Article 416 of the Criminal Procedure Law (hereinafter, LECrim) establishes an exception to the obligation…
The Ruling of the Second Chamber of the Supreme Court number 635/2022, of 23 June confirms what has already been established by the Ruling of the Plenary of the Second Chamber of the Supreme Court of 10 February 2022, and sheds light on one of the problems presented by the growing diversification and modernisation of vehicles: should electric scooters be considered mopeds, and therefore, can their drivers be criminally responsible for the offences established in articles 379 to 385ter of the Criminal Code?
In the present case, the appellant was convicted by the Criminal Court 4 of Cordoba as criminally responsible for driving a moped (he was driving an electric scooter) without a licence and without a helmet. The grounds of his appeal were that he was unaware that he could not drive the electric scooter without obtaining a licence. However, the Provincial Court of Cordoba upheld the conviction, although reducing it on the grounds of error, adding in the proven facts that the vehicle driven was an electric scooter and that the convicted person was unaware that he needed a licence to drive it.
The recent Supreme Court ruling indicates that the General Vehicle Regulation (RD 2822/1998, amended by RD 970/2020) defines mopeds separately from personal mobility vehicles (hereinafter, PMVs). Given the definition of each type of vehicle, the Second Chamber of the Supreme Court confirms that PMVs, as long as they really are PMVs and do not have the technical characteristics of mopeds, fall outside the scope of offences against public traffic safety; in the words of the ruling, PMVs “lack criminal consideration”.
In this case, as the technical information on the scooter was unknown, it could only be classified as a PMV, in accordance with the criminal law principle in dubio pro reo, which is why the Supreme Court upheld the appeal and acquitted the appellant. Finally, the Judgment states that the Court of Appeal of Cordoba should also have acquitted the appellant on appeal, since an imprudent modality of the offence of article 384 of the Criminal Code is not established, under an error of type, and therefore, if said error was proved, whether it could be overcome or not, the acquittal was obligatory.