The Sierra Bermeja (Malaga) fire, which has already burned 10,000 hectares and killed a firefighter, could have been caused intentionally. Although it is still in the investigation phase, the Environmental Prosecutor’s Office has indicated in a statement that the inquiries carried out “may point to an intentional etiology.” At the moment, the investigations are being carried out by the Seprona team in Malaga and the Investigating Court of Guardia de Ronda.
If it is proven that it is a fire with risk to the life or physical integrity of the people, the possible perpetrator could face the maximum penalty of 20 years in prison that is included in article 351 of the Penal Code. Normally, the public prosecution asks for between 15 and 20 years in prison depending on the minor entity of the danger caused, but “this can be a good case of 20 years,” explains Fernando Germán Benítez, delegate for the Environment of the Malaga Prosecutor’s Office.
And it is that, in addition to ending the life of a worker of the extinguishing teams, the fire has injured two other people and has forced the eviction of more than a thousand neighbors, in addition to the enormous environmental damage caused.
Therefore, the question arises as to whether the possible perpetrator, if the suspicions are confirmed, could also be charged with a homicide by virtue of what is known as a crime contest. This situation occurs when the same unlawful conduct leads to the conviction of several different penalties.
In the prosecutor’s opinion, the death of a firefighter putting out a fire would not be attributable to who caused it because it is very difficult to prove that he had in mind that someone was going to die. “You cannot prove it in court,” he points out, and in the absence of evidence, no one can be convicted.
Precisely, Germán Benítez is based on the precedent of the La Riba de Saelices fire (Guadalajara), in which a fire brigade was killed. The Provincial Court only sentenced the hiker who was in charge of preparing the food on the barbecue that caused the fire, who was sentenced to two years in prison and ten million euros in compensation. However, the investigating judge had attributed different crimes (forest fire due to serious recklessness, murder due to recklessness and crime against the rights of workers) to the 20 accused (senior officials of the Board, 112 staff, and the mayor of the municipality, among others). The only person responsible was convicted of a crime of forest fire committed by gross negligence.
The Supreme Court confirmed the sentence in May 2013. For the high court, the convicted person violated “the position of guarantor that is imposed on anyone who is the creator of a source of danger”. It is reckless, he concluded, “to make a fire in the countryside, in the month of July, at a time of drought, with high temperatures and low humidity.”
Crime of homicide
But as often happens in law, everything is debatable. Pablo Lightowler-Stahlberg, criminal lawyer at Oliva-Ayala Abogados, explains that, if it is finally determined that the fire was intentional, after the death of the firefighter, one could speak not of “reckless homicide”, but of a crime of “intentional homicide for concurring eventual fraud ”.
The first is committed when the death of another person is caused by the irresponsibility of the subject who infringes the duty of care that was required of him, as can occur in traffic accidents. On the contrary, “eventual fraud occurs when a person, aware of the damage or the result that their actions may cause, assumes it as possible and, despite this, acts. That is, in this case, despite the fact that the possible arsonist does not seek the death of anyone, the mere fact of causing a fire carries a high risk of someone dying when hit by fire, so that homicide is not reckless but willful, and is punished as such, “argues the lawyer. The Penal Code punishes this crime with a prison sentence of ten to fifteen years.
In any case, the author of a fire could be obliged to civilly compensate the heirs of the person who dies by putting out the flames, even if the death is not criminally imputed, explains the Environment delegate of the Malaga Prosecutor’s Office. In addition, “the costs of extinguishing the fire, the damage caused to town halls, entities and individuals” or those derived from the “contamination of the aquifers” are valued.
Unfortunately, the large number of fires produced in Spain has given rise to a vast jurisprudence. Some cases are resolved with small penalties or even acquittal if the arsonist’s psychic disturbance is proven.
For example, in the fire caused in the summer of 2017 in the town of Mosteiros (León) by setting fire to some bushes without adequate protection measures. The incident mobilized land and air means of extinction of the Junta de Castilla y León and burned 34.7 hectares of scrub and oak. The Criminal Court number 1 of Ponferrada acquitted the confessed perpetrator of the disaster in a judgment of October 5, 2020, in application of the “complete defense of mental anomaly”. A forensic medical report confirmed that the defendant had a degree of intellectual disability of 66%. This circumstance, the judge concluded, determined that, at the time of the events, “his intellectual and volitional powers were completely diminished, and therefore he was not criminally responsible.”
In other cases, such as the fire caused by the remains of a barbecue that burned almost 2,400 hectares in the south west of Mallorca and forced more than 700 people to evacuate from their homes, the sentence was reduced to two years, six months and one day in prison, plus the corresponding fine. The Provincial Court of the Balearic Islands applied (sentence of January 2020) the incomplete defense of psychic anomaly to the accused, as he suffered from a “long-standing paranoid-type schizophrenic psychosis.”
Forest fires are often difficult to clarify, which is why they are currently the responsibility of professional judges and not of the jury court, as established by law since 1995. “In view of the inherent complexity of this type of crime, and the need to carry out an investigation as agile as possible, it has been deemed convenient that the investigation and prosecution be entrusted to professional courts ”, justifies the preamble of the Penal Code after a modification operated in 2015.
63 convictions in 2020
Precisely, the prosecution started in 2007 a project to study the psychosocial profile of the forest arsonist led by a large scientific team. The study is fed by computerized data from questionnaires completed by the agents investigating the incident. The idea is that the application or predictive model, based on artificial intelligence, works as a clue to use during the investigations.
And it is that, according to the data provided by the different police forces, during 2020 a total of 437 people were arrested or investigated, which has meant a significant decrease (14.81%) with respect to the previous balance, in which they were counted 513 people arrested or investigated, the 2021 Prosecutor’s Report includes. It seems a logical evolution considering the significant decrease in claims in the year of the pandemic, motivated, in large part, by the declaration of the state of alarm. “This fact makes clear the footprint of man in the production of forest fires.”
Once again, the most frequent cause of forest fires in Spain in 2020, “as it has been happening year after year,” emphasizes the Memory of the Prosecutor’s Office, were the burning of both forest or agricultural residues and residues and regeneration of grass.
Regarding accidents with intentional origin, in 2020 there was a notable decrease in fires caused by arsonists (19.39%), the first cause in previous years. Motivated, in part, by the general confinement between the months of March and May. However, the number of acts of vandalism or revenge increased. In 2020 they were placed on a par with those caused by disturbed or arsonists (19.39%), thus sharing the third dishonorable place among the causes of the fires.
All these actions resulted in a total of 63 convictions for forest fire, 73 less than in 2019, and 20 acquittals.