Article 22 Spanish Criminal Code: Aggravating circumstances

Article 22 lists the aggravating circumstances: treachery, disguise and abuse of superiority, price or reward, discriminatory motives, deliberate increase of the suffering of the victim, abuse of trust, taking advantage of a public character and recidivism.

Wording of Article 22 of the Spanish Criminal Code

The following are aggravating circumstances:

1. Committing the act with treachery.

Treachery exists where the offender commits any of the offences against persons employing in the execution means, manners or forms which tend directly or specifically to ensure it, without the risk to the offender which might arise from the defence of the person offended.

2. Committing the act by means of disguise, with abuse of superiority, or taking advantage of the circumstances of place or time or of the assistance of other persons which weaken the defence of the person offended or facilitate the impunity of the offender.

3. Committing the act for a price, reward or promise.

4. Committing the offence for racist, antisemitic or anti Roma motives, or for any other kind of discrimination relating to the ideology, religion or beliefs of the victim, to the ethnic group, race or nation to which the victim belongs, to sex, age, sexual or gender orientation or identity, to reasons of gender, of aporophobia or of social exclusion, to the illness suffered by the victim or to disability, irrespective of whether such conditions or circumstances are actually present in the person against whom the conduct is directed.

5. Deliberately and inhumanly increasing the suffering of the victim, causing that person suffering unnecessary for the execution of the offence.

6. Acting with abuse of trust.

7. Taking advantage of the public character held by the offender.

8. Being a recidivist.

Recidivism exists where, at the time of offending, the offender has been convicted by an enforceable judgment of an offence covered by the same Title of this Code, provided that it is of the same nature.

For the purposes of this number, criminal records which have been cancelled, or which ought to have been cancelled, shall not be counted, nor shall those corresponding to minor offences, save as provided for the forms aggravated by repeated recidivism in minor offences.

Final convictions handed down by judges or courts in other Member States of the European Union shall produce the effects of recidivism unless the criminal record has been cancelled or is capable of being cancelled under Spanish law.

Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Organic Law 10/1995 of 23 November, the Spanish Criminal Code.

Sentencing range. The article does not lay down a penalty. Under Article 66 the presence of one or two aggravating circumstances requires the penalty to be imposed in its upper half, and the presence of more than two, with no mitigating circumstance, permits the imposition of the penalty of the next higher degree in its lower half.

Elements of the offence

That the circumstance be expressly provided for, since the list of Article 22 is exhaustive and does not admit an application by analogy to the detriment of the accused.
That the circumstance has not already been taken into account in the description of the specific offence, in accordance with the rule of Article 67.
In the case of treachery, that the offence be one against persons and that the means employed eliminate the possibility of defence.
In the case of recidivism, an enforceable prior conviction for an offence of the same Title and of the same nature, whose record has not been and need not be cancelled.

Defence strategy

Cancellation of criminal records. Recidivism does not operate where the record has been cancelled or ought to have been cancelled. The calculation of the periods of Article 136, counted from the extinction of the penalty, is a technical operation which frequently removes the circumstance from the case.

Prohibition of double assessment. Article 67 prevents a circumstance which the legislature has already taken into account in the description of the offence from operating again as an aggravation. Identifying that overlap is the first examination to be made of any aggravated charge.

Treachery and the possibility of defence. Treachery requires the elimination of the possibility of defence and not merely a surprise attack. The forensic reconstruction, the position of the parties and the sequence of the injuries are the material upon which the circumstance is contested and, where appropriate, reduced to abuse of superiority.

Evidence of the discriminatory motive. Number 4 requires a motive and not merely a result. The absence of expressions, of prior conduct or of any link between the conduct and the protected characteristic prevents the aggravation, which cannot be inferred from the identity of the victim alone.

Are you under investigation or facing charges in Spain? Société Juridique acts for foreign nationals throughout Spain, with offices in Alicante and Madrid and a 24-hour custody line. +34 669 30 21 13 or enquire online.

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.

Paseo De La Castellana 216 8º 28046 Madrid

Alicante – Playa de San Juan Av. Ansaldo 31, local 16, 03540 Alicante

Londres: 20 Wenlock Road, N1 7GU, Reino Unido

París: 72 Faubourg St Honoré, 75008, Francia

info@societejuridique.com

Agenda una Consulta por Videollamada

SERVICIOS

ENLACES

865776086

669302113

Société de Conseil Juridique et Expert es un despacho de abogados con sedes en Madrid, Alicante, Londres y París, especializado en defensa y acusación penal, delitos económicos y corporativos y derecho tecnológico. Trabajamos con orientación estratégica en procedimientos penales complejos, propiedad intelectual y análisis forense avanzado, y prestamos consultoría jurídica, compliance y escudos de protección a particulares y empresas. Atendemos desde Alicante y Madrid, con consulta online en toda España y asistencia al detenido 24 horas. Resuelva sus dudas en las preguntas frecuentes o solicite una primera consulta.

Sedes y delegaciones: Alicante·El Campello·Madrid
Tambien actuamos en: San Juan de Alicante·Benidorm·Elche·Torrevieja·Orihuela·Alcoy·San Vicente·Elda·Denia·Villajoyosa·Villena·Novelda·Ibi·Murcia

Defensa por delitos: Alcoholemias·Robos y hurtos·Lesiones·Agresión sexual·Amenazas·Okupas·Homicidios·Antecedentes penales

International: English-speaking criminal lawyer in Alicante · Avocat pénaliste francophone à Alicante