The Supreme recalls that there is no simulation of a crime if the police report does not reach the court

A false complaint made at the police station is not a crime if the police report does not reach the court or should never have reached the hands of a judge. This has been recalled by the Supreme Court in a sentence in which it acquits a couple who falsely reported to the Police in Malaga bag theft of the mother of one of them to help him get a new passport. The judges recall that, since the 2015 legal reform, you can only be sentenced for simulation of a crime if the false complaint finally sets the judicial machinery in motion.

The judges, according to the resolution to which has had access, have studied the case of a foreign marriage that in the summer of 2016 was in Malaga and that he reported by phone that the mother of one of them, also a foreigner, had been the victim of a robbery. According to her version, some strangers had stolen the bag of the mother of one of them, an elderly woman with Alzheimer's disease. The robbery, according to the Justice, had not existed and the objective of the marriage was to be able to obtain a passport for the woman without her knowing anything about the maneuver.

The Police launched some investigative proceedings under the number 14797/2016 but sent the case to the police station file and the false robbery, therefore, never reached the hands of a judge. At first, both a criminal court in Malaga and the Provincial Court understood that the couple had committed a simulation of a crime and the judges imposed fines of 900 euros on them with the approval of the Prosecutor's Office.

Now it has been the criminal court of the supreme court, with Javier Hernández as rapporteur, which has acquitted both, recalling the doctrine that the high court has maintained for several years: there is no simulation of a crime if the complaint has not set in motion the machinery of the court. Nor is it simulation of a crime if, despite having caused the opening of judicial proceedings, the case should never have left the police station.

The Supreme Court explains that the turning point is in the reform of the Criminal Procedure Law of 2015. That October the new rule established that the Police, when they have an alleged crime on their hands without a known perpetrator, must keep the report in case the Prosecutor's Office or the Justice require it at some point, but without informing the courts except in exceptional cases: whether it is a murder, a crime against physical integrity, a rape or a crime of corruption.

For this reason, if a complaint made at a police station without identifying possible perpetrators "is legally predestined not to reach a judicial body", that false complaint "lacks suitability that harms the legal good", recalls the Supreme Court. That legal right, they add, is the proper functioning of Justice. Complaints such as the one presented by this couple in Malaga, without pointing to any perpetrator of the robbery, "will not be sent to the Investigating Court" and therefore are not a simulation of a crime.

The statistics of the Registry of Prisoners of the Ministry of Justice, exposed by the General Council of the Judiciary on its website, reveal that in 2019 in Spain there were a total of 1,821 people convicted of simulating crimes. Of that total, 1,099 were men and 722 women. There were another 434 people convicted of false reporting, a crime that is applied when, in addition to reporting a crime that did not exist, a specific person is accused.

The ruling of the Supreme Court on this false robbery in Malaga establishes a doctrine that has been maintained for at least two years. In 2020 the same room acquitted a woman who in BarcelonaIn December 2016, he reported to the Mossos de L'Eixample police station that two hooded foreign men had stolen his cell phone in the Badal metro. She even expanded on the complaint a few weeks later to explain that she, moreover, had been thrown to the ground during the robbery.

This complaint did reach a court in Barcelona, ​​which filed the case for lack of a known perpetrator, and the author of the complaint ended up on the bench and sentenced to pay a fine of 1,440 euros for simulating a crime. But she was acquitted by the Barcelona Court and later by the Supreme Court, although her complaint had led to the opening of proceedings in court. The reason is that the police report should never have reached the court.

"They are proceedings condemned not to appear in an Investigating Court and, therefore, incapable of provoking procedural action directly linked to the false denounced fact," Judge Antonio del Moral said at the time. He even pointed out that the Mossos d'Esquadra were the ones that should have stopped the report: "If it ended up in an Investigating Court it was something unforeseeable and not attributable to the complainant," said the Supreme Court. The Mossos sent the report to the court when they already knew that the robbery had not occurred and what they wanted to investigate was the alleged simulation of the crime.

This Barcelona case is one of those used by the Supreme Court to now acquit this couple who denounced a false robbery in Malaga in 2016. The judges uphold this point of the appeal although they flatly reject all the others in which the now acquitted alleged that the robbery had been real or that they had called the police station following the instructions of the mother of one of them, who had Alzheimer's.

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