Article 66 Spanish Criminal Code: Rules for the application of the penalty

1. In the application of the penalty, in the case of intentional offences, judges and courts shall observe, according to whether or not mitigating or aggravating circumstances are present, the following rules:

1. Where only one mitigating circumstance is present, they shall apply the penalty in the lower half of that laid down by law for the offence.

2. Where two or more mitigating circumstances are present, or one or several very qualified ones, and no aggravating circumstance is present, they shall apply the penalty lowered by one or two degrees from that laid down by law, having regard to the number and the magnitude of those mitigating circumstances.

3. Where only one or two aggravating circumstances are present, they shall apply the penalty in the upper half of that laid down by law for the offence.

4. Where more than two aggravating circumstances are present and no mitigating circumstance is present, they may apply the penalty of the next higher degree to that laid down by law, in its lower half.

5. Where the aggravating circumstance of recidivism is present with the qualification that the offender, at the time of offending, had been convicted by an enforceable judgment of at least three offences covered by the same Title of this Code, provided that they are of the same nature, they may apply the penalty of the next higher degree to that provided by law for the offence in question, taking into account the preceding convictions and the seriousness of the new offence committed.

For the purposes of this rule, criminal records which have been cancelled or which ought to have been cancelled shall not be counted.

6. Where neither mitigating nor aggravating circumstances are present, they shall apply the penalty laid down by law for the offence committed, to the extent which they consider appropriate, having regard to the personal circumstances of the offender and to the greater or lesser seriousness of the act.

7. Where mitigating and aggravating circumstances are present, they shall assess and offset them rationally for the individualisation of the penalty. Where a qualified basis of mitigation persists, they shall apply the penalty of the next lower degree. Where a qualified basis of aggravation is maintained, they shall apply the penalty in its upper half.

8. Where judges and courts apply the penalty lowered by more than one degree, they may do so throughout its whole extent.

2. In minor offences and in negligent offences, judges and courts shall apply the rules according to their prudent discretion, without being bound by the rules prescribed in the preceding paragraph, save as provided for the types aggravated by repeated recidivism in minor offences.

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.