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Article 22 Spanish Criminal Code: Aggravating circumstances
Quick answerArticle 22 of the Spanish Criminal Code lists the aggravating circumstances: treachery, disguise or abuse of superiority, price or reward, discriminatory motives, cruelty, breach of trust, exploiting public office and recidivism. Applying one raises the penalty within the statutory range and requires the facts supporting it to appear in the findings of fact.
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.
Also cited as: article 22 Spanish Criminal Code · art. 22 CP · Spanish Penal Code article 22 · artículo 22 del Código Penal.
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.
Key facts
| Nature | Circumstances modifying criminal liability. They create no offence of their own but increase the penalty for the offence committed. |
|---|---|
| Sentencing effect | With a single aggravating circumstance the penalty is imposed in its upper half. With two or more, or one strongly qualified, the next higher penalty may be imposed under Article 66. |
| Evidential requirement | The facts underpinning the aggravation must appear in the findings of fact. Asserting them in the legal reasoning is not enough. |
| Discrimination aggravator | The fourth circumstance requires proof of the discriminatory motive, not merely of the context. It interacts with the hate offences in Article 510. |
| Recidivism | The eighth circumstance requires a previous final conviction for an offence of the same title and nature, with a record neither cancelled nor capable of cancellation under Article 136. |
| Compatibility | A circumstance already built into the offence charged cannot also be applied as an aggravator, by the prohibition of double assessment in Article 67. |
| When it must be raised | The prosecution must include it in its provisional submissions. Introducing it later without adversarial debate breaches the accusatorial principle. |
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.
Case law
Supreme Court judgment 1081/2024 of 27 November, Second Chamber, appeal 4429/2022. To apply the aggravating circumstance of recidivism the findings of fact must expressly state the date on which the earlier judgment became final, the offence for which it was handed down, the penalty imposed and the date on which it was actually served. Their absence from the findings breaches the right to effective judicial protection and the presumption of innocence and requires the aggravator to be set aside.
What this means for the defence. It is one of the most productive and least costly challenges. In every case counsel should check whether the criminal record allows those four points to be verified and whether the earlier conviction could have been cancelled under the periods in Article 136, since the mere fact that cancellation was available, even if never applied for, prevents the aggravator from being applied.
Defence in this area
If you or your company are facing proceedings in this area, the firm provides defence and prosecution in Alicante and Madrid, with 24-hour assistance to detained persons.
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.
- Article 20 CP: grounds excluding criminal liability
- Article 21 CP: mitigating circumstances
- Types of penalties in the Spanish Criminal Code
- Mitigating and aggravating circumstances: questions
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.
Last reviewed: 21 September 2026.
Frequently asked questions
What is the effect of an aggravating circumstance?
With a single aggravator the penalty is imposed in its upper half. With two or more, or with one strongly qualified aggravator, the court may impose the next higher penalty, under the sentencing rules in Article 66 of the Criminal Code.
What does the recidivism aggravator require?
A previous final conviction for an offence under the same title of the Criminal Code and of the same nature, with a record neither cancelled nor capable of cancellation. Supreme Court judgment 1081/2024 of 27 November further requires the findings of fact to state the date the judgment became final, the offence, the penalty imposed and the date it was served.
Can it apply where the record could have been cancelled?
No. It is enough that the earlier conviction could have been cancelled under the periods in Article 136 of the Criminal Code, even if cancellation was never applied for, for the aggravator to be unavailable.
How is a discriminatory motive proved?
Through objective elements that reveal it, such as words uttered during the events, the choice of victim or a pattern of earlier conduct. It is not enough that the victim belongs to a protected group, nor that the context suggests it.
Can the same circumstance be counted twice?
No. Where the circumstance is already built into the description of the offence charged, it cannot also be applied as an aggravator, by the prohibition of double assessment.
Must the aggravator be pleaded in the indictment?
Yes. The prosecution must include it in its provisional submissions so that it can be argued. Introducing it later, without an opportunity to respond, breaches the accusatorial principle and the rights of the defence.
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