Blurred borders in Spanish tort and crime

Introduction The dominant development in substantive criminal law has been the disappearance of any clearly definable line between civil and criminal law. This blurring of the border between tort and crime results not only in injustice, but ultimately weakens the efficacy of criminal law as an instrument of social control. Some have attempted to define the proper sphere of the criminal law by resorting to how its purposes and methods differ from tort law. Although it is easy to identify distinguishing characteristics of the criminal law – the greater role of intent, the relative unimportance of actual harm to the victim, the special character of incarceration as a sanction and the criminal law's greater reliance on public enforcement – none of these have been ultimately decisive in defining criminal law, or separating it from tort law. While this seems to be happening in many modern legal systems, the Spanish legal system positively fosters the eradication of any clear divide between tort and crime. The fact that victims can directly intervene as private prosecutors (even against the position of the public prosecutor) and that civil damages are awarded in the criminal judgment by the criminal court certainly makes it tougher to argue in practice that there is a foundational difference between tort and crime. Because of the peculiar structure of the Spanish legal system, many cases that would traditionally be considered torts end up in the criminal jurisdiction. Therefore, as we shall see below, whether a specific wrongdoing is considered a crime or a tort depends to a great extent on the decision by the victim to press charges and to be active in the criminal procedure. Also, the fact that not only the victim him/herself can initiate criminal proceedings, but any third party that is affected by the wrongdoing, increases the possibility of dealing with civil wrongdoings as part of the criminal justice system. One of the most famous cases in Spanish criminal law, the Colza Oil case, shows how the distinction between tort and crime works, especially in class action cases. The defendants commercialised industrial oil as regular oil for human consumption. Dozens of people died, hundreds suffered severe injuries and thousands were harmed (with more not yet fully diagnosed).