Article 138 Spanish Criminal Code: Homicide

Article 138 of the Spanish Criminal Code contains the basic offence of unlawful killing, punished with imprisonment of ten to fifteen years. Spanish law separates homicide from murder: murder under article 139 requires one of four specific circumstances, and where none of them is present the killing is homicide under this article. The distinction is worth years of imprisonment and is the first question examined in any defence. The article also provides for an increase by one degree where the killing is accompanied by an assault on authority or by one of the circumstances of article 140.

Wording of Article 138 of the Spanish Criminal Code

Elements of the offence

1. The death of a person, causally attributable to the conduct of the accused. The forensic report on the cause of death is therefore the central document in the file.
2. Intent to kill, or acceptance of death as a probable consequence of the conduct. Spanish law admits eventual intent, so the deliberate creation of a serious risk of death may suffice.
3. The absence of the four circumstances of article 139. Their presence converts the offence into murder, with a range of fifteen to twenty-five years.
4. Unlawfulness. Self-defence, and the excessive but honest exercise of it, operate on this element rather than on the intent.

Defence strategy

The intent to kill. The most frequent and most valuable argument is not that the accused did not cause the death but that the intent was to injure rather than to kill. The distinction is drawn from objective indicators: the part of the body struck, the nature and length of the weapon, the number and force of the blows, the words spoken, and whether the accused ceased of his own accord or was restrained. A finding of intent to injure moves the case to articles 147 to 150 and reduces the exposure by many years, so this analysis is prepared with an independent forensic assessment of the wound track and of the mechanism of death.

Self-defence and its partial form. Where the killing occurred in the course of an aggression by the deceased, article 20.4 of the Criminal Code affords a complete defence if the aggression was unlawful, the means of defence were rationally necessary and there was no sufficient provocation. Where one requirement is missing, the partial defence applies and reduces the sentence by one or two degrees. The argument is built on the injuries found on the accused, the position of the bodies, the origin of the weapon and the accounts of the sequence of events, and it must be advanced consistently from the first statement.

Causation and intervening factors. Where death followed some time after the injury, the defence examines whether it was caused by the injury itself or by an intervening factor such as a pre-existing condition, a hospital-acquired infection or a failure in treatment. Spanish law does not require the accused to answer for a result that lies outside the risk created, and in these cases the clinical records are examined in full rather than through the summary in the autopsy report.

Attempt, withdrawal and the degree of execution. Where the death did not occur, the reduction for attempt depends on how far the execution progressed and on the danger actually created, and voluntary withdrawal before the result excludes liability for the attempt altogether under article 16. Where the accused summoned assistance, applied pressure to the wound or drove the victim to hospital, that conduct is placed at the centre of the case, because it bears both on withdrawal and on the mitigating circumstance of reparation.

• Homicide defence in Spain
• Article 139: murder
• Article 147: bodily harm
• Spanish-language entry

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.