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Article 23 Spanish Criminal Code: kinship as a mixed circumstance
Quick answerArticle 23 of the Spanish Criminal Code sets out kinship as a mixed circumstance: it may mitigate or aggravate liability, according to the nature, motives and effects of the offence, where the victim is or has been the offender’s spouse or a person stably linked by a comparable emotional relationship, or an ascendant, descendant or sibling of the offender or of their spouse or partner.
It is the only circumstance in the Criminal Code that can work in both directions. Applying it requires specific reasons explaining why the relationship aggravates or mitigates in the particular case, and treating it automatically as an aggravator is one of the most frequent grounds of appeal.
Also cited as: article 23 Spanish Criminal Code · art. 23 CP · Spanish Penal Code article 23 · artículo 23 del Código Penal.
Wording of the provision
It is a circumstance that may mitigate or aggravate liability, according to the nature, motives and effects of the offence, that the victim is or has been the spouse of the offender, or a person who is or has been stably linked to them by a comparable emotional relationship, or is an ascendant, descendant or sibling, by blood or adoption, of the offender or of their spouse or partner.
Consolidated text published by the Spanish Official State Gazette, Organic Act 10/1995 of 23 November, the Criminal Code. Unofficial English rendering; the Spanish text is the authentic one.
Sentencing range. A modifying circumstance. Treated as an aggravator it means the penalty is imposed in its upper half under Article 66; as a mitigating factor, in its lower half.
Key facts
| Nature | A mixed circumstance: it may operate as an aggravating or as a mitigating factor, depending on the case. |
|---|---|
| Relationships covered | Spouse or former spouse, a person stably linked or formerly linked by a comparable emotional relationship, and ascendants, descendants or siblings by blood or adoption of the offender or of their spouse or partner. |
| Test | The nature, motives and effects of the offence. It does not operate automatically from the mere existence of the tie. |
| As an aggravator | Usual in offences against the person, where the tie intensifies the wrongfulness of the conduct. |
| As a mitigating factor | It has been applied in property offences within the family, where the relationship explains the act and reduces the reproach. |
| No double assessment | It cannot be applied where kinship is already an element of the offence charged, under Article 67. |
| Related bar to liability | In certain property offences between relatives, Article 268 provides a bar excluding criminal liability. |
Elements and scope
- Existence of one of the relationships described, present or past, established by documentary evidence.
- Assessment of the nature of the offence committed.
- Assessment of the motives that drove the offender.
- Assessment of the effects of the offence on the victim and on the relationship.
Points of application
It cannot be applied automatically. The provision requires weighing nature, motives and effects. Applying the aggravator on the bare fact of the tie, without further reasoning, is a failure to give reasons open to appeal.
Relationship with domestic and gender violence. Where the offence already builds in the partner relationship as an element, kinship cannot also increase the penalty. This is the most frequent instance of prohibited double assessment.
The relationship may be a past one. The text expressly covers former spouses and persons formerly linked by a comparable emotional relationship, without requiring current cohabitation.
Defence strategy
Checking the tie and whether it subsists. The supporting documents and the date of separation should be examined, since applying the provision requires the tie to appear in the findings of fact.
Arguing the mitigating direction. In property offences or in contexts of prolonged family conflict, the circumstance should be argued as mitigating, relying on the motives and the effects of the act.
Policing double assessment. If the offence charged already takes the relationship into account, the aggravator must be excluded under Article 67, with the resulting reduction of the sentencing range.
Defence in this area
If you or your company are facing proceedings in this area, the firm provides defence and prosecution in Alicante and Madrid, with 24-hour assistance to detained persons.
Are you under investigation or facing charges in Spain? Société Juridique acts for foreign nationals throughout Spain, with offices in Alicante and Madrid and a 24-hour custody line. +34 669 30 21 13 or enquire online.
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This page is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the case and requires review of the file by a lawyer. The English rendering of the legal text is unofficial.
Last reviewed: 21 September 2026.
Frequently asked questions
What is kinship as a mixed circumstance?
The circumstance in Article 23 of the Criminal Code, which may mitigate or aggravate liability according to the nature, motives and effects of the offence where the victim is or has been linked to the offender by marriage, a comparable emotional relationship or kinship.
Does it apply automatically as an aggravator?
No. The provision requires the nature, motives and effects of the offence to be weighed. Automatic application, without reasoning, is a failure to give reasons that may found an appeal.
Does it cover unmarried and former partners?
Yes. The text refers to a person who is or has been a spouse and to one who is or has been stably linked by a comparable emotional relationship, without requiring current cohabitation.
When does it mitigate liability?
It has been applied as a mitigating factor in property offences within the family and in situations where the relationship explains the act and reduces the reproach.
Can it apply in gender-violence cases?
Not where the offence charged already builds in the partner relationship as an element, since that would amount to the double assessment prohibited by Article 67 of the Criminal Code.
How does it relate to Article 268?
Article 268 provides a bar to liability for certain property offences between relatives, which excludes criminal liability and operates independently of this circumstance.
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