CONCURRENCE OF OFFENCES AND PENALTIES. — The concurrence of offences exists when a person is guilty of several offences, that is, of several violations of one or more criminal precepts, for which he must still answer.
If the several offences are committed by means of a single act or omission that has caused a plurality of events, the concurrence is called formal; if, on the other hand, the acts or omissions are distinct for the various offences, the concurrence is called material.
Thus, for example, there is formal concurrence if someone reveals a secret injurious to another’s reputation (violation of secrecy and defamation), or if he reveals a secret injurious to the reputation of two persons (two instances of defamation); there is instead material concurrence if someone reveals a secret that is not defamatory and adds defamatory comments.
Positive criminal law establishes whether, in such cases, the penalties prescribed for each offence are to be applied cumulatively to the offender (material cumulation of penalties), or whether, instead, those prescribed for the less serious offences are wholly or partly absorbed by those prescribed for the more serious offence. For the provisions of canon law on this point V. CENSURA; PENA VENDICATIVA.
Strictly speaking, there is no concurrence of offences if the offender, although having committed several offences, has already been punished for some of them and is to be punished for only one; sometimes, however, in such a case positive law applies the same rules established for the concurrence of offences.
Recidivism (v.) is also distinct from the concurrence of offences, since it presupposes offences committed by someone who has previously been convicted of an offence.
A special case of material concurrence of offences would be the continuing offence (v. DELITTO), which exists when the same provision of law is violated several times by means of distinct acts, which nevertheless implement a single criminal design (that is, the offender has from the outset intended to repeat the violations successively). In this case, although it is a matter of material concurrence of offences, criminal law generally, given the unity of intention in the offender, does not apply the rules established for cases of concurrence, but punishes only the most serious violation, while increasing its penalty.
There is only an apparent concurrence of offences when several criminal provisions are violated by a single act, but
these are such that the application of one necessarily excludes the application of the other. This occurs especially when the law regards as a constitutive element or an aggravating circumstance of an offence (complex offence) facts that, under another provision, would in themselves constitute an offence: in such a case, the penalties established for those other facts are not applicable.