Article 152 Spanish Criminal Code: Bodily Harm Caused by Negligence

Article 152 of the Spanish Criminal Code punishes bodily harm caused by negligence. Its structure mirrors that of negligent homicide: the penalty depends first on the grade of the negligence and then on the severity of the injury, measured by reference to articles 147, 149 and 150. The provision governs the criminal side of road accidents with injured parties, workplace accidents and cases of medical negligence. For less serious negligence outside road traffic, no prosecution can begin at all unless the injured person files a complaint, a rule that frequently decides the fate of the case.

Wording of Article 152 of the Spanish Criminal Code

Elements of the offence

1. An injury requiring objectively either medical or surgical treatment, which is the threshold of article 147.1, or one of the graver results listed in articles 149 and 150 such as the loss of an organ or of a principal limb.
2. Breach of an identified duty of care, defined by the traffic rules, by the occupational safety rules or by the professional standard applicable to the activity.
3. Causal attribution of the specific injury to that breach, established by the forensic medical report rather than by the emergency discharge note.
4. For less serious negligence outside road traffic, a complaint by the injured person. Without it the proceedings cannot be opened and, if opened, must be discontinued.

Defence strategy

The classification of the injury. Every step down the scale of articles 149, 150 and 147.1 reduces the penalty bracket, and the classification adopted in the indictment is regularly too high. The defence commissions its own forensic assessment of whether the treatment received was medically necessary or merely precautionary, whether the sequelae are permanent and stable, and whether a scar or functional limitation truly amounts to the deformity or loss of function the graver articles require. In cases arising from minor collisions the frequent outcome is reclassification to article 147.1 or below.

The absence of a valid complaint. For less serious negligence outside road traffic, which covers most workplace and clinical cases, the prosecution depends on a complaint by the injured person filed within the limitation period and by a person entitled to file it. A complaint made by an insurer, by a works council or by a relative without authority does not satisfy the requirement, and its defect is raised as a preliminary objection at the outset rather than at trial.

Grading and the determinative infringement. As in fatal cases, the movement from paragraph 1 to paragraph 2 transforms the exposure. The defence examines whether the traffic infringement relied on is classified as serious in the road safety legislation, whether it truly determined the accident rather than merely preceding it, and whether the court has given the reasoned decision on that question which the statute expressly requires. Accident reconstruction, vehicle download data and the sequence of the traffic lights are the material on which that argument rests.

Settlement and the position of the insurer. Because the harm is economically quantifiable, early settlement through the compulsory motor or employer’s insurance both establishes the mitigating circumstance of reparation and, very often, removes the injured party’s interest in pursuing the criminal case. Where the injured party withdraws in a case governed by paragraph 2, the proceedings end. This is the most efficient route in the majority of accident files involving foreign residents and visitors in the province of Alicante.

• Negligent driving and road accidents
• Workplace accidents in Alicante
• Article 147: bodily harm
• 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.