criminal, so that culpable acts that may give rise to the former cannot be included in the latter, Given its more restrictive nature due to its punitive nature, and in view of what has already been said in the judgments of this Chamber, in particular that of 10th March 1992, it is held that the same act may give rise to different legal aspects and assessments, some of which are strictly civil in nature, which determine the lack of identity of the cause of action in the respective jurisdictions, excluding the application of Article 2. 1252 of the Civil Code (LAW 1/1889)". Even more illustrative is the 30th September 2005 Supreme Court Decision No. 1061/2005, (LAW 13865/2005), when it says: "The acquittal of the facts that do not constitute a crime of fraud prevents the resolution of the civil claim in the criminal process and makes it necessary to bring the civil claim before the ordinary courts of that jurisdiction, since that responsibility is indeclinably subordinate to the criminal one, which arises from any crime". In the same way, the High Court also considers that the assessment that the criminal body might have made in the sentence of acquittal would not be binding on the civil court either, insofar as our Courts and Tribunals are governed by principles of freedom and independence when assessing the evidence presented to them by the parties, as long as it conforms to the maxims of logic, reason and healthy criticism, and is not constrained by the interpretation made by another judicial body (in this case, the criminal court). In the same vein, the Supreme Court understands that an acquittal cannot prejudice the assessment of the facts by a civil court (see Supreme Court Ruling No. 537/2013, 14th January 2014 (LAW1/2014)).

  1. Exception to the general rule: acquittals that display the effects of res judicata and prevent the subsequent excercising of civil actions

In contrast to all of the above, the Supreme Court considers that acquittals (and consequently, we can affirm that free dismissal orders) will only have the effect of res judicata, and will therefore prevent the civil court from ruling on a subsequent request for compensation and evaluating the evidence on which it is based: (i) where it is found that the event which would have given rise to the civil liability did not exist or (ii) where it is found that a person was not the author of the event which is the subject of the criminal proceedings. With regard to this second exception, it goes without saying that Supreme Court judgement No. 84/2020 of 6th February (Act No. 3682/2020), citing other previous rulings, ultimately recognized that the absence of proof of authorship in criminal proceedings would not constitute a genuine example of res judicata either in cases where the criminal court based the absence of authorship (and therefore the acquittal) in the absence of evidence, and ultimately, in application of the principle in dubio pro reo, since it understands that the rigorism and degree of certainty required for a conviction could justify the acquittal of a person 2 / 3 of the commission of a criminal offense, and yet, condemn it civilly to repair the damage it has caused.


In conclusion, a judgment of acquittal (or an order of dismissal) handed down in the context of criminal proceedings does not prevent a civil action based on the same facts from being brought subsequently, unless the aforementioned judgment (or order) states that such facts never existed. In such cases in which a judgment of acquittal is issued, the criminal court loses jurisdiction over the civil action, which remains unjustified, allowing the holder to bring the action before the competent civil bodies.

You can see the article in Diario La Ley

End of main content