Article 148 Spanish Criminal Code: Aggravated Bodily Harm

Article 148 of the Spanish Criminal Code raises the penalty for the basic offence of bodily harm from a range of three months to three years to one of two to five years where the assault involved a weapon or a dangerous means, cruelty or treachery, or where the victim was a child under fourteen, a person with a disability in need of special protection, a partner or former partner, or a particularly vulnerable person living with the offender. The provision is discretionary in form, which is precisely what the defence works on, since the court may decline to apply it.

Wording of Article 148 of the Spanish Criminal Code

Elements of the offence

1. All the elements of the basic offence in article 147.1: an injury requiring objectively medical or surgical treatment.
2. One of the five circumstances listed. Each must be pleaded specifically and proved; none is inferred from the seriousness of the injury alone.
3. For the first circumstance, a means specifically dangerous to life or health. The dangerousness is assessed objectively and in the concrete manner of use, not by the nature of the object in the abstract.
4. A discretionary judgment by the court on whether the result caused or the risk produced warrants the higher bracket. The provision does not operate automatically.

Defence strategy

The means was not specifically dangerous. A glass, a bottle, a mobile telephone or a set of keys is not a dangerous means in the abstract: it becomes one by reason of the part of the body attacked and the force used. Where the object was used to strike a limb, where the injury was slight, or where the object broke on impact without penetrating, the circumstance fails. The argument rests on the forensic description of the wound and on the recordings, and it moves the case back to article 147 with a range that permits suspension.

The discretionary nature of the provision. The article says the injuries may be punished with the higher penalty. Even where a circumstance is present, the court retains a discretion to be exercised by reference to the result and the risk. Where the injury healed without sequelae, where the episode was brief and where the accused has no record, the submission that the basic penalty is adequate is available, and it must be made expressly because courts frequently treat the aggravating circumstance as automatic.

Contesting treachery and cruelty. Treachery requires the deliberate exploitation of a defenceless situation and cruelty requires suffering deliberately inflicted beyond what the assault involved. In fights arising from mutual confrontation, in incidents in licensed premises and where the parties had been arguing beforehand, neither circumstance is made out. The sequence of the incident, established from the recordings and the accounts of those present, is the evidence that decides it.

Reparation, mutual aggression and the sentence. Where the injury was inflicted in the course of a mutual fight, the possibility of a partial defence of self-defence or of provocation arises, and both reduce the bracket. Full compensation of the victim before trial founds the mitigating circumstance of reparation, and combined with an agreed disposition it is the ordinary route to a suspended sentence, which for a foreign defendant is the outcome that preserves both liberty and residence.

• Assault and bodily harm in Alicante
• Article 147: bodily harm
• Article 152: bodily harm by negligence
• 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.