Article 116 Spanish Criminal Code: Civil Liability Arising from an Offence

Article 116 of the Spanish Criminal Code establishes that every person criminally liable for an offence is also civilly liable where damage or loss follows, and that where there are several responsible persons the court must fix the share for which each answers. Principals and accomplices are jointly and severally liable within their own class and subsidiarily liable for the shares of the others, enforcement proceeding first against the assets of the principals. The article matters because in Spain the civil claim is determined in the criminal judgment itself, and for many clients it is the part of the outcome with lasting consequences.

Wording of Article 116 of the Spanish Criminal Code

Elements of the offence

1. Criminal liability for an offence, since civil liability under this article is derived from it and does not survive an acquittal, subject to the reservation of civil actions.
2. Damage or loss caused by the act, established by evidence and quantified: material loss, personal injury and moral harm.
3. Where several persons are responsible, a determination of the share of each, which the court must make and not leave undivided.
4. For legal persons, criminal liability under article 31 bis, which carries joint and several civil liability with the natural persons convicted.

Defence strategy

Distribution of shares. The court must fix the share of each responsible person, and the classification as principal or accomplice determines the order of enforcement. Where a client’s contribution was secondary, establishing complicity reduces both the penalty and the position in the order of enforcement. The defence asks expressly for the shares to be individualised, because an undivided award exposes the client with assets in Spain to the whole of the claim.

Quantification of the claim. The claim is habitually presented at the maximum. The defence contests it item by item: the valuation of property by reference to depreciated value, personal injury by reference to the statutory scale for road traffic victims which the courts apply by analogy, loss of earnings by reference to documented income, and moral harm by reference to comparable awards. Expert valuation evidence is commissioned where the sums justify it.

Bringing in the insurer and other liable parties. Where an insurer covers the risk, it answers directly up to the limit of the cover, and where the act occurred in the course of employment the employer answers subsidiarily under article 120. Ensuring that those parties are joined and that the policy is produced protects the client’s own assets, and it is done during the investigation rather than at trial.

Payment as mitigation and its timing. Payment or a documented commitment to pay founds the mitigating circumstance of reparation in article 21.5, and in offences whose penalty lies near the threshold for suspension it is frequently what secures a non-custodial outcome. It also conditions the suspension itself, since the courts ordinarily require the satisfaction of the civil liability. Payment made before the indictment carries materially greater weight than payment offered at trial.

• Civil liability and confiscation
• Article 29: accomplices
• Article 127: confiscation of proceeds
• 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.