Art. 138
Homicide, article 138
Intentionally causing the death of another. Prison of ten to fifteen years.
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Homicide and Manslaughter · Alicante · Madrid · All Spain
Homicide and Manslaughter Defence Lawyer in Spain
The distance between reckless homicide and murder in Spanish law is measured in decades.
Which article applies is a question of proof, and it is the whole case.
In brief. Defence in Spanish homicide, murder and reckless death cases: intent, self-defence, jury trial and civil liability. English-speaking criminal lawyers.
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The gradations, from recklessness to murder
Spanish law separates causing death into distinct offences with very different penalties:
- Homicide, article 138. Intentionally causing the death of another. Prison of ten to fifteen years.
- Murder, article 139. Homicide with treachery, for a price, with deliberate increase of suffering, or to facilitate another offence. Prison of fifteen to twenty-five years, and permanent reviewable imprisonment in the cases of article 140.
- Reckless homicide by gross negligence, article 142. Prison of one to four years, with specific provision for deaths caused by driving and by firearms.
- Reckless homicide by less serious negligence, article 142.2. A fine, and prosecuted only on complaint of the victim family.
Intent is the dividing line, and Spanish courts work with the concept of eventual intent, meaning that a person who acts knowing that death is a highly probable consequence can be convicted of homicide even without desiring the result. Disputing the boundary between eventual intent and gross recklessness is therefore the central battleground in many files, and it is fought on the forensic evidence: the mechanism of the injuries, the weapon, the number and location of blows, and the conduct after the event.
Offences and penalties
What the Criminal Code actually punishes
Art. 139
Murder, article 139
Homicide with treachery, for a price, with deliberate increase of suffering, or to facilitate another offence. Prison of fifteen to twenty-five years,
Art. 142
Reckless homicide by gross negligence, article 142
Prison of one to four years, with specific provision for deaths caused by driving and by firearms.
Art. 142
Reckless homicide by less serious negligence, article 142.2
A fine, and prosecuted only on complaint of the victim family.
Defence
Defences and mitigation that change the outcome
Complete self-defence under article 20.4 leads to acquittal. Incomplete self-defence under article 21.1, where the response exceeded what was necessary but the aggression was real, reduces the penalty by one or two degrees, which in a homicide file can mean the difference between fifteen years and five.
Other lines that regularly matter are mental disorder under articles 20.1 and 21.1, intoxication and serious addiction under articles 20.2 and 21.2, intense emotional disturbance under article 21.3, voluntary confession under article 21.4, and repair of the damage under article 21.5. Each requires evidence: a psychiatric report, toxicology, or documented payment to the family.
Where the death occurred in a fight, the defence also examines the causal chain, including whether medical treatment or a pre-existing condition contributed, and whether the injury inflicted was objectively capable of causing death. These are expert questions and they need an independent forensic report rather than cross-examination alone.
Defence
Procedure: the jury, the timetable and the family
Murder under article 139 is tried by a jury under Organic Act 5/1995, which changes the preparation entirely: the questions put to the jury are drafted and negotiated, the evidence has to be presented in a way that a lay panel can follow, and the pre-trial hearing on admissibility carries more weight than in an ordinary trial.
These proceedings are long, with pre-trial detention the norm, and the family of the deceased will normally exercise a private prosecution seeking a heavier classification than the public prosecutor. That means responding to two accusations with different theories.
Civil liability is quantified by reference to the scale used in traffic cases, and in fatal cases the figures are substantial. Negotiating and documenting compensation, where the client circumstances allow it, is part of the criminal strategy and not an afterthought.
Framework
Homicide, murder and negligent killing
Article 138 of the Criminal Code punishes homicide, the killing of another person, with imprisonment of ten to fifteen years. Article 139 defines murder, an aggravated form that arises where there is treachery (alevosía), payment or reward, particular cruelty or the aim of facilitating another offence, with substantially higher penalties. Article 142 punishes negligent killing where there is gross negligence.
The distinction between these offences, and between intentional and negligent conduct, is the axis of the whole case, because it determines the range within which any sentence will fall.
Aggravation
The aggravating circumstances of murder
Whether a death amounts to murder rather than homicide often turns on contested facts, above all the presence of treachery, which requires that the victim was deprived of any real chance of defence. Cruelty and the other qualifying circumstances are similarly fact-sensitive.
Because a single finding can move a case into the far more serious bracket of murder, the defence concentrates closely on how the events actually unfolded and on the evidence said to establish each qualifying circumstance.
Defence
Defences and correct classification
The defence examines the possible existence of self-defence or another justification, the real intention of the accused, and the boundary between intent and negligence. The reconstruction of the sequence of events, supported by forensic and witness evidence, is decisive.
A correct classification of the facts can be the difference between a conviction for murder, for homicide or for a negligent offence, with very different consequences for the sentence.
How we help
How we act
We conduct these cases, among the most serious in the legal system, with the greatest care in the reconstruction of the facts, in the expert and witness evidence and in the protection of every procedural guarantee.
We act both in defence and in the representation of victims and their families, adapting the strategy to the role and to the specific circumstances of each case.
Attempt
Attempted homicide and the intention to kill
Where the victim survives, the central question is often whether the accused acted with the intention to kill (animus necandi) or only to injure. The distinction between attempted homicide and an offence of bodily harm turns on that intention, inferred from the weapon used, the part of the body targeted and the surrounding circumstances.
This is one of the most contested issues in these cases, because it determines whether the accused faces the framework for homicide or the far lower range for injuries.
Mitigation
Mitigating factors and reparation
The Criminal Code recognises mitigating factors that can significantly reduce the sentence, including confession before the person knows of the proceedings, and reparation of the harm to the victim. Their presence is assessed on the specific facts.
We identify and evidence any applicable mitigating factor, since in this area even a single degree of reduction can mean years of difference in the sentence.
Civil claim
Compensation to the victim’s family
Criminal proceedings for a death also determine the civil compensation owed to the victim’s relatives, calculated by reference to established scales and to the circumstances of the case.
We handle this civil dimension whether we act for the defence or for the family, because it is an integral part of the proceedings and often a central concern for those affected.
Related
Related pages
FAQ
What clients ask us most
My relative has been arrested and accused of causing a death. What happens first
A hearing within seventy-two hours, at which pre-trial detention will almost certainly be requested. That hearing is not the time to explain the events; it is the time to contest the classification and the necessity of detention.
Can a death caused in a traffic accident be a criminal offence
Yes. Article 142 covers deaths caused by gross negligence in driving, with an additional driving disqualification, and the aggravated form applies where the driver was under the influence or driving at excessive speed.
What is permanent reviewable imprisonment
It is the sentence in article 140 for the most serious murders, subject to review after a minimum period. It applies in limited circumstances, and whether those circumstances exist is itself a matter for argument.
Does a confession help
It can, through the mitigating circumstance of article 21.4, but only if made before the person knows the proceedings have begun, and only after advice. An unadvised admission commonly does more harm than the mitigation is worth.
Speak to a criminal lawyer
The earlier we see the file, the more can be done with it.
Criminal defence in English before the courts of Alicante, Madrid and the whole of Spain. Tell us what has happened and we will tell you what the real exposure is.
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