Article 14 Spanish Criminal Code: Mistake of Fact and Mistake of Law

Article 14 of the Spanish Criminal Code deals with mistake. An unavoidable mistake as to a fact constituting the offence excludes criminal liability altogether; an avoidable one leaves the conduct punishable, where the law so provides, as negligence. A mistake as to a fact that qualifies the offence or as to an aggravating circumstance prevents that circumstance from being applied. An unavoidable mistake as to the unlawfulness of the conduct excludes liability, and an avoidable one reduces the penalty by one or two degrees. For foreign nationals the third paragraph is of particular practical importance.

Wording of Article 14 of the Spanish Criminal Code

Elements of the offence

1. A mistake, that is a false belief, as distinct from ignorance of the significance of conduct known to be regulated.
2. That the mistake concerned a fact constituting the offence, a qualifying fact or an aggravating circumstance, or the unlawfulness of the conduct.
3. The avoidability of the mistake, assessed by reference to the circumstances of the act and the personal circumstances of the accused, including origin, language and access to advice.
4. For paragraph 1, the existence of a negligent form of the offence, since without one an avoidable mistake of fact also excludes liability.

Defence strategy

Mistake of law and the foreign national. The third paragraph is the provision most often available to foreign residents and visitors, because Spanish criminal law diverges from that of their own country on matters they have no reason to suspect: the criminal character of driving after the loss of licence points, the treatment of a restraining order as unaffected by the protected person’s consent, the criminal punishment of the unlawful occupation of premises, and the thresholds at which possession of a substance becomes trafficking. The defence establishes what the accused was told and by whom, and what the position is in the country of origin.

Documenting the source of the belief. A mistake must be founded on something. Advice from a lawyer, an official communication, a decision of the administration, the practice of a professional sector or the conduct of the authorities themselves all support it. The defence produces those sources contemporaneously, because a mistake asserted without any external foundation is invariably held to be avoidable.

Mistake as to an aggravating circumstance. The second paragraph is frequently overlooked. Ignorance that the victim was a public officer, that the substance was of the kind that causes serious harm to health, that the property belonged to the public domain or that the value exceeded a threshold prevents the aggravating circumstance from being applied, even where the basic offence stands. This argument is made in the pleadings on classification, since it operates on the charge and not merely on sentence.

Avoidability and the personal circumstances of the accused. The statute requires that avoidability be assessed by reference to the personal circumstances of the perpetrator. Limited literacy, recent arrival in Spain, absence of any command of Spanish, and the absence of any prior contact with the legal system are all material. Evidence of those circumstances is placed before the court as part of the substantive defence and not merely as mitigation.

• Article 16: attempt and withdrawal
• Intent and negligence in Spanish law
• 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.