Article 195 Spanish Criminal Code: Failure to Render Assistance

Article 195 of the Spanish Criminal Code punishes the failure to assist a person who is helpless and in manifest and serious danger, where assistance could have been given without risk. The basic penalty is a fine, but where the person in danger became so through an accident caused by the very person who then failed to help, the penalty becomes imprisonment: six to eighteen months where the accident was fortuitous, and six months to four years where it resulted from negligence. This is the provision that operates alongside article 382 bis in road accident cases, and the two are frequently charged together.

Wording of Article 195 of the Spanish Criminal Code

Elements of the offence

1. A person who is helpless, meaning without the means of obtaining assistance from another source at that moment.
2. A manifest and serious danger to life or physical integrity, apparent to any observer. A doubtful or merely potential risk does not suffice.
3. The possibility of assisting without risk to the accused or to third parties. The duty does not extend to acts of heroism, and the alternative duty in paragraph 2 is satisfied by calling the emergency services.
4. Knowledge of the situation of danger. This is where most cases are decided, because the duty cannot arise from a danger the accused did not perceive.

Defence strategy

The person was not helpless. The duty exists only where the person cannot obtain assistance otherwise. Where others were already present and attending, where the emergency services had been called by someone else, where the incident occurred in a busy street or in licensed premises with staff on duty, the element of helplessness is absent. The defence documents who else was present through the emergency service call records and the recordings from the premises, which fix the exact time at which help arrived.

Absence of manifest and serious danger. The danger must be apparent. A person who appeared to be intoxicated and asleep, a fall from which the person stood up unaided, or a collision after which the other driver spoke normally and declined assistance do not present a manifest and serious danger to the observer, whatever the subsequent medical outcome turns out to have been. The forensic evidence on the progression of the injuries is used to show what was observable at the time rather than what was later diagnosed.

Assistance was in fact rendered, including by telephone. Paragraph 2 makes the urgent summoning of help an adequate discharge of the duty. Calling the emergency services, asking a third party to call, sounding the horn to attract attention or waiting until an ambulance arrived all satisfy the article, and the records of the emergency service and the telephone traffic ordinarily settle the point. This material must be requested early, as call records are retained for limited periods.

Separating the accident from the omission. Where paragraph 3 is charged, the sentencing bracket depends on whether the accident was fortuitous or negligent. Establishing that the collision was unavoidable places the case in the lower bracket even where the failure to assist cannot be denied. The defence also examines whether the offence has been charged twice over, since the conduct of leaving the scene is punished by article 382 bis and the two provisions cannot both absorb the same omission.

• Road accidents and negligent driving
• Article 382 bis: leaving the scene of an accident
• Article 152: bodily harm by negligence
• 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.