Art. 138 CP: Homicide in Spain · Penalties of 10-15 Years (2026 Guide)
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listIn this article
lightbulbKey Takeaways
- check_circlePenalty: 10 to 15 years
- check_circleIntentional homicide
- check_circleSelf-defence
- check_circleThe difference from murder
Article 138 of the Criminal Code defines intentional homicide as the act of killing another person with intent. It is the basic offence among crimes against life and carries one of the most serious penalties in our system: 10 to 15 years in prison. Our criminal lawyers experienced in homicide in Madrid can help you with this type of situation.
Penalty and Aggravated Forms
In addition to the basic offence, Art. 138.2 provides for the penalty raised by one degree (12 years and 6 months to 15 years) if the victim is under 16, a vulnerable person, or if the act follows an offence against sexual freedom.
Negligent Homicide (Art. 142)
Not every killing is intentional. If the death is caused by gross negligence (e.g. a reckless traffic accident, a flagrant medical error), we speak of homicide by gross negligence, with penalties of 1 to 4 years. If the negligence is "less serious", the penalty is a fine. The work of the defence is vital to reduce the classification from intent (10-15 years) to negligence (1-4 years), by showing the absence of an intention to kill.
Keys to the Defence in Homicide Cases
At trial, the legal battle usually focuses on three issues:
- "Animus necandi" vs "animus laedendi": did the perpetrator want to kill or only to injure? If we show there was only an intention to injure, the penalty is drastically reduced (an offence of bodily harm in concurrence with negligent homicide).
- Forensic reconstruction: the trajectory of the shots, the force of the impacts and the autopsy reports are vital to determine whether there was an intention to kill.
- Grounds of justification: we carefully analyse self-defence, insurmountable fear and transient mental disorder.
Homicide or Murder?
The key difference is the presence of treachery (attacking without risk to the perpetrator), cruelty (increasing the suffering) or payment/reward. If these elements are absent, we are dealing with Art. 138 (homicide), not Art. 139 (murder).
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Frequently asked questions
What penalty does homicide under article 138 CP carry?expand_more
Intentional homicide is punished with imprisonment of 10 to 15 years (art. 138 CP). The penalty is imposed in its upper half when the victim is under 16 or especially vulnerable, or when the homicide follows an offence against sexual freedom.
What is the difference between homicide and murder?expand_more
Homicide (art. 138) is killing another person without qualifying circumstances. Murder (art. 139) requires treachery, cruelty, payment or reward, or being committed to facilitate another offence, and is punished with imprisonment of 15 to 25 years.
What is negligent homicide?expand_more
It is causing death without intent, through negligence (art. 142 CP). The penalty is imprisonment of 1 to 4 years if the negligence is gross, which is frequent in traffic and workplace accidents and in medical negligence. It is far lower than the penalty for intentional homicide.
How is a homicide charge defended?expand_more
By analysing intent (the intention to kill as opposed to the intention to injure), self-defence (art. 20.4 CP), mitigating circumstances (heat of passion, confession, reparation) and reclassifying the act as a less serious offence (negligent homicide or bodily harm resulting in death) when the facts allow it.