Article 153 Spanish Criminal Code: Assault and minor injury in the domestic context

Article 153 of the Spanish Criminal Code elevates to the status of an offence conduct which, between strangers, would amount only to a minor offence: causing a minor injury, or striking or ill-treating without injury, where the victim is or has been a spouse or partner, or belongs to the family circle described in Article 173.2. It is prosecuted before the specialised sections and is the charge most frequently brought against foreign residents after a domestic argument.

Wording of Article 153 of the Spanish Criminal Code

Elements of the offence

1. A psychological impairment, an injury of lesser gravity than that of Article 147.1, or striking or ill-treating without injury.
2. A qualifying relationship: current or former spouse or partner, or a person within the family circle of Article 173.2.
3. Intent as to the conduct; the relationship itself operates as an element of the offence and not as an aggravating circumstance.
4. No requirement of habitual conduct, which would engage Article 173.2 instead.
5. Prosecution of the court motion, without any need for a complaint by the victim.

Defence strategy

Reduction by one degree under paragraph 4. This is the most useful provision in practice and the one most often overlooked. It permits a reduction of one degree in view of the minor significance of the act and the personal circumstances of the offender. Its invocation requires evidence as to those circumstances and must be argued expressly, since the court is not obliged to consider it of its own motion.

Reciprocity of the incident. Where both parties engaged in mutual pushing or grappling in the course of an argument, and both sustained comparable marks, the analysis changes materially. The medical reports of both participants, and any recordings, are the central evidence.

Assessment of the complainant evidence. Where it stands alone, it must be examined against the established criteria of absence of subjective unreliability, plausibility corroborated by objective peripheral data, and consistency. Contradictions between the initial complaint, the investigation and the trial, the existence of parallel family proceedings and the absence of medical evidence are the material of the defence.

The waiver under Article 416. Family members are exempted from the duty to testify, although Organic Law 8/2021 has narrowed that exemption considerably. Verifying that the exemption was properly explained before the first statement was taken is essential, since a statement taken without that warning is void.

Interpretation and cultural context. For foreign clients the record frequently rests on a statement given without a qualified interpreter, or on an account translated by a relative or a neighbour. Establishing that defect is a strong ground of challenge and one that is routinely available.

Consequences of the protection order. A restraining order will normally accompany the charge. Its terms must be precise and proportionate: an order that prevents the client from returning to the family home or from attending work creates a real risk of inadvertent breach under Article 468, which is itself a criminal offence.

• Domestic violence defence in Spain
• Protection orders in Spain
• Spanish Criminal Code by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.