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Article 67 Spanish Criminal Code: inherent circumstances
Quick answerArticle 67 of the Spanish Criminal Code excludes the sentencing rules from applying to aggravating or mitigating circumstances that the law already took into account in defining or punishing the offence, and to those so inherent in the offence that without them it could not be committed. It is the prohibition of double assessment.
A short provision of considerable practical weight. Relying on it removes aggravating factors that the prosecution piles on top of the offence charged, narrowing the sentencing range, and it is one of the most effective grounds of appeal against judgments that count the same fact twice.
Also cited as: article 67 Spanish Criminal Code · art. 67 CP · Spanish Penal Code article 67 · artículo 67 del Código Penal.
Wording of the provision
The rules in the preceding Article shall not apply to aggravating or mitigating circumstances that the Law has taken into account in defining or punishing an offence, nor to those so inherent in the offence that without them it could not be committed.
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 sentencing provision. It carries no penalty of its own: it disapplies the rules in Article 66 as regards circumstances already built into the offence.
Key facts
| Function | To bar the same circumstance being counted twice, first as an element of the offence and then as a sentencing factor. |
|---|---|
| First situation | Circumstances taken into account by the law in defining the offence, that is, built into its description. |
| Second situation | Circumstances taken into account in punishing the offence, that is, underpinning an aggravated or reduced form. |
| Third situation | Circumstances inherent in the offence, without which it could not be committed. |
| Relationship with Article 66 | The sentencing rules in Article 66 are displaced as regards those circumstances. |
| Circumstances affected | Both the aggravating factors in Article 22 and the mitigating ones in Article 21, and the mixed circumstance of kinship. |
Elements and scope
- Identify the circumstance the prosecution seeks to apply.
- Check whether that same fact forms part of the description of the offence charged or underpins the aggravated form.
- Consider whether the circumstance is inherent in the offence, so that without it the offence could not be committed.
- Exclude the circumstance and recalculate the sentencing range under Article 66.
Points of application
Examples in practice. The use of a weapon cannot be counted both as the aggravated form of bodily harm in Article 148 and as a general aggravating factor. The treachery that turns homicide into murder does not also operate as the aggravator in Article 22(1). The breach of trust inherent in unfair administration is not applied separately.
Inherence may be express or implied. Express where the offence mentions the circumstance; implied where the offence cannot be committed without it. The second case calls for closer analysis and requires explaining why the conduct necessarily presupposes that circumstance.
Effect on the sentencing range. Once the aggravator is excluded, the penalty no longer has to be imposed in its upper half. Where several aggravators were alleged, excluding one may also prevent the next higher penalty being imposed.
Defence strategy
A systematic review in the defence submissions. Each circumstance relied on by the prosecution should be set against the description of the offence. It is a pure point of law, independent of the evidence, and can be argued even where the facts are admitted.
Ground of appeal. A breach of Article 67 is raised as an error of law in the application of substantive criminal provisions, both on appeal and in cassation.
Watch the aggravated forms. The most frequent error is applying the general aggravator where the same fact has already determined the classification under the aggravated form. Spotting it usually reduces the sentence sought appreciably.
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 does Article 67 of the Spanish Criminal Code provide?
That the sentencing rules in Article 66 do not apply to aggravating or mitigating circumstances already taken into account by the law in defining or punishing the offence, nor to those inherent in the offence, without which it could not be committed.
What is the prohibition of double assessment?
The rule preventing the same fact from being counted twice against the defendant: first to classify the act and then to increase the penalty through a sentencing factor.
Can treachery be applied as an aggravator in a murder case?
No. Treachery is the element that turns homicide into murder, so it cannot also be counted as the general aggravating circumstance in Article 22.
What happens when an aggravator is excluded?
The sentencing range is recalculated under Article 66. With no aggravating factors, the penalty need not be imposed in its upper half, which in practice means an appreciable reduction.
Does the argument depend on the evidence?
No. It is a pure point of law that can be made even where the facts are not in dispute, and it is a ground of appeal for error in applying the criminal provision.
Does it also affect mitigating circumstances?
Yes. The provision refers to aggravating or mitigating circumstances, so a mitigating factor already built into the offence cannot be applied separately either.
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