Article 21 Spanish Criminal Code: Mitigating circumstances

Article 21 lists the mitigating circumstances: incomplete grounds of exemption, serious addiction, states of passion, confession before knowing of the proceedings, reparation of the harm, extraordinary and undue delay, and any other circumstance of analogous significance.

Wording of Article 21 of the Spanish Criminal Code

Elements of the offence

1. In number 1, an incomplete ground of exemption, that is, one in which the essential requirement is present but not all the remaining requirements.
2. In number 2, a serious addiction to the substances mentioned in Article 20.2 which operated as the cause of the conduct.
3. In numbers 4 and 5, respectively, a confession made before knowing that proceedings are directed against the accused, and reparation of the harm carried out at any time before the trial hearing.
4. In number 6, an extraordinary and undue delay in the proceedings which is not attributable to the accused and is disproportionate to the complexity of the case.

Defence strategy

Reparation of the harm as a very qualified circumstance. Number 5 is available at any time before the trial hearing and does not require full reparation, only a genuine effort proportionate to the means of the accused. Where the reparation is substantial, the case law admits its treatment as very qualified, which opens the reduction of one or two degrees under Article 66.1.2.

Confession and its timeliness. Number 4 requires the confession to precede knowledge that proceedings are directed against the accused. Where that condition is not met, the analogous mitigating circumstance of number 7 is habitually available where the acknowledgement has materially facilitated the investigation.

Extraordinary and undue delay. Number 6 calls for the identification of the specific periods of inactivity, their duration and the absence of any procedural conduct of the defence which caused them. A chronological schedule of the file is the technical instrument which sustains this circumstance and, where the delay is exceptional, its treatment as very qualified.

Addiction as distinct from mere consumption. Number 2 requires a serious addiction operating as the cause of the conduct, and not mere consumption at the time of the act. Clinical documentation of the dependence, of the treatment followed and of the connection with the offence charged is what distinguishes this circumstance from a simple personal circumstance.

• Article 20 CP: grounds excluding criminal liability
• Article 22 CP: aggravating circumstances
• Suspension of sentence in Spain
• Mitigating and aggravating circumstances: questions

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.