The Supreme Court sentences a man for three years for plundering the Celtiberian site in Zaragoza

Organ: Supreme Court.Criminal Room

Headquarters: Madrid

Section 1

Date: 06/19/2020

Number of resource: 3577/2018

Resolution number: 335/2010

Procedure: Cassation resource

Speaker: Antonio Del Moral Garcia

Type of Resolution: Judgment

Supreme Court

Criminal Room

JUDGMENT

In Madrid, June 19, 2020.

This Chamber has seen the appeals accumulated under No. 3577/2018 filed by Tomás represented by the attorney Ms. Beatriz Sánchez Veragómez-Trelles and under the lawyer of Mr. Ignacio Ayala Gómez and Javier Sánchez Vera Gómez-Trellez ; and Carlos María represented the attorney Ms. Lucia Sánchez Nieto and under the lawyer of Mr. Javier Estrada Castillo against Judgment issued by Section 6 of the Provincial Court of Zaragoza dated July 16, 2018, and relapsed in the Previous proceedings 288/2018 of the Court of 1st Instance and Instruction No. 2 of the Almunia de Doña Gocina (Roll 53/2017), in a case followed against the appellants for a crime of intentional material damage on terrestrial archaeological site, bleaching of capitals, theft and smuggling. The City of Aranda de Moncayo represented by the attorney D. José Antonio Beneit Martínez and under the lawyer of Mr. Ángel Trivez Rino and the Aragon Government represented by the lawyer of the Autonomous Community of José Luis Gay Martí. The Fiscal Ministry has also been part.

The Hon has been speaker.Mr. Antonio del Moral García.

Background in fact

First.- The Court of Instruction no.2 of Almunia de Doña Godina (Zaragoza) instructed PA No. 288/13, against Carlos María, for laundering crimes typified in article 301-1. of the current Criminal Code (for possession and acquisition of goods knowing that they had theirorigin in a criminal action) and intentional damage to goods of historical value and in an archaeological site, typified in article 323-2. of the Criminal Code and Tomás for a crime of reception typified in article 301-1.º Code Codevalid.

Once concluded, he sent it to the Provincial Court of Zaragoza (Sixth Section) that on July 16, 2018 issued a sentence that contains the following proven facts:

"First.- In the" Aranda River region "there was a celtibase city called" Arátikos ", which was erected in the Iron Age, between 4,000 and 800 before Christ and was destroyed by the Army ofRome between 74 and 72 before Christ, along with the city of Numancia, on the occasion of the Serorian wars.

The helmet of that ancient city settled on a hill called Cerro de Castejón, which still dominates the town of Aranda del Moncayo, belonging to the province of Zaragoza.

Around that ancient city of Aratikos, was its necropolis, today appeared next to the path of Villaborja.

The defendant, Carlos María, was aware of the existence of the expressed Celtibean city and his next necropolis and therefore, even being a native of Morata de Jalón (Zaragoza) transferred his home to Illueca (Zaragoza) and dedicated himself exclusively and dedicated himself exclusively andSystematic since the late 80s of the last 20th century to dig in that necropolis, making holes, ditches and finally through an excavator with which it extracted a large amount of land that covered the expressed necropolis and took it to another part, to screen it inSearch for Celtiberian effects and for the subsequent trash of the soil and subsoil more immediate, with metal detectors and in all cases, with notorious success, giving place to hide in its home in Illueca (Zaragoza) an extraordinary collection of metal piecesCeltibases, corresponding to the Iron Age.

In that trace and plungal work, the defendant, Carlos María, had interruption, until the day 13-2-2013, because on that day 13-2-2013 Mrs. Instruction Judge No. two of the Almunia de Doña Godina (Zaragoza) Incariated previous proceedings No. 181/2013, in which he immediately decreed the entrance and registration in the two homes of the now accused Carlos María a domicile was in the town of Illueca (Zaragoza) on the street 000 No. Num000.The second domicile of the defendant Carlos María, was next to the Pantano de Maidevera, in the municipality of Aranda del Moncayo (Zaragoza) and was a wooden cabin located in the so -called area 000 to a kilometer and a half away from the Cerro de Castejón.

This instruction judge No. two of the Almunia de Godina also decreed the entrance and registration in a medium recreation yacht moored to the ground owned by the aforementioned accused and very close to the wooden cabin.

These entrances and records were made that same day, 13-2-2013, and with that a large amount of metallic effects of Aratikos were found, corresponding to the period between the 4,000 and 72 before Christ.

Many of these metal effects still had remains of wet earth and herbs, adhered to them, since their extraction of Anatikos archaeological site was very recent.

At the entrance and registration practiced by the Judicial Commission on 13-2-2013 at the home of Carlos María, located on the 5th Num000 street in the town of Illueca (Zaragoza), the Judicial Commission found a huge amount of effects of effectsCeltiberian archaeological, extraordinary value and historical-art and cultural interest, as well as a microscope to calibrate and study them and chemicals to clean and restore metal archaeological remains.

These archaeological metal effects were the following:

1..- Five elements belonging to Celtiberous War Hoods and corresponding to ridges for ridges.

2..- Nasal protector of a Celtiberian helmet.

3..- Carrillera of a Celtiberian helmet.

4..- Two fragments of the edge of the heel of a Celtiberian helmet.

All these remains of Celtiberian helmets are of the Hispanic-Calcidic variant, dated between the 5th centuries before Christ, in the case of pieces of exceptional scientific, historical and cultural value, of Celtibera production with its own technical and decorative morphological characteristics, original Hispanic variant of the GrecoCalcidico helmets and with an exclusive origin and distribution in the Iberian Peninsula and specifically from the site of the Celtibean city of Aratikos located today in the municipality of Aranda del Moncayo (Zaragoza).

The helmets of the archaeological site of Aranda del Moncayo are unique in the world, of which only twenty of them are dated and documented, which are currently in the "Romichegermaniche Central Museum de Mainz" (Germany).

The study of these Hispanic-Calcidicist helmets, their morphology and characteristics is essential to know the military, social and technical behaviors of the time.

In the site of the necropolis of Aratikos to which these helmets belonged, they fulfilled a funeral and ritual function, whose identification and study with scientific criteria, would provide very relevant information about religion, society, economy, technology and war in the Celtiberian world.

5th.- A fragment of Celtibean sword sheath.

6..- A fragment of the leaf of a Celtibean sword.

7..- Three spears and three fragments of Celtibera spear.

8.- Eight pieces corresponding to shell records.

9th.- Honda projectiles.

10.º.- BRAYERS, EARRINGS, Rings, Bells, and Bronze Fibulas.

11.º.- 56 Iberian and Celtibean currencies, 26 of which were identified by their Celtibean Cecas Issueros (4 of Aratic), 87 coins of the Republican Rome, 168 currencies corresponding to the Imperial Rome, 60 medieval coins and 888 coins of The modern age.

12..- Scissors, hunting supplies and collection of Celtiberian origin.

13..- Four medieval writing stamps.

14..- Roman union work (given and tetrador, exvotes and galic symbols).

15.º- A part of a Celtibero Bronze Choir Disco (identified as H.I: 4005) whose other part (identified as 1+11-1939) was found in the registry made by the Civil Guard at home located in Alagón del del AlagónAnother defendant: Thomas.

All these effects have been expected in 42,639'21 euros.

Second.- Obtaining the effects that the defendant Carlos María was plundering, meant the destruction of the archaeological context of the deposit, preventing specialists from knowing fundamental data that could have modified the information and knowledge of the pre-Roman peoples of the Iberian Peninsula.

Almost all the pieces intervened to the defendant, Carlos María, were pre -Roman celtibase pieces, of exceptional scientific, historical and cultural value.

The place that the prosecuted defendant had extracted them was from the ancient necropolis of Aratikos, municipality of Aranda del Moncayo, a place declared on 16-4-2016, as an archaeological zone.Prior to 16-4-2016 they were part of the Aragonese Cultural Heritage Information System (S.L.P.C.) such a interesting one of the 57 deposits that this document collected.The archaeological letter collected both the location and the description and access to such a deposit.

The defendant Carlos María since the late 1980"Garret Aemricana", "Garret Martera Hierra", Fisher brand and brand "Garret Depp multiples" and five metal detector dishes (replacement), all of which was found in the wooden cabin that Carlos María, surrounded by the swamp ofMaidevera in the area 000.

This metal detector material was used by the accused a long time before using heavy machinery on the necropolis of Aratikos on 24-11-1993 and also later when he had already extracted a thick layer of earth from several tons that knew he covered the old necropolisof that old city.

With this extraction of land with a backhoe, the defendant, Carlos María, even affected the Celtibera wall even existing on the hill of Castejón and two terraces of the habitat.

These extractions with the backhoe were paralyzed the next day, 25-11-1993, when D. Esteban, councilor of the City of Aranda de Moncayo, warned those irregular extractions of land, ordered by the accused and that were loaded in a truck to take itTo an unknown place, where Carlos María was screening that land in search of celtiberous metal effects, and once found he took them to their home in Illueca, where he cleaned them with various chemicals and finally examined them with the microscope, which he had there,To evaluate them.

THIRD.- The defendant, Carlos María, was making his particular accumulation of Celtiberian metal effects, with a view to his subsequent sale remaining part of the pieces and another indeterminate part was selling them to third parties especially to a neighbor of Alagon (Zaragoza), who is also the defendant, Tomás, who had them stored, some in his work ship, located in Utebo (Zaragoza) on Lithuana Street No. 2, Polygon La Casaza, others at his home in Alagón, in theCalle001 No. Num001 and the remaining ones at the home of his son in the city of Zaragoza, on the street002 No. Num002.

The defendant, Carlos María, was thus giving part of the Celtibean pieces he found, making his particular and exclusive means of life, since other means were not known.

The registration made on 13-2-2013, by the Civil Guard of the Seprona, also extended to the vehicle owned by the aforementioned accused that was a Ford Orion tourism, Clx model, registration R -....- IR, inside whoseThe Civil Guard found a hoe with Earth, a metal detector of the Minenelab brand, another detector of the Adventis 6362 brand with its 27 'centimeter detection dish and purchase invoice of it dated 26-7-2003, by850 euros and another Metal detector of the Adventis brand with its corresponding dish and with its corresponding purchase invoice with billing date 12-6-2006, for an amount of 249.40 euros.

The archaeological pieces seized of the defendant Carlos María, at his home in Illueca (Zaragoza) and in his wooden cabin located in Et Paraje000, surrounded by the Pantano de Maidevera, have been expected expensively in 42,639'31 euros, and this leaving its value separatelyCultural and archaeological scientific historical, which is exceptional.

Fourth.- The defendant, Carlos María, initiated the breakage of the necropolis of Aratikos, on 24-11-1993, using as tools those of a backhoe, with the blade in areas of ascending trend and with the horizontal flattener plate to performThe expanation and leveling of the plain terrain, thereby causing the rupture of the bases of a wall of the ancient city of Aratikos, rupture of adobe parameters, pavements and in the losies and thereby causing the destruction of 637'45 square meters ofThat site, in three zones, removing 371'53 cubic meters of sediment and 39'50 cubic meters of archaeological levels.

All this caused an important alteration of the site that in some areas was merely superficial (50 centimeters), but in other areas that excavation and extraction of land reached a meter of thickness, leaving the remains of constructions of the Celtiberian era in the surfaceand abundant very destroyed iron fragments.

This excavation and extraction of land was carried out especially the accused of the Celtibean city of Aratikos, in its area of greatest archaeological and cultural interest that was its necropolis, a space for ritual use where the largest number of celtibases of high high celtibases of highValue in the illicit market of antiques.

The value of the damage caused by the defendant, Carlos María, on the necropolis of Aratikos attached to Cerro de Castejón and his extensive hillside have already been appraised in the amount of 106,825'50 euros.

FIFTH.- But the most surprising findings with the subsequent plunder, were obtainedIn the necropolis of the archaeological site of Cerro de Castejón (Castejón El Romeral), then taking them to the defendant Tomás, so that he would restore them welding them in whatever it was precise, because it was very understood in Celtiberian weapons and had a store on Crown Street ofAragon of this city of Zaragoza.

Indeed, the defendant Carlos María, came to dig and subsequently sell once shreddly restored by Tomás, 18 Hispanic-Calcidic Helmets, from the site of Aratikos in Aranda del Moncayo.These helmets were illegally exported abroad by the defendant, in collusion with the antiquarian Ezechies, resident in Switzerland (num003 direction 000 zürich), against whom the present cause is not directed for having died in 1992. Ezekias acquired the helmets of the defendant Carlos María withKnowledge both of its illicit origin and with an exclusively economic mobile in both.Ezekias, in turn, was in charge of taking them out of Spain, taking advantage of their Spanish origin and knowing that all these helmets came from the field of Aranda de Moncayo, being their intention to sell them to foreign collectors, mainly in Germany, Switzerland, France and KingdomUnited.

En fecha 05.05.1990 Ezequias ofreció a la venta al museo "Römisch-Germanisches-Zentralmuseum" de Mainz (Alemania) dos cascos, por 60.000 marcos. Tal Múseo desestimó la compra, porque se trataba de dos cascos celtíberos hispano calcidicos que se habían deteriorado al restaurarlos Tomás de forma inadecuada con un soplete. No obstante, el museo consiguió restaurar uno de ellos y realizar un informe significativo sobre el mismo. El casco restaurado se devolvió a Ezequias el día 12-10.1990 y el segundo casco le fue devuelto el 07.12.1990. En la visita realizada por Ezequias el día 12.10.1990 al Römisch-Germanisches-Zentralmuseum de Mainz (Alemania), el anticuario reveló al Dr. Imanol el lugar exacto del hallazgo de esos dos cascos el cual era Aranda del Moncayo. A continuación Ezequias vendió dos de esos cascos en Londres el 03.10.1990 en la subasta de Philips West Two, Antiquities & Tribal y otro que posteriormente aparecería en venta en Hong Kong. El resto de cascos (15) comenzó un periplo en el que fueron ofrecidos en venta al RömischGermanischesZentralmuseum de Mainz (Alemania), que desestimó su compra, así como su restauración y reaccionó comunicando la circulación comercial de dicho conjunto a la Interpol.

Ezekias finally sold the remaining fifteen helmets to the German magnate of Austrian origin Joaquín in Berlin, who was considered the largest private collector of ancient weapons around the world, which incorporated the helmets into his collection.

There they remained until the death of Joaquín in Berlin in 2001. The fifteen helmets were restored in Berlin by Mr. Maximino and then exposed in the private museum of Joaquín.After their death, the heirs of Joaquín, sold or triedTwo more on October 7, 2009 (these six helmets are currently at the Mougins Classical Museum of France, Musee Dart Classique to Mougins 32, Rue Commandeur, 06250 Vieux Village de Mougins).

On April 12, 2010, two other helmets in Historical Hermann were auctioned and three more were sold through the Christie's auction house on October 25, 2013. On June 28, 2012 Jose Ángel de Hermann Historichelmets to the heirs of Joaquín.

In 2000, the Spanish Ministry of Culture formed a commission with the National Archaeological Museum to recover the helmets, without achieving, nor the return, nor the acquisition of the whole.Thus, on the occasion of the auction on the 15.05,2003 of objects of Hispanic origin in the Historical Hermann room of Munich, the CNP Historical Heritage Research Brigade requested the Interpol-Wiesbaden that determined the origin that determined the origin that determined the origin that determined the origin that determined the origino Origin of Hispanic archaeological pieces, date of extraction and documentation related to the export or importation of the helmets, resulting in their efforts.

Finally, in April 2008, DR: Juan Ramón, denounced the Interpol and the German and Spanish authorities, the appearance in a catalog of the Historical Hermann House of two of the Helmets of the Lot de Aranda de Moncayo. The Romisch Germanische Zentraimuseüm de Maine (RGZM) communicated to the Ministry of Culture the auction on 11.04,2008 of 40 pieces of doubtful origin in the Historical Hermann Auction Room of Munich, of which three of these pieces corresponded to two Hispanic helmets Calcidics and a Celtiberian from the Aranda of Moncayo. Therefore, on 10.06,2008, the CNP Historical Heritage Brigade asked the Madrid Guard Court to issue an International Rogatory Commission. to the German authorities to obtain the restitution of the three Hispanic-Calcidic helmets from Spain. Dated 23.06.2008 The Court of Instruction No. 35 on DP 2942/2008 requested the results of the efforts of the efforts made from the Historical Heritage Brigade.

On 24.02.2009 the Historical Heritage Brigade through Interpol Wiesbaden, requested from the German authorities to carry out the efforts aimed at the identification of the helmets, of the collector Joaquín, the identity of the antiquarian that bought the helmets and the documentation concerningto their origin and export or import authorization.

On 25.02.2009 the Historical Heritage Brigade communicated to Court No. 35 of Madrid the efforts requested at Interpol and dated 29.06.2009 the Historical Heritage Brigade communicated to said Court that the German judicial authorities suspended and filed the procedure 11192/2010 filed by the Munich Prosecutor's Office for reception, for not contributing the Spanish State any document that will justify its property of the three helmets.On 19.01.2011, the Historical Heritage Brigade communicated to the General Sub -Directorate for the Protection of Historical Heritage that the Court of Instruction No. 35 of Madrid provisionally filed the actions DP 2942/2008.

Finally, in April 2008, Dr. Juan Ramón, denounced the Interpol and the German and Spanish authorities, the appearance in a catalog of the Historical Hermann House of two of the Helmets of the Lot de Aranda del Moncayo.

SIXTH.- The discovery of these twenty Spanish-Calcidic warrior helmets in the late 1989Paraje "Paraje000", also close to the Maidevera reservoir.For this, the defendant Carlos María, in the company of another person who has not been able to be identified, appeared at the City of Aranda del Moncayo and verbally notified that he was going to perform an urbanization of prefabricated houses, asking for a license for it which was grantedprovisionally.With such a false pretext, Carlos María, built only a wooden pilot cabin on the plot of his property in the "Paraje000" area and made the purchase of other thirteen plots, on the archaeological zone and although as is logical he never built anything about anything aboutthey.

The defendant, Carlos María, on 24-11-1993 began to make extractions of land and raidto the wall and at least two habitat terraces.These works were paralyzed the next day, 25-1993, by the City of Aranda del MoncayHe loaded land in a truck.

In October and early November 1993, Dr. Zaida, archaeologist at the University of Bordeaux, had performed archaeological surveys, having verified the existence of land moved outside the deposit and that is what put on guard thecited councilor of Aranda del Moncayo.

However, this paralysis of heavy machinery, the defendant Carlos María, continued to manually perform the excavation and extraction of sediments in a massive way and within the perimeter of the deposit, especially in an area of 600 square meters.To do this, Carlos María, used metal detectors, manual tools, in persistent and systematic action that lasted until the beginning of this procedure, on 13-2-2013, and that meant the razing and destruction of most of the Castejón I depositThe Romeral of Aranda de Moncayo and especially its necropolis.

In this way the defendant made the extraction of an extraordinary and imposing set of Celtibean iron weapons, among which was the lot of the eighteen Celtiberian helmets, various elements of panoply, defensive, bronze coins with Iberian characters, Roman coins,as well as arrow tips, fibulars, work supplies and many effects, all, of incalculable archaeological value and great economic value and with the intention of selling it to third parties, with knowledge that the most valuable pieces could leave Spain because theI was going to sell to third parties.

The defendant Carlos María continued to perform searches, looting and spoils of the archaeological site of the Celtibean city of Aratikos (or Arratis), T.M. from Aranda de Moncayo (Zaragoza) until 02-13-2013, so that he practiced the record in his homes in Illueca and in the area of ​​Paraje000 wood, a multitude of celtiberic effects of extraordinary value and archaeological interest were intervened and Cultural, as well as a Garret 11902 metal detector, a Garret American brand metal detector, a Garret Master Hunter metal detector, a Fisher brand metal detector, and another metal detector of Garret Depp Multipler metals of spare metals. In the registry made in their vehicle usually used by the defendant Ford Orion Clx registration R -....- Go on 02-13-2013, they found an earth hoe, a Minenelab brand metal detector, a model detector model Model Adventis 6366 with its 27.5 cm detection dish and purchase invoice dated 26.07.2003 for 850 euros, an Adventis metal detector with its corresponding plate with purchase invoice with billing date 12.06.2006 per amount of 249, 40 euros (folios 495 to 503).

SEVENTH.- It should be noted that between the V and IV centuries before Christ, the excavated zone hosted the necropolis of the city of Aratikos, which did not completely occupy the area.In the FL century before Christ, as a consequence of urban development, the city grew by building its inhabitants on the same necropolis.

After the destruction of Aratikos for Troops of Rome between 74 and 72 before Christ, and subsequent abandonment of it, the hillside was put into cultivation, the archaeological remains were covered up to a depth of two meters. At the end of the 80s, the defendant using metal detector located the remains of the necropolis, however, it was not until 24-11-1993, when the accused animated by the continuous findings, including the eighteen Celtiberian helmets, He used the backhoe machine to eliminate stratigraphy and sedimentary remains that covered the necropolis. Once the area was clear and broken, the defendant located the metal deposits with metal detectors, proceeding to their predation and plunder, chopping and ditching. Subsequently, the defendant filled the graves, with the same land, and with broken ceramic fragments, so that the fact was not recognizable. However, the terrera resulting from the discharge of the evacuated lands and sediments has not been located as a result of the plunder, not being in the vicinity, since it was evacuated with a truck to a point without locating so that it proceeds to the search for archaeological elements and pieces small.

The systematic dispossession made by the defendant Carlos María, on the Celtiberian site of Aranda del Moncayo, significantly affected multiple Celtiberic archaeological effects of extraordinary value and archaeological and cultural interest, including eighteen Hispanic Histos Hispanocalcidicidos, from reservoir.

All the helmets, extracted and looted from the Moncayo Aranda site by the defendant Carlos María, were unique in the world, with an unknown form so far.The helmets were arranged in the site with a funeral and ritual meaning, some intentionally crushed, by the Celtiberian inhabitants, others in rock cracks, others stacked inside containers within an outstanding celtiberic oppidum as a ritual deposit, which could have beenstudied as such by archaeologists with scientific criteria, would have provided very relevant information about religion, society, economy, technology and war in the Celtiberian world.

Illegal extraction meant the destruction of its archaeological context, depriving of fundamental data that could have modified the information and knowledge of the pre -Roman peoples, in the case of pieces of scientific, historical, cultural, exceptional value.

The Castejón 1-EI Romeral Site of Aranda de Moncayo (Zaragoza) was declared a Cultural Interest (BIC), on April 16, 2016, in the Category of Archaeological Zone.Previously, it was part of the Aragonese Cultural Heritage Information System SIPCA, a document to management of cultural goods of the Autonomous Community of Aragon, being one of the most interesting of the 57 that collected such a document.

The archaeological letter collected the location of said archaeological site, its access, and a description of it.

During the period affected by the looting, only two official excavation permits were granted, specifically in 1993 and 1994 for Dr. Zaida, Professor of the Institut Ausonius CNRS University Bourdeaux and Natural of Aranda de Moncayo, who found the existence of clandestine excavations, pointing out that Castejón I was the most harmed. The whole extends over more than 10 hectares along the hillside of the hill called Cerro del Castejón and has cultural and historical values ​​that justify its statement as BIC. In fact, its great dimensions, its monumentality and its location allow us to conclude that on such a site the capital of the entire Valley of the Aranda was erected in the Iron Age during the Celtiberian era, organizing and verting the human occupation in pre -Roman times. The complex presents a monumental character both in the main access, as in the defensive system, equipped with moats, several lines of walls and several towers and constitutes one of the best examples of a characteristic occupation model of the Celtiberian culture in Aragon.

The expert value of the damages caused by the defendant in the archaeological site of Castejón I El Romeral de Aranda de Moncayo is 106,825.50 euros as we have said previously.

EIGHTH.- The defendant Carlos María, gave almost total exit to the celtiberos metal effects that he was finding, selling most of the defendant Tomás, who was storing them both in his Utebo work ship (Zaragoza), as in his homelocated in Alagón, as at the home of her marine son, located in Zaragoza on Calle002 No. Num002.

The defendant Tomás, with full knowledge of his extraordinary value and of his illicit origin, on 30.07.2013, in his work ship in Utebo (Lithuania Street No. 2, Polygon La Casaza), at his home in Alagon (Calle001 n.º Num001) and at the home of his son in Zaragoza (Calle002 No. Num002) stored those archaeological pieces of exceptional scientific, cultural, cultural value, with knowledge that theyirreparable by Carlos María.All those archaeological pieces were usually bought from the defendant Carlos María.

On 30.07.2013, the defendant Tomás was in possession of 82 fragments of a single Celtiberian helmet in a hemispheric way with evidence of manipulation after his exhumation, in the case of a copy of extraordinary scientific value, because to date only a helmet was knownof this type and supposes not only bending the number of known helmets, but also completing a step in the evolution of the Celtiberian helmet to the Hispanocalcidicist helmet.

Tomás was also in possession of four pieces of the Calcidal Help of exceptional scientific value, consisting of two nasal helmet protectors (identified as HLL.2120 and H LL 2121), a cheek hinge (identified as H 11.918) and aapply serpentiform (identified as H ü. 106).In short, these four hull fragments found correspond to between 3 or 4 different helmets, distinguishing two different models of extraordinary relevance and historical assessment, linked to the funeral ritual of the pre -Roman peoples, with the origin of the necropolis of Aratikos.

The study of helmets, their chronology and characteristics is essential to know the military, social and technical behaviors of the Celtibean era.In the Celtiberian site to which they belonged, they fulfilled a funeral and ritual function, whose identification and study with scientific criteria, would have provided very relevant information about religion, society, economy, technology and war in the pre -Roman Celtiberian world.

The defendant Tomás was also in possession of a part of a bronze disc-corace, (identified as H Ll. 1939), which perfectly fit the other half that was found in the registry made to the defendant Carlos María, bothcoming from the looting of the Moncayo Aranda site (Craza disc identified as H l. 4005, folios 69 to 71 Annex Expert Report) which shows the commercial connection between both defendants.

Thus, on 30.07.2013 at 11 am, the Judicial Commission practiced entry and registration in commercial establishment located on Lithuania Street No. 2, polygon La Casaza de Utebo, owned by the defendant Tomás, intervening the backgrounds of Hispanic helmets-Calcidicos, which unequivocallyTomás did.

In the same registry, maps, cartography and various archaeological pieces were also found, among other effects of archaeological and cultural interest, two metal detectors, instructions for archaeological reproductions, request to the Provincial Council of Ávila to be able to make copies of denarii, Budget for the elaboration of ten teams of Guerrero, spearheads, pods, falcatas, metallic nerve of a shield, Honda projectiles, local lease contract in Corona de Aragón Street No. 51 of establishment for sale of detectors of detectors ofmetals

Next, about 12.30 h.On 30-7-2013, the Judicial Commission practiced a second entry and registration, at the private address of the defendant Tomás Sito on the street001 No. Num001 of Alagón, intervening the effects that work on folios 1121 to 1129 (and 1330and 1331, above) consisting of a Bible and a saints of the s.XVII and a document of sale of bronze pieces for 80 euros dated 06.06.2006.

About 4:00 p.m. on the 30-7-2013, the Judicial Commission practiced entry and registration of the son of the defendant Tomás, located in Calle002 No. Num002 of Zaragoza and proceeded to intervention of an enormous amount of archaeological effects dated betweenThe SS IV and I Before Christ, who work in folios 1130 to 1137 of the actions.Effects all owned by the defendant Tomás and not of his son.

Recapitulating: the enumeration of the archaeological pieces seized to the defendant Tomás in the framework of the Helmet LL operation, whose expert appraisal value is 107,876.40 euros is as follows:

a-.82 Fragments of a single pre -Roman Celtibero helmet of the Aguilar de Anguita type (stuck in a shoe box) (identified as H Ll. 1, folios 222 to 232 of the annex to an expert report).

B-.Four pieces of Hispanic-Calcidic helmet (which include two nasal helmet protectors, a cheek hinge and a serpentiform applique), unique in the world.

C-.A part of the Bronze Craza album, (identified as H LL 1939), whose other part, with which it fits, to the millimeter was found in the registry made to the defendant Carlos María (Disco Coraza identified as H 1,4005).

D-.62 Sword sheath fragments, seven sword leaves, two falcatas, two straight swords, a bronze sword leaf, four bronze daggers, four iron daggers.All this prior to our era.

and-.Two sets of pod clamping, with bone remains.

F-.88 tips, all of them prior to our era.

G-.30 pieces of shield.

H-.14 copies of umbos.

Yo-.A fragment of Greba.

J-.Seven pieces of cruster disc.

K-.236 Honda Glandes.

l-.13 combat axes.

ll-.A bisarma tip.

m-.Three, useful, adornment, 'store piquetas, workplaces and diverse function.

Second.- The instance hearing issued the following pronouncement:

"A. That we must acquit and freely absolute to the defendants Carlos María and Tomás of the accusation of authorship of the crime of smuggling established in article 1-1 -tercero) of Organic Law 7/1982 of the smuggling that both accused of both of them charged themBoth the particular accusation of the General Diputación de Aragón and the particular accusation of the City of Aranda del Moncayo.

We must also absolve and freely absolute the accused Tomás of the accusation of authorship of a continuous crime of intentional material damages against Spanish terrestrial archaeological site in competition with a continuous crime of aggravated theft that imputed him in the act of the oral trial the particular accusation of the particular accusation of theAranda City Council of Moncayo and the accusation of a crime of intentional material damages on archaeological site that imputes the accusation of the Government of Aragon.

B. That we must condemn and condemn the accused Tomás as the author responsible for a continuing crime of money laundering established in article 301-1. of the current Criminal Code, in relation to the provisions of article 74 of said Code without theconcurrence in the same of modifying circumstances of his criminal responsibility for the sentences of three years in prison and special disqualification for the right of passive suffrage during the entire time of his deprivation of liberty.

We also condemn a fine of 108,000 euros with a subsidiary personal responsibility of six months in prison in the case of non -payment of the expressed fine and insolvency of the same.

We decree the confiscation, delivery and adjudication of all the archaeological effects intervened to the defendant Tomás, at his home, in his workplace and at the home of his son, to the Spanish State and the Autonomous Community of Aragon jointly.

We condemn the defendant Tomás to the payment of 50% of the coast of the trial, excluding the coasts of the private accusations of the Government of Aragon and the City of Aranda del Moncayo which will be declared ex officio.

C. that we must condemn and condemn the accused Carlos María as the author responsible for a continuous crime of intentional material damages on land archaeological site typified in article 323 of the Criminal Code in force until July 1, 2015, in medial competition with aContinued crime of aggravated theft of article 235.1 of the Criminal Code in force until July 1, 2015, without the concurrence in the same of modifying circumstances of its civil liability to the sentences of three years in prison and special disqualification for the lawof passive suffrage throughout the time of his deprivation of liberty and fine of eighteen months (540 days fine) with a daily fee of 12 euros, with the subsidiary personal responsibility provided for in article 53 of the Criminal Code in case of default of the default of theexpressed fine, and insolvency of Carlos María.

D. That we must condemn and condemn the accused Carlos María, as the author responsible for a continuing crime of money laundering typified in article 301.1 of the Criminal Code in force from 1995 to the present, without the concurrence in the same of modifying circumstancesFrom his criminal responsibility to the sentences of three years in prison with the accessory of special disqualification for the right of passive suffrage during the entire time of his private liberty sentence and we also condemn him to a fine of 120,000 euros with a personal responsibility with a personal responsibilitySubsidiary of six months in prison for the case of non -payment of the expressed fine and insolvency of said accused.

We condemn the defendant Carlos María to compensate with the amount of 106,825 euros to the Spanish State and the Autonomous Community of Aragon for the material damages that intentionally caused in the land archaeological site located in the necropolis of Aratikos in the municipality of Aranda de Moncayo.

We also condemn the defendant Carlos María to the payment of the other 50% of the coast of the trial, including such coasts of 25% of the coasts of the Government of Aragon and 25% of the costs of the particular accusation of the City of Aranda del Moncayo.

Finally, we decree the confiscation and award to the Spanish State and the Autonomous Community of Aragon, of all the archaeological effects intervened to the defendant Carlos María, both at his private home in Illueca and in his wooden cabin of the place 000.

We decree the confiscation and award to the Spanish State of all metal detectors seized to the defendant Carlos María, as well as the microscope.

E. In case of the judicial proceedings that the Spanish State and the Autonomous Community of Aragon against the German, French state or against any other foreign state in which the twenty Celtiberian Celtiberous Help Celtives Calcidics will prove its value in phase in phase in phaseof execution of judgment and such appraisal value must be paid by the accused Carlos María to the Spanish State and to the Autonomous Community of Aragon, jointly, compensatory concept to whom we expressly condemn the accused antecitated if that assumption is raised. "Fourth.- Notified theJudgment to the parties, cassation resources were prepared for the violation of the law and violation of constitutional precept, by Tomás and Carlos María, who were announced;

referring to this Second Chamber of the Supreme Court the necessary certifications for its substantiation and resolution, forming the corresponding roll and formalizing the resources, claiming the following reasons:

Reasons adduced in the name of Carlos María.

FIRST REASON.- FOR BREAKING IN THE PROPERTO OF ART 851.1 LECrim for lack of clarity, contradiction and predetermination of the failure.Second reason.- For breaking of form under art 851.4 LECrim (incongruity).Third reason.- For violation of constitutional precept under art 5.4 LOPJ for violation of the right to the presumption of innocence of art 24 CE.Fourth reason.- For violation of constitutional precept under art 852 LECrim (right to effective judicial protection of Art. 24.1 CE:

lack of motivation).Fifth reason.- For violation of law under art 849.2 LECrim.Sixth Reason.- For violation of law under art 849.1 LECrim for violation of the Spanish Historical Heritage Law, Art 1.3 and 26.1 in relation to Art 323 CP.

Reasons alleged by Thomas.

First reason.- For violation of constitutional precept under art 852 LECrim for violation of the right to the presumption of innocence of art 24.2 CE.Second reason.- For violation of constitutional precept under art 852 LECrim for violation of the right to effective judicial protection.Third, fourth, fifth, sixth and seventh motifCP.and 298 CP.

Fourth.- The Prosecutor's Office was instructed on the resources filed, supporting Carlos María's second reason and challenging the remaining;The legal representation of the parties appealed community of Aragon and City Council of Aranda de Moncayo challenged the resources challenged.The Chamber admitted them to process, the cars for signaling and failure were concluded when it corresponded.

FIFTH.- The indication for failure was held the deliberation and vote prevented on June 16, 2020.

Fundamentals of Law

A) Carlos María's appeal.

First.- The first of the reasons for Carlos María's resource is accepted by art.851.1. Lecrim covering its three aspects: lack of clarity, contradiction and predetermination.There are three differentiated vices even if they have been grouped in a single section of the legal precept, therefore, strictly speaking, the principle of due separation of reasons imposed three different motifs: one for each supposed defect.

In any case, the three complaints share common notes: not only to come stated in the same precept, or have been grouped into a single reason for the challenger, but also in casu, his manifest lack of foundation: his authentic format,introducing on those ways issues outside the genuine legal sense of these reasons.They are not the statements of art.851 Lecrim apt to host the material complaints developed.

a) First the appeal is focused on the episode of the sale of the 18 Hispanocalcidicidos.It is said that the perfection of the sale of Carlos María to Ezequias has not been proven.No confusion arises from reading those passages of the sentence.And what the appellant denounces, as expressly recognized, is not lack of clarity, but lack of proof.That allegation would have a complaint for presumption of innocence;But lack of proof is not lack of clarity.Apart from this, it is not possible to glimpse what relevance could have in the legal subsumption what the appellant hints and is not denied by the sentence (the action reported of the late Ezekias is attributed to him and not others).Apart from those concrete facts in view of their chronology (prescription) are inconsequential for legal-penal subsumption.

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b) The contradiction in the facts, the appellant wants to discover on page 19 of the sentence.On the one hand, it is explained that the German judicial authorities filed the procedure initiated by the Munich Prosecutor's Office for the claim made by the Spanish State to recover the archaeological pieces.That would be contradictory with the attribution made by the sentence of his property to the Spanish State.

Again camouflages a discrepancy born from the assessment of the evidence.

There is no incongruity between both statements.They are compatible.There is, otherwise, a positive prejudicial effect of a res judicata of what is decided in a resolution apparently interlocutory and not definitive by a foreign judicial authority.And, in any case, it is an probative issue, not of internal contradiction of the proven fact.

The provisional archive of previous proceedings by a Spanish court for these facts (supposed crime of smuggling) either evidence that the helmets had not been illicitly exported, or that the Spanish State lacks rights over them.

c) Nor is predetermination appreciated in the sense of art.851.1 LECrim.Logically, the assessment of the condition condition -Predtermina- the failure.It can not be any other way.But that is not what prohibits art.851.1 As the jurisprudence explained until satiety.The predetermination of the ruling implies the use of expressions with a specific legal technical content that therefore ignores a narrative of acts stripped of valuations or "oversupply".It does not mean that the facts reported have to be criminally "neutral."That is not only absurd but it would also be incompatible with what is requested to the court: a criminal prosecution.The legal-penal subsumption with the nomen iuris of the infraction or with other technical concepts whose concurrence must be analyzed in the level of criminal argumentation-contracting the legal category with the proven fact (legal trial)-;

and not at the previous level of probative assessment (historical judgment).But the story must necessarily be prepared with the clear objective of criminally assessing the action: in that sense what the proven facts say must fatally condition the ruling.It can not be any other way.What is anathematized is the use of strictly legal concepts, with a non -approved technical meaning to vulgar, which would allow to avoid legal argumentation support for criminal subsumption and, at the same time, mock the possibilities of casational control.

It is not predetermination of the ruling to express what has been considered proven, as in this case the relationship between both defendants.Logically, everything that the proven facts contain -if they are well written, the failure is written.But it is something else outlawed by art.851.1 LECrim.If it were another way, a writing of proven facts would be impossible.

Finally, using that internal defect of the sentence as a window through which to introduce a probative debate also implies a spurious route: a kind of smuggling - now procedural that aims to transfer through an improper customs (art. 851.1 lecrim) debates that does notThey are channeled by way, even if they come camouflaged with inappropriate labels.

The writing conferred by the Chamber to the proven fact or undermined the possibility of reviewing the legal assessment;nor does any matter subtract to the legal conceptual debate.Not all predetermination of the ruling is cassation defect-it is not important to repeat it once again despite being topical statement in jurisprudence-but only that derived from the use of a technical-legal phrase that avoids the factual narration conditioning the legal subsumption (using strength inThings; attacked alevenfully; he killed her with cruelty ...) (STS 500/2017, of June 22).The art.851.1 is not suitable for hosting evidence.

The reason can not be estimated.

Second.- The appellant alleges in a second reason that uses art.851.4.º (ultra petita incongruity) that has imposed a fine of 120,000 euros (the one requested by the Prosecutor's Office);Thus, the sentence indicates that the archaeological effects intervened to the appellant had been priced at 42,639'21 euros, and announces that the fine will be accommodated to that amount.

The reason has deserved the support of the Public Ministry.

It will be estimated for more than such a decision may not have much reach in view of the impact at this point of other subsequent reasons.

Actually, we are not facing an accusatory principle problem: the amount of the proportional fine imposed does not exceed that requested by the accusations.

Nor is it even a problem of legality: the fine imposed does not exceed the possible framework established by art.301 CP: From the triple of the bleached effects.

We are facing a simple material error of the sentence as demonstrates the reading of its sixth legal basis.In it appears this statement "the cumulative fine that will be imposed on the accused will not be 120,000 euros requested by the Prosecutor's Office, but that of 42,700 euros that is the value of appraisal of the effects seized to the accused .... Despite this inThe operative part of the sentence is quantified at 120,000 euros.

The clear error could have been subject to a simple rectification file (arts. 267 LOPJ or 161 LECrim).

In pure orthodoxy to him it would be necessary to refer to the appellant.But by procedural economy to which in this case other reasons are added as we will see later, we opt for the estimate of the reason that would lead to granting congruence to the operative part of the sentence in that particular with the foundation, thus saving what is no morethan an involuntary slip.

Some transcendence must have the estimate in any case: the coasts of the cassation.

Third.- Violation of the principle of presumption of innocence under art.852 LECrim constitutes the theme of the following reason.There would be not enough evidence to declare accredited, as the sentence does, that the search and plungal activity was extended beyond 1996, as the appellant has been sustaining.The indications that support that statement would be misunderstanding and weak: the possession of a hoe and other such tools, or metal detectors is not enough to achieve absolute certainty that they continued to be used.

The appellant has offered a satisfactory explanation (satisfactory?, We would bet) about the possession of cartographic planes: the search for truffle.

Nor does the coincidence of the two pieces of cruster disc found to each of the defendants can mean what the sentence deduces from it.

The reason cannot prosper.

The instance room has had an indicative, but sufficient and conclusive evidence, that this ex -polio activity of the important Celtiberian site lasted until the dates immediately prior to the arrest of the appellant and records of their homes, cabin, vehicle and vessel.

The certainty is nourished by the finding available to the defendant of a hoe with land (unequivocal sign of having been used recently); A cartographic map, which is indicative of the activity that is imputed to it, instead being little plausible in that context the explanation offered by the accused; Archaeological elements with still land or herbs that show that they had been obtained in non -distant dates; as well as metal detectors whose possession has not justified beyond saying that he did not use them after that remote date (1996) that would place us in a prescription scenario, thus being, however, that two of those elements suitable for tracking In search of metals they had been bought on very subsequent dates: 2003 and 2006, and that, in addition, some were found in the vehicle, an indication that points to a more common and not so temporarily remote use. This picture allows the conviction of the Chamber to be considered solidly: the defendant continued with his dedication to the picolio of the site, an activity in which he would not cease until the judicial intervention in 2013.

The reason is dismissed.

Fourth.- The fourth reason denounces lack of sufficient motivation in the sentence.

We share with the appellant the generic appreciations about the importance of the motivation of judicial resolutions and their transcendence, also constitutional, as well as the link with the presumption of innocence of the obligation proclaimed by art.120.3 CE.

Now, that duty of motivation also indirectly reaches forensic writings: if it is not argued why one thing is requested, it is difficult to counteract reasons that are not exposed.Here what suffers from lack of motivation is this reason for cassation.It is said that the sentence is an orphan of motivation, but it is not explained why it is understood so.

After reading the sentence carefully, twice consecutive, with that only perspective (detecting lack of motivation with the same effort used by the defendant to detect metal pieces) we have not even been able to intuit what aspect is considered orphan of sufficient reasoning.It is not glimpsed if one is thinking about factual or legal motivation.That is why we cannot offer our refusal to estimate the reason, assuming the risk of receiving the same reproach of being stingy in our motivation, more reasons than the opposite assertion: the sentence is motivated.

The resource says it is not sufficiently motivated;that are not in the sentence the reasons why the conviction is reached.We believe that it is well motivated: and we verify that it explains the reason for the conviction both in its probative aspect and in the legal-penal.As we ignore where you see a defect the appellant we can not argue.

The reason is not accepted.

FIFTH.- The following reason is accepted to the format of art.849.2 LECrim although with absolute contempt of its strict legal discipline: it lists disorderly a set of evidence (many, in addition, are not documents, but personal tests), and then without specific link with those elements gathered in the statement develops an autonomous reasoning withoutStrict support in documents, which thus become a new excuse to argue outside them.

There is in the speech something back to the presumption of innocence, and some error iuris exposed inaccurately and linked to the prescription.

On the one hand, it is insisted on the lack of proof of Execations of Expolio after 1996 and that they have reached 2015 (it is evident that it is an errata: 2013 is the date that as the end of this activity fixed the sentence).

The crimes would be prescribed, as stated in relation to smuggling, which, according to the appellant, would show the incongruity of the decision.

As for the moment of cessation of the accused activity, it has already been shown what evidence supports the conclusion of the Chamber and how they are estimated convincing (foundation of third law of this judgment).

From that estimate, the plot building about the prescription is collapsed: a continuous crime does not begin to prescribe until the last action is carried out in criminal continuity (art. 132.1 CP 1995, which only makes legislatively translate what was a jurisprudentially consolidated thesis).

The crime of smuggling, on the other hand, is an instant crime: it began to prescribe at the time of its consummation.The defendant has benefited from that reality: the passage of time has canceled his eventual responsibility for that other infraction.

Nor can this reason be welcomed.

SIX.- The last reason for violation of art.849.1.º Lecrim arouses a legal issue that refers exclusively to art.323.1 CP and not at 235.1 CP.He speaks of goods of historical, artistic, scientific, cultural or monumental value, or in archaeological sites;He talks about artistic, historical, cultural or scientific value.

The problem is simply exposed: are those concepts managed by these criminal precepts, or are they vicians of administrative legislation?Can the criminal applicator assess these elements of typicity with autonomy, or is it tied by the statements or categories of an administrative nature that may have fallen to the goods?If a good is not classified as a good of cultural or inventoried interest, does it decay the possibility of applying these typicities?The problem as the representative of the Public Ministry is well warned is jurisprudentially resolved many years ago.A prior administrative qualification is not required to apply these criminal precepts.

Already the STS of June 3, 1995, in tune with many precedents that referred to CP 1973, had proclaimed that "it does not prevent the prior declaration from the corresponding body of the historical heritage; the existence of knowledge by knowledge is sufficientof those accused of the relevant condition of the archaeological remains and of the intentional destruction of them in order to culminate the construction ", thus ratifying the condemnation relapsed in the instance for such an infraction.

That exegesis deserved the endorsement of the Constitutional Court.The STC 181/1998, of September 17, reason that the decisive is the objective historical value of the good in question, beyond whether or not the official administrative intervention or cataloging occurs.The criminal protection, constitutionally ordered, on property:

"It does not constitute, therefore, according to the interpretation supported by this jurisprudential line, an integral requirement of the criminal type that precedes the declaration of cultural interest of damaged assets, since criminal protection is dispensed with respect to those who, with formal or without formal qualification or withoutShe, integrates the objective scope of the Spanish historical heritage, as this is configured by the aforementioned Law 16/1985 ".

The principle of legality is not affected by the absence of this prior administrative intervention.It is not necessary that the goods whose damage or alteration is lacking the corresponding official intervention by declaring them uniquely protected by these characteristics, or specifically inventoried.

Very recently, this doctrine that was already proclaimed in relation to the specific aggravations of CP 1973 as a monographist recalls, has been reaffirmed in STS 641/2019, of December 20, relapsed in an appeal against sentence issued by the Provincial Court Resolving an appeal againstthe pronouncement of a criminal court, and, therefore, with the claim to fix doctrine what is done through the following assertion:

"Article 323 of the Criminal Code, when it establishes as a typical element that the damage falls on goods of historical, artistic, scientific, cultural or monumental value (or in archaeological, terrestrial or underwater deposits), refers to a cultural normative element, for whoseAssessment, the judge must meet elements or values that configure the administrative regulations in this matter; without the need for this property to have been administratively declared, registered and/or formally inventoried with that character, since it is not a requirement provided for in the norm and notwould properly satisfy the mandate of article 46 CE ".

It coincides in this way with the best doctrine that derives the convenience of this interpretation in criminal headquarters not vicar of administrative decisions of the guardianship required by art.46 CE.

The aforementioned sentence after making a jurisprudential precedents tour produced around CP 1995 (SSTS No. 654/2004, of May 25 and 932/2016 of November 15, with contradictory statement and ATS of October 4, 2012 -Resource 20460/2012-), offers a panoply of solid arguments to endorse that exegesis:

i) The legal diction of precept that does not require prior administrative qualification.

ii) The penological comparison with art.321 that only covers the singularly protected buildings for their historical, artistic, cultural or monumental interest, in direct reference to administrative regulations (art. 9.1 Law on Historical Heritage).

iii) art.46 CE that provides for the criminal sanction of attacks against this heritage: historical, cultural and artistic of the peoples of Spain and the assets that integrate it, whatever their legal regime and their ownership.

A formal interpretation of heritage, which does not protect those not formally declared as "goods of cultural interest", but how materially they would not give adequate compliance with the constitutional mandate.

iv) and, finally, the aforementioned STC 181/1998, of September 17.

The reason also decays b) Tomás.

Seventh.- For reasons of methodology we alter the order with which the reasons are presented.We analyze the last one first.It proposes to replace the qualification as a crime of money laundering for a crime of reception.Like all other reasons, they revolve around the crime of money laundering for which he has been convicted, and his argument is conditioned by that prism, the approach will vary in very significant issues if instead of a laundering crime we estimate that, in effect, as the appellant advocates, the correct qualification is the reception of art.298 CP.

The principle of validity forces us to give a content, a field of application to the reception, that classic and deep roots and tradition, which seems to have been engulfed by the impetuous voracity of the new typicity of money laundering that has been conquering territoriesand spaces progressively to impulses above all legal, but also jurisprudential, despite its relatively short life.Brutal growth has characterized its overwhelming evolution.

The appellant is right when in some passages of the appeal complains that the sentence speaks of a laundering activity initiated in the last century, in the nineties or late eighties.It's not possible.

Then there was no typicity at least with the way we know it today.It is in 1989 when a very limited object was born in our system a crime of money laundering acolyte of drug trafficking activities.And it will not be until October 1, 2004 when laundering activities can be punished that have non -serious crimes as a history (as is the case here).You cannot talk about punishable bleaching in the facts prosecuted prior to that date.

The crime of reception in the regulation given by the 1995 Criminal Code was wideIt helps the author (in which the paid restoration of illicit effects fits perfectly).Therefore, this typicity dilutes many of the issues to which this appellant is spinning in the previous reasons (including the alleged difficulty of assimilating the restoration to typical laundering actions).

At the same time the old crime of reception has been losing some of its classic spaces taken by the young money laundering in progressive expansion since its appearance in our punitive order.This infraction has been charging greater prominence to the detriment of the reception, even at the symbolic level of the legal rubrics: Chapter XIV of Title XIII of Book II of the Criminal Code since the 2010 reform has changed its denomination by acquiring substantivity the money laundering ofCapitals also on that semantic plane, in which it was previously simply "related" to the traditional crime of reception.

In accordance with current art. 298 The crime of reception, "requires for its assessment the concurrence of the following requirements: 1st) There must be the commission of a crime against assets or socioeconomic order, in which the author of this crime has not intervened or intervened as an author or as an accomplice; 2) a action action must attend for the effects of crime, which constitutes the core of this infraction and determines the moment of consummation; in particular, the criminal type requires an act of helping those responsible for taking advantage of the effects of the same, or an act of cover -up, so that the author receives, acquires or hides such effects; 3rd) must attend the author of profit; and 4º ) A basic element of a cognitive nature must be given, consisting of knowledge by the active subject of the background commission of such a crime against goods, knowledge that does not demand an exact, full and complete news of it, but a state of certainty which means a knowledge above the simple suspicion or conjecture. This knowledge must be inferred as a psychological or internal fact, when direct evidence in most cases, of external data and accredited objectives, with which a causal and logical link can be established, it is enough to understand the fulfillment of this requirement that required this requirement with The court of instance uses expressions such as “knowingly or with knowledge of its illicit origin” (STS 590/2010, of June 2).

In view of the extension conferred to the type of art.301 that is chaining verbs to end an open formula (any other act), what remains for the reception?That is the question about which the last reason for this resource challenges.Has the reception of money laundering been definitely phagocyted?EIGHTH.- Given that dilemma (money laundering versus reception) it is convenient to entertain itself in the dimension that the last jurisprudence has been making the crime of money laundering.The appellant attracts attention.The STS 265/2015, of April 29, which represents the solemn official, so to speak, of criteria that had already appeared in previous precedents, is the basic piece.Despite its extension, it is worth reproducing some of its passages:

"The appeal raises a matter of special interest, which, in the first place, to carry out considerations on the so -called self -locking, and then carry out a precise interpretation of the typical sanctioned behavior as a crime of money laundering, since an excessively lax interpretation of the typical actionIt leads to results that in cases of laundering can be violators of the non bis in idem principle, while certain restrictive interpretations are well intentionally but scarcely consistent. "

All arguments that are now interested in autoblanqueo only as extrapolable to coacusado.

But we bordering them in part, as long as that is not decisive for the purpose of using the criteria of this precedent to respond to the appeal we are analyzing now.

The sentence continues later:

"From the value point of view, you have to take into consideration:

a) That the main characteristic of bleaching does not reside in the mere enjoyment or use of illegal gains, even in giving them "exit", to indirectly enable that enjoyment, but also sanctions into consideration of the "return", as soon aslink necessary so that the wealth thus generated can be introduced in the economic cycle.So that the precept that sanctions drug trafficking cannot fully understand the devaluation of subsequent bleaching activities.

b) The legislator has expressly decided that the money laundering of the profits from a criminal activity by its own author, even if it can also be considered an act of use or assurance of the profits derived from the preceding crime already condemned, or of self -protection of its author, however, it must be sanctioned autonomously in attention to the special protection that the legal good that violates, which protects the socioeconomic order, and given its multi -fensive character, also protects interests of the administration of justice, being different from the one that protects the crime to which it subsigutes.

c) And above all, to understand that this legal entity not weighted in the sanction of the initial crime, justifies that the money laundering must be subject to independent sanction for reasons of criminal policy, precisely to constitute the condemnation of the bleaching an ideal instrument to combat crimeOrganized, which directly or indirectly relies on the generation of illegal wealth and its undercover return to the legal circuit of capital.

It must be indicated, additionally, that the penalty established for money laundering can exceed the one indicated for the antecedent crime, and does not seem congruent that it is more seriously sanctioned to those who only bleach profits from a criminal activity than to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whom, to whomIn addition to devoting this activity, bleach the profits obtained. "

These reflections, arising before the express punishment of autoblanqueo, also condition the interpretation of money laundering attributed to third parties: the conduct that is punished must be the same, although the author is the one who has not participated in the prior crime.

Let's take up the thread of the sentence taken as the main reference:

"Indeed, although the mood of enjoyment of profits does not constitute a typical requirement of the crime of drug trafficking, obtaining benefit and profits with it, and its further enjoyment, integrate a binomial of difficult split, so that the impositionof an autonomous penalty for the mere fact of acquiring, possessing or using the profits obtained could violate the prohibition of double incrimination. Therefore it is necessary to specify that the typical sanctioned action as a crime of moneyUse the benefits acquired but, as the type requires, in performing these or other acts when they tend to hide or cover up the illicit origin of the profits.

The Criminal Code sanctions as money laundering those behaviors that tend to incorporate the goods, money and profits obtained in the realization of criminal activities into legal traffic, so that the asset washing process exceeded, it can be legally enjoyed by them withoutbe sanctioned.

Specifically art.301 of the Criminal Code sanctions as responsible for the crime of money laundering to those who acquire, possess, use, convert, or transmits goods, knowing that they have their origin in a criminal activity, committed by him or by any third person, or perform any other actto hide or cover up their illicit origin, or to help the person who has participated in the infraction or infractions to avoid legal consequences of their actions.

The inclusion in the typical writing of two subsections ("knowing that they have their origin in a criminal activity", "committed by him or by any third person"), leads some interpreters of the norm to erroneously estimate that the purposeEssential of money laundering (hiding or covering up the illicit origin of money) is only preached from "any other act", and not all the behaviors described in the type.From this position it is affirmed that the mere fact of possessing or using goods from a criminal activity, knowing its origin, integrates the crime of money laundering, and it is argued that the punishment of the autoblanqueo constitutes a violation of the principle "non bis in idem".

But this position cannot be considered successful.To better understand the typical behavior, it should be temporarily dispense with these two subsections, and specify the actions that make up the type such as: the one that acquires, possesses, uses, converts, transmits or performs any other act to hide or cover up the illegal origin of goods comingof a criminal activity ....

The essence of the type is, therefore, the expression "in order to hide or cover up the illicit origin."Purpose or object of the behavior that must be present in all the behaviors described by the type.

We are not, consequently, before two groups of different behaviors, those of mere acquisition, possession, use of conversion or transmission of goods from a criminal activity, knowing its origin, and those of realization of any other act on these assets with theObject to hide or cover up its illicit origin, which would lead to an excessively broad interpretation of typical behavior, and the impossibility of avoiding the violation of the principle "non bis in idem" in the assumptions of autoblanqueo.

On the contrary, art 301 CP only typifies a modality of conduct that consists in performing acts aimed in any case to hide or cover up goods of criminal origin, or to help the author of this activity to avoid the corresponding sanction.With this more restrictive interpretation, we avoid excesses, such as those of sanctioning the person responsible for the antecedent criminal activity, for the mere fact of acquiring the goods that are a necessary and immediate consequence of the realization of their crime.Or that of considering the mere use of the money corresponding to the quota unpaid in a fiscal crime, for ordinary expenses, without any purpose of concealing nor is it intended to obtain a seemingly legal legal title on goods from a previous criminal activity, whichIt is what constitutes the essence of the behavior that is sanctioned through the crime of bleaching.

The purpose of covering up or hiding the illegal origin of the goods or helping the participants of the previous crime, consequently, an essential element of all the behaviors provided in art.301.1 C.P.This conclusion is justified because the money laundering aims to incorporate these assets into legal economic traffic and the mere acquisition, possession, use, conversion or transmission constitutes a neutral act that does not affect itself the protected legal good. "

At the same interpretive horizon, the STS 1080/2010, of October 20:

"Thus, the mere acquisition or possession of goods from illegal activities does not constitute the type of article 301.1, if it is not accompanied by the purpose that the criminal precept, unlike the administrative, demands.

Regardless of the divergences with their translation in the criminal precept, it is clear that the purpose must be present in any act of money laundering.Including acquisition, conversion or transmission ".

This resolution evokes the STS of April 8, 2010: "It cannot be forgotten that the criminal policy reason for these criminal types is to prevent crimes authors from achieving incorporation into legal economic traffic, goods, money, money,profits and benefits from their criminal activities. Criminally political decreases the incentive of criminal behavior that its authors cannot enjoy how illegally obtained achieving the appearance of legality that makes this enjoyment legally unquestionable. "

For its part, STS 884/2012, of November 8, will affirm: "(...) to fill the typical trial, therefore, with the finding of the objective type, it will be essential to prove the willingness to activate the willingness to activate a process ofIntegration or conversion of the assets obtained through the prior commission of a criminal act, thus achieving appearance of legality to the profits associated with crime. "

Touchstone to discriminate between classical reception and modern money laundering, will thus verify and prove the suitability of imputed behavior to incorporate illegal goods to regular lawful economic traffic.The simple enjoyment of illicit profits is not enough, nor the help provided for that enjoyment or use.The behavior punished as whitish is not to hide the goods, but actions suitable to hide their illicit origin.Nor assist the author to obtain any performance of his illicit activity, but to help him with acts aimed at giving appearance to criminal income or benefits, thus helping the refund of those contaminated assets to the legal economic system.Note as the figure typified in section 2 of art.301 Talk not to hide the goods, but to hide or cover up their nature, origin ...

In this regard, the considerations made by STS 265/2015 listing symmetries and differences between money laundering and reception are again of great interest.The prosecutor's opinion echoes that passage that we now transcribe.

"This configuration of the typical behavior, in which all the action is chaired by the purpose of hiding or covering up the illicit origin of the goods or of helping the authors of the crime to avoid the consequences of their actions, also allows to distinguishthe money laundering of other crimes such as reception.

The money laundering is the process under which the goods of criminal origin are integrated into the legal economic system with the appearance of having been acquired lawfully, so the crime tends to ensure that the subject obtains a legal title, apparentlylegal, on goods from a previous criminal activity.

Between both criminal behaviors (reception and money laundering) there are similarities, and therefore the legislator regulates them in the same chapter of the Code (Chapter XIV of Title XIII), which is precisely entitled, "of the reception and money laundering".

But between both crimes there are relevant differences:

1.) Both crimes presuppose a preceding crime that has produced profits to its authors, although the reception requires that in any case a crime against equity or socioeconomic order, and the money laundering can have any criminal activity as a history, notStrictly patrimonial, for example, narcotics traffic or urban corruption.

2.) In both crimes, knowledge of the illegal origin of the goods is required, but in the reception it is also required that the recipient has not participated in the prior criminal activity either as an author or as an accomplice, while in the laundering the laundering theBleach gains can come from the bleaching activity itself.

3.) Both crimes refer to a post -demonstrative intervention, but the activity that is sanctioned has a different purpose.In the reception, what is prohibited, essentially, is that the third benefits from the result of the previous criminal activity, or helps the author to take advantage of the effects of crime, but in any case with its own profit.In money laundering, what is about avoiding is that the goods of criminal origin are integrated into the legal economic system with the appearance of having been acquired lawfully, without necessarily required to profit in the specific laundering operation.

4) Both crimes are sanctioned with prison penalIn money laundering: in no case may a imprisonment that exceeds the one indicated to the undercover crime impose itself.

The overlap can occur when laundering behaviors fall on effects that constitute the material object of a crime against heritage or against socioeconomic order, executed by a non -intervening in the previous crime.

In these cases, the principle of alternativeness of art.8.4 CP, sanctioning the most serious crime that is money laundering, provided it is an ideal act to incorporate criminal profits into economic traffic, in order not to privilege the behavior of the subject sanctioning the slightest behavior, despite being affectedthe legal good protected by laundering. "

The STS 408/2015, of July 8 will reiterate that doctrine suggesting that this behavior of assistance to the use of illicit profits, when they do not incorporate a plus of cover -up of their origin, would be constitutive of reception if they make them a third party;Atypical when the person in charge of the background crime is carried out:

"The judgment of instance assumes criteria that collects from the STS 858/2013, of November 19 to acquit for such a crime: the condemnation for self -locking of goods from infractions against the property for which a penalty would already be imposed on the prohibition would affect the prohibitionof the Bis in Idem. The use of the goods from a crime by those who have participated in the same criminal action, in this case predatory, is a co -copened act. The penalty of the antecedent crime encompasses the connatural acts and concomitant to it.It would not make sense to add to the penalty deserved for the crime of theft or robbery another penalty - which paradoxically can be much higher - for using the stolen goods or funds for your own enjoyment or to acquire other goods.

Different things are presented if another person who takes advantage of those effects with knowledge of their origin or provides their help to the authors for that use is another.In those cases we could be respectively in the face of reception or cover -up crimes (art. 298 or 451 CP) to which we have to reserve their own space if we do not want to see them phagocyted by the unstoppable expansion of the crime of money laundering.

In the case, the sentence does not describe a masking behavior, of fictional coating to hide an illicit origin.

There is no additional behavior aimed at covering up or hiding the origin, beyond that inherent in any exhaustion of a patrimonial crime.The illicit product is hidden, but its origin with suitable acts is not invisible;or at least it is not expressed by the sentence in the proven fact.

The episode of the clandestine export of the helmets, which occurs at the time when the money laundering did not cover that behavior could, however, morphology cataloging as the activity of money laundering for using the most expressive Latin American terminology.

The reason must be estimated: the facts must be qualified as a crime of reception in relation to this appellant.

The extensive effectiveness of the resource (art. 903 LECrim will lead to the other recurring of the crime of money laundering: self-recepting is atypical.

Ninth.- From this renewed perspective- reception instead of moneyothers to take advantage of them through their acquisition (a);and if he knew that illegality (b).There is no doubt about that as long as it is accepted by the accused: the sentence describes the possession of many objects that had to assume from the plunder;And there is no doubt about his collaboration with the other defendant so much helping him in the restoration and acquiring some of the effects.

TENTH.- The second, third, fourth and fifth motives lose their content: it is clear that the crime of reception is consummated.The use arises with possession.And the author's help (restoration) is also typical.The appellant's position as author appears.His arguments about those extremes in relation to the crime of money laundering are not transviable to the crime of reception.

Eleventh.- It could be discussed whether the reception has to be understood committed in the form of continuity.In this regard there is no dogmatic inconvenience or jurisprudential, unlike what happens in the crime of money laundering in which it is controversial if possible and what conditions should be given for that admissibility.

Once the jurisprudence has demanded to appreciate a crime of continuous reception that was also the antecedent crime.Nor would there be a matter in relation to that more than debatable demand.But there is no doubt about the viability of a continuous crime of reception when various receptions or acts of help occur (vid. SSTS 128/2015, of February 25, 726/2002, of April 25 or 641/2004, of 19of May).

Twelfth.- The costs must be declared ex officio when the two resources are estimated (art. 901 LECrim).

FAILED

For all the above, on behalf of the King and by the authority conferred by the Constitution, this Chamber has decided 1.- Estimate the appeal filed by Tomás against Judgment issued by Section 6 of the Provincial Court of Zaragoza ofDate July 16, 2.018, in a cause against the recurring for a crime of intentional material damages on terrestrial archaeological site and smuggling;by estimation of the seventh motive of his appeal;And in his virtue we marry and annul the sentence issued by the Provincial Court of Zaragoza declaring the coasts of this ex officio appeal.

2.- Estimate the appeal filed by Carlos María against Judgment and Audience reviewed;by estimation of the second reason of his appeal;declaring the coasts of this ex officio resource.

Communicate this resolution and the one that is then issued to the sentencing court for the appropriate procedural effects, with return of the case that once referred, interesting him of receipt.

Notify this resolution to the parties by letting them know that against it there is no appeal and insert in the legislative collection.

This is how it remembers and sign.

Andrés Martínez Arrieta Antonio del Moral García Ana María Ferrer García Vicente Magro Servet Eduardo de Porres Ortiz de Urbina Casacion Resource No.: 3577/2018 Speaker: Excmo.Mr. Antonio Del Moral García Lawyer of the Administration of Justice: Ilma.Mrs. Mrs. Sonsoles de la Cuesta and Quero

Supreme Court

Criminal Room

SEGUNDA JUDGMENT

In Madrid, June 19, 2020.

Esta sala ha visto causa que en su día fue tramitada por el Juzgado de Instrucción n.º 2 de La Almunia de Doña Gocina (Rollo 53/2017), fallada posteriormente por la Criminal Room de la Audiencia Provincial de Zaragoza (Sección Sexta), y que fue seguida por delitos de daños materiales intencionados sobre yacimiento arqueológico terrestre, blanqueo de capitales, hurto y contrabando contra Tomás y Carlos María en la que recayó sentencia que ha sido casada y anulada por la dictada el día de la fecha por esta Sala integrada como se expresa.

The Hon has been speaker.Mr. Antonio del Moral García.

Background in fact

Unique.- The background and proven facts of the instance judgment are reproduced.

Fundamentals of Law

First.- The reasons that have been exposed in the previous sentence lead to the acquittal of both accused of the crime of money laundering for which they were convicted.

In the case of Tomás, such a conviction must be replaced by another referred to a continuous crime of receiving art.298.1 (in the editorial prior to the reform operated by Organic Law 1/2015).The penalty in the abstract moves between six months and two years because the new subtype of 2015 on the nature of the goods is not applicable, there are no elements in the sentence that open the way to other aggravatory circumstances (art. 298.2 CP).Being a continuous crime, the penalty must be imposed in its upper half which is a minimum of one year and three months in prison.The high archaeological and scientific value of the received objects that could not go unnoticed to the defendant, an expert in that area, invites you to look for a stretch close to the maximum that we will specify in a year and nine months in prison.

As for the coasts of the instance, no variation must be made in view of the somewhat peculiar way in which they were distributed but that block with the solution we now give in cassation to the criminal issue.

FAILED

For all the above, in the name of the King and by the authority conferred by the Constitution, this Chamber has decided 1.- Absolve Carlos María of the crime of money laundering from which he had been accused.

2.- Condemn Tomás as the author of a crime of reception to the penalty of a year and nine months in prison with the accessory of special disqualification for the right of passive suffrage during the entire time of his deprivation of liberty.

3.- In the rest the pronouncements of the instance judgment in everything that is compatible with it are maintained.

Notify this resolution to the parties by letting them know that against it does not appear and enter the legislative collection.

This is how it remembers and sign.

Andrés Martínez Arrieta Antonio del Moral García Ana María Ferrer García Vicente Magro Servet Eduardo de Porres Ortiz de Urbina