Article 62 Spanish Criminal Code: sentencing for attempts

Article 62 of the Spanish Criminal Code sets the penalty for attempts: one or two degrees below that of the completed offence, according to the danger inherent in the attempt and the stage of execution reached. The choice between one and two degrees is one of the arguments with the greatest impact on the final sentence.

Wording of Article 62 of the Spanish Criminal Code

Criteria for determination

1. An attempt under Article 16: outward acts commencing execution without the result occurring for reasons independent of the perpetrator’s will.
2. The danger inherent in the attempt as the first sentencing criterion.
3. The degree of execution reached, distinguishing complete from incomplete attempts.
4. A reasoned choice of the reduction, required in the judgment.

Defence strategy

Arguing for the two-degree reduction. Incomplete attempts and objectively low-danger conduct justify the double reduction. The distance between one and two degrees can amount to years of prison, so this plea deserves its own evidential effort.

Raising voluntary withdrawal. Voluntary desistance under Article 16.2 exempts from punishment for the attempted offence. Drawing the line between withdrawal and a failed attempt is often the line between conviction and acquittal.

Contesting the start of execution. Preparatory acts are unpunished save express provision. Placing the conduct before execution began excludes the attempt itself.

Demanding reasons. Choosing the single-degree reduction without reasoning on danger and stage of execution is reviewable on appeal and cassation.

• Article 16: attempts and withdrawal
• Article 21: mitigating circumstances
• Article 66: sentencing rules
• Spanish Criminal Code article by article

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.