Art. 138 CP: Homicide in Spain · Penalties of 10-15 Years (2026 Guide)
In this article
Key Takeaways
- Penalty: 10 to 15 years
- Intentional homicide
- Self-defence
- The difference from murder
Article 138 of the Spanish Criminal Code punishes intentional homicide — killing another person with intent — with 10 to 15 years in prison, rising where the victim is under 16, especially vulnerable, or the killing follows a sexual offence. It differs from murder (Art. 139 CP), which requires a qualifying circumstance such as treachery, cruelty or payment and carries 15 to 25 years, and from negligent homicide (Art. 142 CP), where death is caused without intent to kill and the penalty drops to 1 to 4 years for gross negligence, or a fine for less serious negligence. A defence typically turns on whether the accused intended to kill or only to injure, on possible grounds of justification such as self-defence, and on the forensic evidence establishing intent.
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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 (15 years and 1 day to 22 years and 6 months) where any circumstance of Art. 140.1 applies —the victim is under 16 or especially vulnerable, the act follows an offence against sexual freedom, or the offender belongs to a criminal group or organisation— or where the facts also amount to an assault on authority under Art. 550.
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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Official text: article 138 of the Spanish Criminal Code (BOE)
Frequently asked questions
What penalty does homicide under article 138 CP carry?
Intentional homicide is punished with imprisonment of 10 to 15 years (art. 138 CP). The penalty raised by one degree (15 years and 1 day to 22 years and 6 months, art. 138.2 CP) applies when the victim is under 16 or especially vulnerable, when the homicide follows an offence against sexual freedom committed on the victim, when the offender belongs to a criminal group or organisation, or when the facts also amount to an assault on authority under art. 550 CP.
What is the difference between homicide and murder?
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?
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?
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.
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This page is for information purposes only and does not constitute legal advice: every case requires individual assessment. How this content is produced and verified: editorial policy.