Article 139 Spanish Criminal Code: Murder

Article 139 of the Spanish Criminal Code defines murder as a killing accompanied by one of four circumstances: treachery, payment or reward, cruelty, or the purpose of facilitating another offence or preventing its discovery. The penalty is imprisonment of fifteen to twenty-five years, and where more than one of those circumstances is present the sentence is imposed in the upper half. Treachery, which covers the killing of a person unable to defend himself, is the circumstance alleged in the great majority of cases, and contesting it is the principal work of the defence.

Wording of Article 139 of the Spanish Criminal Code

Elements of the offence

1. A killing satisfying all the elements of homicide under article 138.
2. At least one of the four listed circumstances, each of which must be pleaded specifically and proved to the criminal standard.
3. For treachery, that the accused deliberately sought or exploited a situation in which the victim was unable to defend himself, whether by surprise, by ambush or because of the victim’s condition.
4. For cruelty, an increase in suffering that was both deliberate and unnecessary to the killing itself. A large number of wounds is not, in itself, cruelty.

Defence strategy

Contesting treachery. Treachery requires the elimination of any possibility of defence, deliberately sought or exploited. Where the killing followed a mutual confrontation, where the victim was aware of the risk, where there had been an argument immediately before, or where the victim was armed or accompanied, the circumstance fails and the case reverts to homicide, with a difference of at least five years at the bottom of the range. The argument is built from the sequence of the incident, the position and nature of the wounds and the accounts of any witnesses to the moments preceding the attack.

Cruelty distinguished from the mechanism of the killing. Cruelty requires suffering deliberately inflicted beyond what the killing required, and the case law insists that it be autonomous from the act of killing itself. Multiple wounds inflicted in rapid succession, wounds caused during a struggle, and injuries inflicted after death do not satisfy the circumstance. The defence relies on the forensic evidence of the sequence and timing of the injuries and on the vitality findings, which frequently show that the wounds relied on were inflicted after the fatal blow or in a single continuous episode.

Absence of the instrumental purpose. The fourth circumstance requires that the killing served to facilitate another offence or to conceal it. Where the other offence was already complete, where it was abandoned, or where the killing arose from a personal dispute that merely coincided with it, the circumstance is not made out. This requires a careful chronology of the events, since the prosecution habitually infers the purpose from the mere coincidence in time of the two offences.

Mental state, intoxication and the sentencing framework. Given the length of the sentences, the mitigating and partial defences carry exceptional weight here. Serious intoxication, a mental disorder, an intense emotional disturbance and, in appropriate cases, the reduction for an attempt each lower the bracket by one or two degrees. These arguments require expert psychiatric evidence commissioned early rather than a report obtained shortly before trial, and they are prepared alongside the material on the accused’s personal circumstances that governs the eventual review of the sentence.

• Murder and homicide defence in Spain
• Article 138: homicide
• Article 503 LECrim: pre-trial detention
• 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.