Article 16 Spanish Criminal Code: Attempt and Voluntary Withdrawal

Article 16 of the Spanish Criminal Code defines attempt and, in its second and third paragraphs, provides for complete exemption from liability where the accused voluntarily prevents the offence from being completed. That exemption is one of the most valuable provisions in the Code and one of the least invoked: a person who abandons the execution already begun, or who prevents the result, is exempt from liability for the attempted offence, retaining liability only for any offence already completed by the acts carried out. Where several persons are involved, the third paragraph extends the exemption to those who seriously and firmly attempt to prevent completion.

Wording of Article 16 of the Spanish Criminal Code

Elements of the offence

1. The beginning of execution by external acts directly aimed at the offence. Preparatory acts are not an attempt and are punishable only where the Code expressly provides.
2. Acts which objectively ought to produce the result, so that an attempt by means incapable of producing it in any circumstances is not punishable.
3. Non-occurrence of the result for reasons independent of the perpetrator’s will, which distinguishes attempt from withdrawal.
4. For the exemption, that the abandonment or the prevention of the result was voluntary, that is decided upon by the accused and not imposed by external circumstances.

Defence strategy

Establishing voluntary withdrawal. The exemption turns on whether the accused stopped because he decided to or because he was stopped. Calling the emergency services, driving the victim to hospital, applying pressure to a wound, returning the property, cancelling a transfer or warning the intended victim are all acts of withdrawal, and they are frequently present in the file without being identified as such. The defence reconstructs the sequence minute by minute, because the difference is between a sentence and an acquittal on the principal charge.

The degree of execution and the reduction. Where withdrawal cannot be established, the reduction under article 62 depends on how far the execution progressed and on the danger created. A reduction of two degrees is available where few of the necessary acts were performed or where the danger was remote. The submission is made with a concrete analysis of what remained to be done, which is more persuasive than a general plea for the maximum reduction.

Withdrawal by one of several participants. The third paragraph is available to a participant who seriously and firmly attempts to prevent completion, even if he fails. A person who warned the victim, who alerted the police or who refused to continue and tried to dissuade the others qualifies. This is of particular value to the least involved participant in a group offence, and it requires evidence of the attempt itself, which is why any message or call made at that moment must be preserved.

Residual liability for the acts carried out. The exemption does not extend to offences already completed by the acts performed. The defence therefore identifies precisely what those acts constitute, since they are frequently a minor offence or an offence with a materially lower penalty than the attempted offence charged, and the negotiation with the prosecution is conducted on that basis.

• Article 14: mistake of fact and of law
• Article 138: homicide
• 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.