Article 66 of the Spanish Criminal Code: rules for setting the sentence

When someone asks how long a sentence could be, the answer is not found only in the article that defines the offence. The range attached to each offence — say, six months to three years' imprisonment — is a starting point. Article 66 of the Spanish Criminal Code holds the rules that require a court to move within that range in a particular way depending on the mitigating and aggravating circumstances present. It is the provision that turns an abstract range into an actual sentence, and it is where much of the real defence work is done.

If you are accused of an intentional offence: what article 66 CP says

Article 66.1 CP opens with a boundary that should not be overlooked: in the application of the penalty, in the case of intentional offences, judges and courts must observe the following rules according to whether mitigating or aggravating circumstances are present.

Two consequences follow at once. First, the eight rules of paragraph 1 govern intentional offences only; negligent and minor offences have their own regime in paragraph 2. Second, the rules are not advisory. The statute says the courts "shall observe" them, and a breach can be reviewed on appeal and in cassation.

Before article 66 CP comes into play the starting range must already be fixed. Article 61 CP provides that where the law lays down a penalty, it is understood to be imposed on the perpetrators of the completed offence; article 62 CP lowers the penalty by one or two degrees for an attempt, according to the danger inherent in the attempt and the degree of execution reached; and article 63 CP imposes on accessories the penalty one degree below that set for the perpetrators of the same offence. Only once that range is fixed do the circumstances operate.

The eight rules of article 66.1 CP, one by one

• Rule 1 — a single mitigating factor. The court imposes the penalty in the lower half of the range set by law for the offence.
• Rule 2 — two mitigating factors, or one that is highly qualified. Where two or more mitigating circumstances apply, or one or more of them are highly qualified, and no aggravating factor is present, the court imposes the penalty one or two degrees lower, having regard to the number and weight of those circumstances.
• Rule 3 — one or two aggravating factors. The court imposes the penalty in the upper half of the statutory range.
• Rule 4 — more than two aggravating factors. Where more than two aggravating circumstances apply and no mitigating factor is present, the court may impose the penalty one degree higher, in its lower half. The wording is permissive: a power, not a duty.
• Rule 5 — qualified recidivism. Allows the penalty to be raised by one degree where the offender has been finally convicted of at least three offences under the same Title of the Code, provided they are of the same nature, taking into account the previous convictions and the seriousness of the new offence.
• Rule 6 — no circumstances at all. The court imposes the penalty set by law to the extent it considers appropriate, having regard to the personal circumstances of the offender and the greater or lesser seriousness of the act. This is the most frequent rule and the one that leaves the widest margin.
• Rule 7 — balancing. Where mitigating and aggravating circumstances both apply, the court assesses and balances them rationally in order to individualise the sentence.
• Rule 8 — reduction by more than one degree. Where courts reduce the penalty by more than one degree, they may do so across its whole extent.

The catalogue of circumstances that trigger these rules is in articles 21 and 22 CP: among the mitigating factors, a confession made before learning of the proceedings, repair of the harm before the trial hearing, or extraordinary and undue delay; among the aggravating ones, treachery, payment, abuse of trust and recidivism.

Halves and degrees: two different operations

Confusing the "lower half" with "one degree lower" is the most common miscalculation, and the consequences are significant. The lower half is a band inside the same range. A degree lower is a new range, built under the rules of article 70.1 CP: the penalty one degree higher is formed by taking the maximum figure set by law for the offence and adding half of that amount, and the penalty one degree lower by taking the minimum figure and deducting half of it.

On a range running from two to five years, the lower half would reach three years and six months, while the degree below would start at one year and end short of two. Article 70.2 CP adds that the day and the daily fine unit are indivisible and operate as units of more or less.

Whether the sentence lands above or below two years is not an academic detail: in practice it is the line that decides whether suspension of enforcement can even be raised. That is why an argument about a single mitigating factor can weigh more than the whole of the defence evidence.

Rule 7: balancing is not cancelling

Where circumstances of opposite sign apply, article 66.1.7 CP does not order them to be struck off against each other. It orders them to be assessed and balanced rationally, and it expressly states what happens when the result is not neutral: where a qualified ground for mitigation persists, the penalty is reduced by one degree; where a qualified ground for aggravation persists, the penalty is imposed in its upper half.

Two neighbouring provisions complete the picture. Article 67 CP forbids double assessment: the rules of article 66 do not apply to circumstances the law has already taken into account when defining or punishing the offence, nor to those so inherent in it that the offence could not be committed without them. And article 65 CP allocates the effect of the circumstances among the participants: those of a personal nature affect only the person in whom they are present, and those relating to the material execution of the act or the means used affect only those who knew of them at the time.

Article 68 CP deserves a separate mention. It deals with incomplete defences under article 21.1 CP: in those cases courts impose the penalty one or two degrees lower, having regard to the number and weight of the requirements that are missing or present and to the personal circumstances of the offender, without prejudice to the application of article 66. The reduction under article 68 CP therefore comes first, and the general rules then operate on the resulting range.

Rule 5 and the prior convictions that do not count

The qualified recidivism of article 66.1.5 CP requires three prior final convictions for offences under the same Title of the Code and of the same nature, and then allows the penalty to be raised by one degree, taking into account the previous convictions and the seriousness of the new offence.

The provision closes with a safeguard the defence should always check: prior convictions that have been cancelled, or that ought to have been cancelled, are not counted for the purposes of this rule. The second limb matters most. A record that could have been cancelled but was not, through administrative inertia, cannot aggravate the sentence, and clearing it up documentarily is a concrete defence task rather than a rhetorical point.

Minor and negligent offences: the discretion of article 66.2 CP

Article 66.2 CP sets a different regime: in minor offences and negligent offences, courts apply the rules at their prudent discretion, without being bound by the rules of the previous paragraph, save for what is provided for the forms aggravated by repeat commission of minor offences.

That freedom is not the absence of control. The sentence must still be reasoned under article 72 CP and remains reviewable where the reasoning is merely formal or contradicts the findings of fact. In practice, in minor-offence trials the argument about the length of the fine is resolved in minutes, and arriving with the daily fine unit properly documented is what makes the difference.

Article 72 CP: the sentence has to be explained

Article 72 CP closes the chapter with a short and demanding obligation: courts must give reasons in the judgment for the degree and the exact length of the penalty imposed. Reasoning the conviction is not enough; the sentence itself must be reasoned, by reference to the rules applied and to the facts of the case.

For the defence this opens a self-standing ground of appeal. A judgment may be unassailable on the facts and still impose a penalty in the upper half without identifying the aggravating factor that justifies it, or reject a mitigating factor without explaining why. That defect can be attacked without disputing guilt, which in many cases is the most realistic strategy.

How the calculation works in practice

The operations of article 70 CP — halves, degrees, indivisible days — invite arithmetical mistakes even from those who handle them daily. To get a sense of the resulting band in a specific case, our sentence calculator applies the rules of articles 66 and 70 CP to the statutory range entered.

It is worth saying what it is and what it is not: an orientation tool. It does not replace an examination of the police report, the personal circumstances or the provisional charges, and it does not anticipate the court's view. It helps to understand the order of magnitude and to prepare the conversation with a lawyer.

Situations where article 66 CP decides the case

• Early confession. The mitigating factor of article 21.4 CP requires the confession to be made before the person learns that proceedings are directed against them; a single mitigating factor already moves the sentence into the lower half under rule 1.
• Repair of the harm. Article 21.5 CP admits it at any stage before the trial hearing; treated as highly qualified, it opens the reduction by one degree under rule 2. See our note on mitigating circumstances that reduce a sentence.
• Undue delay. Article 21.6 CP requires the delay to be extraordinary, undue, not attributable to the accused and disproportionate to the complexity of the case. It is the natural route in long proceedings: see our note on undue delay as a mitigating factor.
• Disputed prior convictions. Where the prosecution invokes recidivism, the date of finality and the cancellability of each record become the real subject of the trial.
• Guilty plea. Negotiating a plea without first calculating the band that article 66 CP would produce means accepting blind.

What the defence looks at

• That the starting range is correct: degree of execution (article 62 CP) and form of participation (article 63 CP) before any circumstance is considered.
• That no circumstance is assessed twice, under article 67 CP.
• That personal circumstances are attributed to the right person, under article 65 CP.
• That the prior convictions relied on are neither cancelled nor cancellable.
• That the judgment reasons the degree and the length, as article 72 CP requires, and that the calculation of halves and degrees follows article 70 CP.
• That, where a prison term of under three months results, the mandatory replacement of article 71.2 CP is applied.

Sentencing is the part of criminal proceedings where rigorous technical work produces measurable results even when the facts are not in dispute. To discuss a specific case, call us on 91 078 65 74 or see our page on criminal defence in Spain.