CONCURRENCE OF OFFENCES AND PENALTIES. — Concurrence of offences occurs when a person is guilty of several offences, that is, of multiple violations of one and the same or of different penal precepts for which he is still liable.
If the several offences are committed through a single act or omission that has caused a plurality of consequences, the concurrence is said to be formal; if, instead, the acts or omissions are distinct for the various offences, the concurrence is said to be material.
Thus, for example, there is formal concurrence if someone reveals a secret that is damaging to another’s reputation (violation of secrecy and defamation), or if he reveals a secret that is damaging to the reputation of two persons (two instances of defamation); material concurrence, on the other hand, will occur if someone reveals a non-defamatory secret and adds defamatory comments.
Positive penal law determines whether, in such cases, the penalties prescribed for each offence must all be applied cumulatively to the guilty party (material cumulation of penalties), or whether those prescribed for the less serious offences must be wholly or partly absorbed by those prescribed for the most serious offence. For the provisions of canon law on this point V. CENSURA; PENA VENDICATIVA.
Properly speaking, there is no concurrence of offences if the guilty party, though having committed several offences, has already been punished for some of them and is to be punished for only one; yet sometimes in such a case positive law applies the same rules established for concurrence of offences.
Outside of concurrence of offences is then recidivism (v.), which differs from it because 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 occurs when the same legal provision is violated several times through distinct acts that, however, are executed in pursuance of a single criminal design (i.e., the guilty party has from the outset intended to repeat the violations subsequently). In such a case, although it is a matter of material concurrence of offences, positive penal law generally, given the unity of intention in the offender, does not apply the rules established for the case of concurrence, but rather punishes only the most serious violation, though increasing the penalty.
There is instead only apparent concurrence of offences when several penal norms are violated by a single act, but these norms are such that the application of one necessarily excludes the application of the other. This occurs especially when the law regards as a constituent element or as an aggravating circumstance of an offence (compound offence) facts that, under another norm, would in themselves constitute an offence: in such a case, the penalties prescribed for these other facts are not applicable.