Article 109 Spanish Criminal Code: compensation for harm

Frequently asked questions

What effect does the application of Article 109 of the Spanish Criminal Code produce?

The provision imposes no penalty: it creates the civil obligation to repair under Articles 110 and following, enforceable within the criminal proceedings unless the civil action is expressly reserved.

What does Article 109 of the Spanish Criminal Code provide on the content of the obligation?

An act defined by law as an offence, even where criminal liability is excused in the Article 118 cases. Damage and losses actually caused and proven; the offence does not presume them. A causal link between the act and the loss claimed. The injured party’s right to choose between the criminal and the civil route, with the effects of reserving the action.

What defence issues arise under Article 109 of the Spanish Criminal Code?

Demanding proof of the loss. Civil liability is not automatic: the amount claimed must be proved by expert evidence, invoices or scales. Contesting quantum is compatible with any strategy on guilt. Challenging causation. Only harm flowing from the act on trial is repaired. Pre-existing, remote or victim-attributable losses must be excluded from the civil award. Using reparation as mitigation. Payment or deposit before trial triggers the Article 21.5 mitigating circumstance and weighs in suspension decisions; well-planned reparation pays on both fronts. Considering the reservation of the action. Reserving the civil claim allows the compensation debate to proceed with fuller evidence before the civil courts, which at times suits the accused as much as the victim.

Is the English text of Article 109 of the Spanish Criminal Code official?

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.