Article 5 Spanish Criminal Code: the culpability principle

Article 5 of the Spanish Criminal Code enshrines the culpability principle: no one may be punished unless the act is attributable to them at least by way of negligence. It rules out any form of strict or result-based criminal liability under Spanish law.

Wording of Article 5 of the Spanish Criminal Code

Scope of the principle

1. Intent, meaning knowledge and will to carry out the offence, as the ordinary basis of liability.
2. Negligence as the exceptional basis, punishable under Article 12 only where the law expressly says so.
3. The prohibition of strict liability: pure accident generates no criminal responsibility.
4. Its connection with Articles 10 and 14, which complete the definition of the offence and the rules on mistake.

How the defence relies on it

Contesting intent. The prosecution must prove the mental element, not presume it. Inferences drawn from external facts can be met with counter-indications: ignorance of an essential fact, justified reliance on a third party or the apparent lawfulness of the transaction.

Reducing the charge to negligence. Where intent cannot be fully excluded, downgrading to negligence cuts the penalty drastically and, where no negligent form is defined, leads to acquittal.

Raising pure accident. A result produced despite due diligence is not punishable. Expert evidence on the foreseeability of the risk is the central tool here.

Pleading mistake under Article 14. An unavoidable mistake as to an element of the offence excludes liability; an avoidable one reduces it to negligence. Both are direct applications of this principle.

• Article 14: mistake of fact and of law
• Article 62: sentencing for attempts
• Article 21: mitigating circumstances
• Spanish Criminal Code article by article

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.