Article 149 Spanish Criminal Code: Serious Bodily Harm: Loss of an Organ or Function

Article 149 of the Spanish Criminal Code punishes with imprisonment of six to twelve years the causing of the loss or uselessness of a principal organ or limb, or of a sense, of impotence, sterility, serious deformity, or serious somatic or psychological illness. Its second paragraph punishes genital mutilation with the same penalty. This is the gravest of the offences of bodily harm, and the classification of the injury is the whole of the case, because the difference between this article, article 150 and article 147 is measured in years rather than months.

Wording of Article 149 of the Spanish Criminal Code

Elements of the offence

1. A result falling within one of the categories listed: loss or uselessness of a principal organ or limb, or of a sense, impotence, sterility, serious deformity, or serious somatic or psychological illness.
2. That the organ or limb is principal, which is assessed functionally: the loss of function matters more than the anatomical description.
3. For serious deformity, a permanent and visible alteration of physical appearance of sufficient gravity, which the case law assesses by reference to visibility, permanence and the effect on social life.
4. Intent as to the result, or at least acceptance of it. Where the accused intended a lesser injury, the rules on mistake in article 14.2 and the grading of negligence become material.

Defence strategy

Reclassification to article 150 or 147. The classification depends on the forensic assessment of permanence and function. A partial loss of function that recovers with rehabilitation, a scar that is visible but modest, a dental injury repaired prosthetically and a psychological condition that resolves are habitually placed in this article and belong in article 150 or in article 147. The defence commissions its own forensic examination once the injury has stabilised, since the assessment made in the emergency department is invariably provisional.

The intent as to the result. The article requires intent as to the grave result, or its acceptance. Where the accused struck once, with a hand, in the course of a confrontation, and the grave result followed from the fall or from a pre-existing vulnerability, the intent extended to a lesser injury and article 14.2 prevents the graver classification from being applied. The mechanism of the injury, established by expert evidence, is what supports this argument.

Causation and pre-existing conditions. Where the result depended on a pre-existing condition, on a complication of treatment or on a failure in the medical care provided, the defence examines the clinical records in full. Spanish law does not require the accused to answer for a result outside the risk created by his conduct, and in cases of serious illness said to follow an assault the causal question is frequently open.

Reparation and the length of the sentence. Because no sentence in this range can be suspended, the objective is the minimum of the bracket, or a reduction by one or two degrees through a partial defence. Full compensation before trial, established addiction or mental disorder, and a plea are combined for that purpose, and the compensation itself must be quantified under the statutory scale rather than left to the complainant’s claim.

• Article 147: bodily harm
• Article 148: aggravated bodily harm
• Assault and bodily harm in Alicante
• 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.