Article 109 Spanish Criminal Code: compensation for harm

Article 109 of the Spanish Criminal Code opens the rules on civil liability arising from crime: every act defined by law as an offence obliges the offender to repair the damage caused, and the injured party may choose to claim before the civil courts instead.

Wording of Article 109 of the Spanish Criminal Code

Content of the obligation

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

Defence issues

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.

• Article 116: persons civilly liable
• Article 120: subsidiary civil liability
• 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.