CONCURRENCE OF CRIMES AND PENALTIES. - There is a concurrence of offenses when a person is guilty of several offenses, that is, of several violations of one and the same or of different penal precepts, for which he must still answer.
If the several offenses are committed by means of a single action or omission that has caused the plurality of events, the concurrence is called formal; if, on the other hand, the actions or omissions are distinct for the various offenses, 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 defamations); there will instead be material concurrence if someone reveals a non-defamatory secret and adds defamatory comments.
The positive penal law establishes whether in such cases the penalties imposed for each offense must all be applied cumulatively to the guilty party (material cumulation of penalties), or whether instead those provided for the less serious offenses must be wholly or in part absorbed by those provided for the more serious offense. For the provisions of canon law on this point v. CENSURA; PENA VENDICATIVA.
There is not properly a concurrence of offenses if the guilty party, although he has committed several offenses, has already been punished for some of them and must be punished for only one; sometimes, however, in such a case the positive law applies the same rules established for concurrence of offenses.
Outside concurrence of offenses, moreover, is recidivism (v.), which differs from it because it presupposes offenses committed by someone who has already been previously convicted of an offense.
A special case of material concurrence of offenses would be the continuing offense (v. DELITTO), which occurs when one and the same provision of law is violated several times by means of distinct actions, which, however, are executorial of one and the same criminal design (that is, the guilty party has from the outset the intention of repeating the violations subsequently). In such a case, although it is a matter of material concurrence of offenses, the penal law generally, given the unity of intention in the offender, does not apply the rules established for the case of concurrence, but punishes only the most serious violation, increasing its penalty, however.
There is, on the other hand, only an apparent concurrence of offenses when several penal norms are violated by a single action, but these are such that necessarily the application of one excludes the application of the other. This occurs especially in the case in which the law considers as a constitutive element or as an aggravating circumstance of an offense (complex offense) facts that on the basis of another norm would in themselves constitute an offense: in such a case the penalties established for these other facts are not applicable.
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