Article 141 of the Spanish Criminal Code: incitement, conspiracy and proposal to commit homicide or murder

As a rule the Spanish Criminal Code punishes acts that have been carried out. There are listed exceptions where liability is moved back to the preparatory stage, and one of them is Article 141 CP: incitement, conspiracy and proposal to commit homicide or murder. Nobody has yet begun to carry anything out, and criminal liability nevertheless arises.

If you are investigated over a preparatory act: what Article 141 CP says

Article 141 CP fits in one line: incitement, conspiracy and proposal to commit the offences set out in the three preceding articles are punished with the penalty lower by one or two degrees than the one laid down, as the case may be, in those articles.

The three preceding articles are Article 138 CP (homicide), Article 139 CP (murder) and Article 140 CP (murder punished with reviewable permanent imprisonment). Outside those three offences Article 141 CP does not apply.

The article describes no conduct of its own: it declares punishable a set of preparatory acts that the Code defines in its general part, and sets the penalty by reference. To know what is actually punished you have to turn to Articles 17 and 18 CP.

The general framework: Articles 17 and 18 CP

Article 17.3 CP contains the rule that organises the whole subject: conspiracy and proposal to commit an offence are punished only in the cases expressly provided by law. Article 18.2 CP says the same of incitement: it is punished exclusively in the cases where the law so provides.

There is therefore no general punishment of preparatory acts. It exists only where the Code says so, and it says so in few places: besides Article 141 CP, in Article 151 CP for bodily harm, in Article 168 CP for unlawful detention and kidnapping, in Article 269 CP for robbery, extortion, fraud and misappropriation, in Article 553 CP for assault on an officer and in Article 557.4 CP for certain forms of public disorder. All of them use the same technique: the penalty reduced by one or two degrees.

That list matters in practice. Conspiring to commit an offence that does not appear on it is not punishable, however objectionable the conduct may seem.

Conspiracy (Article 17.1 CP)

Conspiracy exists where two or more people agree on the commission of an offence and resolve to carry it out. Two requirements, and neither is rhetorical:

• An agreement between two or more people. What is needed is a genuine agreement, not a coincidence of views or a conversation in which someone vents anger.
• A resolution to carry it out. The agreement has to reach a firm decision. A plan floated and dropped, a hypothesis discussed, or bravado do not satisfy the definition.

This is why the evidence in these cases almost always turns on the same material: transcripts of conversations, messages and statements from those involved. And it is why the full context of those conversations is decisive, since an isolated excerpt rarely proves a firm resolution.

Proposal (Article 17.2 CP)

A proposal exists where a person who has resolved to commit an offence invites another person or persons to take part in it. The wording requires two things: that the proposer has already resolved to commit the offence, and that the invitation be to take part in it.

Two practical consequences follow. First, someone who merely suggests that another person do something, without having resolved to do it himself, falls outside the statutory definition. Second, if the addressee accepts, there is no longer a proposal but a conspiracy: the agreement has been closed.

A proposal does not require publicity. A private conversation with a single addressee is enough.

Incitement and apologia (Article 18 CP)

Incitement exists where a person directly incites the commission of an offence through the press, broadcasting or any other medium of comparable effectiveness that facilitates publicity, or before an assembly of people (Article 18.1 CP).

There is a requirement here as to the medium: publicity or an assembly of people. Incitement addressed privately to one specific person is not incitement in this sense; it may be a proposal, if its elements are present, or fall outside the article.

Article 18.1 CP also defines apologia as the presentation, before an assembly of people or through any medium of dissemination, of ideas or doctrines that extol a crime or glorify its author, and immediately narrows it: apologia is criminal only as a form of incitement and only where, by its nature and circumstances, it amounts to direct incitement to commit an offence. Celebrating an act is not enough; direct incitement is required.

Article 18.2 CP closes with a rule that avoids duplication: if the offence follows the incitement, it is punished as instigation. Where the homicide or murder is actually committed, liability stops resting on Article 141 CP and moves to Articles 138 or 139 CP, as principal, co-principal or instigator under Article 28 CP.

How the penalty is calculated

Article 141 CP sets no figures: it refers back. The calculation rule is in Article 70.1.2 CP, under which the penalty lower by one degree is formed by taking the minimum laid down for the offence and deducting half of it, the maximum being that minimum reduced by one day.

• Homicide. Article 138.1 CP sets prison of ten to fifteen years. The penalty lower by one degree runs from five years to ten years less one day; lower by two degrees, from two years and six months to five years less one day.
• Murder. Article 139.1 CP sets prison of fifteen to twenty-five years. The penalty lower by one degree runs from seven years and six months to fifteen years less one day; lower by two degrees, from three years and nine months to seven years and six months less one day.
• Murder under Article 140 CP. The penalty is reviewable permanent imprisonment, and the Code settles the calculation itself: Article 70.4 CP provides that the penalty lower by one degree than permanent imprisonment is prison of twenty to thirty years. A second reduction on that frame brings the minimum to ten years.

Choosing between one and two degrees is not arbitrary: Article 72 CP requires courts to give reasons in the judgment for the degree and the specific extent of the penalty imposed. It is a point that defence work often neglects and that pays off.

Boundaries with attempt, instigation and threats

• Against attempt. Article 16.1 CP defines attempt as beginning the commission of the offence directly by external acts, performing all or part of the acts that should objectively produce the result. The acts covered by Article 141 CP stop short of that threshold: there is an agreement or an incitement, not a beginning of execution.
• Withdrawal. Article 16.2 CP exempts anyone who voluntarily prevents completion of an attempted offence, and Article 16.3 CP addresses withdrawal where several people are involved. The Code has no equivalent clause expressly covering conspiracy and proposal.
• Against instigation. Article 28(a) CP treats as principals those who directly instigate others to commit the offence. If the offence is carried out, that is where the charge moves.
• Against threats. Telling a person that they will be killed falls under threats under Article 169 CP, which is directed at the victim. Conspiracy and proposal are addressed to a third party with whom the agreement is made, and do not require the victim to learn anything at all.

What the defence looks at

• The firm resolution. It is the core of Article 17 CP and the weakest point of almost every conspiracy charge.
• The intended offence. Only Articles 138, 139 and 140 CP trigger Article 141 CP: if what was agreed was not to cause death, there is no punishable preparatory act by this route.
• The integrity of the conversations. Full transcripts, complete audio and context. Selected excerpts are worth little.
• The lawfulness of any interception of communications. This evidence stems from a judicial authorisation, and reviewing it is the first line of defence.
• The publicity requirement for incitement. Without dissemination or an assembly of people, Article 18.1 CP is not met.
• The reduction applied. One or two degrees change the frame entirely, and Article 72 CP requires the choice to be reasoned.

If you are under investigation for a preparatory act relating to an offence against life, what is really in dispute is not what happened but what was agreed and how firmly. You can call us on +34 91 078 65 74 or read our page on homicide and murder.