Article 139 Spanish Criminal Code: The Offence of Murder (2026)

Article 139 of the Spanish Criminal Code (CP) defines the most serious offence against life: murder (asesinato). It is not a separate way of killing but a qualified homicide: killing another person under any of the four circumstances the provision lists. The practical difference is enormous: from the 10 to 15 year range of homicide, the penalty jumps to 15 to 25 years in prison — and, in the cases of Article 140 CP, to reviewable permanent imprisonment. As criminal defence lawyers experienced in murder cases, we explain what Article 139 CP actually says and where these trials are won or lost.

What Article 139 CP Says

Article 139.1 CP imposes 15 to 25 years in prison on anyone who kills another person under any of these circumstances:

• 1. Treachery (alevosía): executing the attack in a way that secures the result and eliminates any risk arising from the victim's defence.
• 2. Payment, reward or promise: the contract killing.
• 3. Cruelty (ensañamiento): deliberately and inhumanly increasing the victim's pain.
• 4. Connection with another offence: killing to facilitate the commission of another offence or to prevent its discovery.

Article 139.2 CP adds an internal aggravation rule: where more than one of these circumstances is present, the penalty must be imposed in its upper half — 20 to 25 years. A single circumstance is enough to classify the killing as murder; any additional one raises the penalty.

Treachery: the Circumstance that Decides Most Trials

Article 22.1 CP defines it: employing in the execution means, methods or forms that tend directly or especially to secure it, without the risk to the perpetrator that might arise from the victim's defence. The case law requires an objective element — the manner of the attack must genuinely eliminate the victim's possibilities of defence — and a subjective one: the perpetrator must seek or knowingly exploit that defencelessness.

Three classic forms are distinguished: proditory treachery (the ambush, the trap, the betrayal), sudden or surprise treachery (the unexpected attack that prevents any defensive reaction) and treachery by helplessness (exploiting a victim who cannot defend themselves: a sleeping person, a young child, a person with a disability). In practice, the dispute over whether the attack was truly unexpected, or whether the victim retained any real capacity to react, decides whether the conviction is for homicide or for murder — up to 10 years of difference. We examine that borderline in our guide to the differences between homicide and murder in Spain.

Payment, Reward or Promise

This is the killing for hire: the perpetrator acts for consideration — economic or otherwise — whether already received (payment, reward) or expected (promise). The circumstance qualifies both the person who carries out the killing and the person who commissions it, the latter as instigator. It does not require the payment to have actually been made: it is enough that the promised consideration motivated the decision to kill.

Cruelty (Ensañamiento)

Article 139.1.3 CP describes it as killing while deliberately and inhumanly increasing the victim's pain. The case law demands an objective element — inflicting suffering unnecessary for causing death, while the victim is still alive and conscious — and a subjective element: a deliberate purpose of making the victim suffer, distinct from and additional to the intent to kill. The brutality of the attack or the number of wounds inherent in the dynamics of a killing is therefore not enough: injuries inflicted after death, or the mere repetition of blows, do not in themselves amount to cruelty. This is another technical front where a rigorous defence can bring the classification back to homicide.

Killing to Facilitate Another Offence or Prevent Its Discovery

The fourth circumstance covers the instrumental murder: death as a means to commit another offence (killing a guard to complete a robbery) or as a mechanism of impunity (killing the witness who could identify the perpetrator). What matters is the purposive connection between the killing and the other offence: the victim's life is placed at the service of a separate criminal goal, and that instrumentalisation is what justifies the harsher punishment.

Article 140 CP: When Murder Carries Reviewable Permanent Imprisonment

Article 140.1 CP raises the penalty to reviewable permanent imprisonment (prisión permanente revisable) where any of these circumstances is present:

• The victim is under 16 or a person who is especially vulnerable due to age, illness or disability.
• The killing is subsequent to a sexual offence committed by the perpetrator against the victim.
• The offence is committed by a member of a criminal group or organisation.

In addition, Article 140.2 CP imposes this penalty on a murderer convicted of killing more than two people. In that multiple-murder scenario, Article 78 bis CP hardens enforcement: open-regime third grade requires a minimum of 20 years served, and review of the sentence a minimum of 30 years actually served.

"Reviewable" means it is not perpetual confinement without judicial control: under Article 92 CP, the court may suspend the sentence once the convicted person has served 25 years, is classified in third grade — available, as a general rule, after 15 years of actual imprisonment (Article 36.1 CP) — and shows a favourable prognosis of social reintegration. The suspension lasts 5 to 10 years and can be revoked. Article 140 bis CP also allows supervised release (libertad vigilada) to be added and, in certain cases, deprivation of parental authority. We explain the full regime in our guide to reviewable permanent imprisonment in Spain.

Statute of Limitations and Criminal Record

Murder is subject to limitation; it is not imprescriptible. Murder under Article 139 CP, with a maximum penalty of 25 years, becomes time-barred after 20 years (Article 131 CP). Murders under Article 140 CP, punished with reviewable permanent imprisonment, become time-barred after 35 years. Imprescriptibility is reserved by Article 131.3 CP for categories such as genocide or crimes against humanity.

The expungement of the criminal record does not follow the ordinary path either. For an ordinary prison sentence, the cancellation period — 10 years for serious penalties (Article 136 CP) — runs from the extinction of the penalty. With reviewable permanent imprisonment, the penalty is not extinguished on release: after suspension, the convicted person must complete the 5 to 10 year period of Article 92 CP and obtain final remission, and only from extinction does the cancellation clock start. The real time horizon is therefore far longer than for any fixed-term sentence.

Defence Strategies

Completed murders are, as a general rule, tried before a jury (Tribunal del Jurado): nine lay citizens decide on the facts, which means the defence must be built from the very first statement and technical questions must be translated into terms a jury can assess. The usual lines are:

1. Challenging the qualifying circumstance: proving that the victim retained a real possibility of defence (ruling out treachery) or that there was no deliberate purpose of causing suffering (ruling out cruelty) downgrades the facts to homicide under Article 138 CP.
2. Disputing the intent to kill: if the animus necandi — which courts infer from the weapon, the area of the body targeted or the repetition of blows — is not proven, the facts may be classified as an offence of injuries.
3. Avoiding the upper half of Article 139.2: where several circumstances are charged, eliminating all but one returns the range to 15-20 years.
4. Self-defence (Article 20.4 CP): it requires an unlawful aggression, the rational necessity of the means used and the absence of sufficient provocation; where complete it excludes liability, where incomplete it reduces it very significantly.
5. Against Article 140 CP: disputing the victim's special vulnerability or the offender's membership of a criminal organisation removes reviewable permanent imprisonment and returns the penalty to the Article 139 range.

For a side-by-side view of the sentencing ranges, see our analysis of the penalty differences between homicide and murder.