Article 5 Spanish Criminal Code: the culpability principle

Frequently asked questions

What effect does the application of Article 5 of the Spanish Criminal Code produce?

The provision imposes no penalty of its own: it makes intent or negligence a precondition of any punishment, so that harm caused without either falls outside criminal law.

What does Article 5 of the Spanish Criminal Code provide on the scope of the principle?

Intent, meaning knowledge and will to carry out the offence, as the ordinary basis of liability. Negligence as the exceptional basis, punishable under Article 12 only where the law expressly says so. The prohibition of strict liability: pure accident generates no criminal responsibility. Its connection with Articles 10 and 14, which complete the definition of the offence and the rules on mistake.

How does the defence rely on Article 5 of the Spanish Criminal Code?

Contesting intent. The prosecution must prove the mental element, not presume it. Inferences drawn from external facts can be met with counter-indications: ignorance of an essential fact, justified reliance on a third party or the apparent lawfulness of the transaction. Reducing the charge to negligence. Where intent cannot be fully excluded, downgrading to negligence cuts the penalty drastically and, where no negligent form is defined, leads to acquittal. Raising pure accident. A result produced despite due diligence is not punishable. Expert evidence on the foreseeability of the risk is the central tool here. Pleading mistake under Article 14. An unavoidable mistake as to an element of the offence excludes liability; an avoidable one reduces it to negligence. Both are direct applications of this principle.

Is the English text of Article 5 of the Spanish Criminal Code official?

Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Organic Law 10/1995 of 23 November, the Spanish Criminal Code.