Attempted Offence: What It Is and How It Reduces the Penalty (Arts. 16 and 62 CP)

Someone who fires a shot and misses, or is caught with a hand inside another person's bag, has not completed any offence, but does not walk away unpunished either. The Spanish Criminal Code (Código Penal, CP) punishes the attempt (tentativa): an offence whose execution has begun but stops halfway for reasons beyond the offender's will. This guide explains what Art. 16 CP requires, how Art. 62 CP reduces the penalty, when changing one's mind leaves the offender without punishment and what happens with minor offences. Quotations from the CP are our translation.

What an attempt is under Art. 16 CP

Art. 15 CP declares punishable "the completed offence and the attempted offence". Art. 16.1 CP defines the second: there is an attempt "when the subject begins the execution of the offence directly by external acts, performing all or part of the acts that should objectively produce the result, and yet the result does not occur for reasons independent of the offender's will".

That definition yields four requirements the prosecution must prove:

• Intent to complete the offence. The offender wanted to commit the full offence. There is no such thing as a negligent attempt.
• Beginning of execution. External acts that already fall within the conduct described by the offence, not mere thoughts or preparations.
• Objective suitability. The acts performed "should produce the result", assessed objectively.
• Failure to complete for external reasons. The result does not occur because of something the offender does not control: the victim fights back, the police arrive, the bank detects the fraud.

If it is the offender who stops, there is withdrawal (desistimiento), explained further below. If execution never began, the facts are, as a rule, preparatory acts that are not punished.

If you are accused of an attempted offence: what it means and what happens next

When the prosecution's statement of charges (escrito de acusación) refers to an "attempt", it is accepting that the offence was not completed, while maintaining that its execution had begun. The charge is still the specific offence (robbery, homicide, fraud), "in the degree of attempt" (en grado de tentativa).

For the defence, that classification opens three fronts:

• Whether execution had actually begun, or the facts stopped at a stage the law does not punish.
• Whether the offence was completed or not. The difference in penalty is considerable.
• How many degrees the penalty should drop, one or two, and whether the judgment gives reasons for its choice.

And if the person abandoned the plan of their own accord, Art. 16.2 CP exempts them from liability for the attempted offence.

Where an attempt begins: preparatory acts, execution and completion

Ideas are not punished and preparation only exceptionally: the dividing line is the beginning of execution.

The preparatory acts described in the CP are conspiracy and proposal (Art. 17 CP) and incitement (Art. 18 CP). They are punished only "in the cases specifically provided for by law". That happens, among others, in homicide and murder (Art. 141 CP), bodily injury (Art. 151 CP), robbery, extortion, fraud and misappropriation (Art. 269 CP) and drug trafficking (Art. 373 CP). Otherwise, buying a weapon or studying the scene is not yet an offence. We explain this in our post on conspiracy, proposal and incitement to commit homicide.

Where execution begins depends on each offence. In sexual assault, using violence to overcome the victim's resistance is already treated as the beginning of execution, as we analyse in when initial violence already amounts to attempted sexual assault.

At the other end lies completion. In offences against property, the boundary usually turns on whether the offender gained control over what was taken: someone caught inside the premises, or pursued without interruption until arrest, without ever being able to dispose of the item, normally remains at the attempt stage, as our guide to robbery with force and with violence explains. In fraud, completion comes with the transfer of assets; if the insurer or the bank detects the deception before paying out, the facts remain an attempt, as happens in insurance fraud based on a simulated claim.

Completed and incomplete attempt: what is the difference?

Art. 16.1 CP speaks of performing "all or part of the acts" that should produce the result. Two categories derive from that phrase. The law does not name them, although they are in common use (the State Attorney General's Circular 1/2015, for example, speaks of an incomplete attempt, tentativa inacabada):

• Completed attempt (tentativa acabada): the offender has done everything in their power and the result still does not occur. For example, a shot after which the victim survives thanks to medical care.
• Incomplete attempt (tentativa inacabada): execution is interrupted before it is finished. For example, a burglar arrested while forcing the door.

The 1973 consolidated text of the Criminal Code had a separate category, the "frustrated offence" (delito frustrado), in which the offender performed "all the acts of execution" and the result still failed to occur for reasons independent of their will (Art. 3); it was punished with the penalty one degree lower (Art. 51). The 1995 Code no longer contains that category: its Art. 16.1 brings within the attempt both the performance of "all" the acts and of only "part" of them, so those situations are now a completed attempt.

This matters because Art. 62 CP graduates the reduction according to the "degree of execution reached", but not only that: the same article also requires the court to weigh the "danger inherent in the attempt". The law does not assign a fixed number of degrees to each type of attempt: the court weighs both criteria in each case.

What penalty does an attempt carry: Art. 62 CP

Art. 62 CP is short: those who commit an attempt "shall be given the penalty one or two degrees lower than that laid down by law for the completed offence, to the extent deemed appropriate, having regard to the danger inherent in the attempt and the degree of execution reached".

A "degree" (grado) is a unit of the Spanish sentencing system. Each offence carries a penalty range, and the Code lowers or raises it by degrees under fixed arithmetic rules, not by a percentage chosen by the judge.

Three points follow from the text of Art. 62:

• A reduction of one degree is mandatory. The court cannot impose the penalty for the completed offence on an attempt. What it decides is whether to reduce by one degree or by two.
• There are two criteria and they are weighed together: the danger the attempt created for the protected interest and how far execution went.
• The decision must be reasoned. Art. 72 CP requires the judgment to state the reasons for "the degree and the specific extent of the penalty imposed". Reducing by a single degree without explaining why leaves the penalty without the reasoning that article requires.

The lower degree is calculated under Art. 70.1.2 CP: take the minimum of the penalty for the completed offence and subtract half of it; the result is the new minimum, and the new maximum is the original minimum less one day. With robbery with violence under Art. 242.1 CP (two to five years' imprisonment), the minimum is two years and half of it is one year. An attempt reduced by one degree therefore ranges from one year to two years less one day. If the penalty drops by two degrees, the same operation is repeated on that new range: six months to one year less one day.

Mitigating and aggravating circumstances then apply within that range, as explained in our post on the sentencing rules of Art. 66 CP. A proportional fine must also come down in the same proportion, as we discuss in our analysis of reducing a proportional fine by degree.

Table: from the completed offence to the attempt

The table applies Art. 62 CP, with the rule in Art. 70.1.2 CP, to the basic penalty of some offences. It is a guide only: aggravated forms and circumstances change the range.

When the reduction produces a prison term of less than three months, Art. 71.2 CP requires it to be replaced "in all cases" by a fine, community service (trabajos en beneficio de la comunidad) or permanent location (localización permanente, a form of confinement to a set address), at the rate of two daily fine units, one day of community service or one day of permanent location for each day of imprisonment.

If the offender changes their mind in time: withdrawal (Arts. 16.2 and 16.3 CP)

Art. 16.2 CP exempts from criminal liability "for the attempted offence" anyone who "voluntarily prevents the completion of the offence, either by withdrawing from the execution already begun or by preventing the result from occurring".

How to withdraw depends on how far execution has gone:

• If execution is not yet finished (incomplete attempt), it is enough to abandon it: stop forcing the door, let the victim go, not send the payment order.
• If the offender has already done everything (completed attempt), standing still is not enough: they must actively prevent the result, for example by calling an ambulance and ensuring that the victim survives.

The key word is "voluntarily". If the offender stops because the alarm goes off, because a patrol car appears or because the victim calls for help, the result fails to occur for "reasons independent of the offender's will", which is how Art. 16.1 CP defines the punishable attempt, and not because the offender "voluntarily" prevents it, as Art. 16.2 requires for the exemption.

The exemption has an express limit: it applies "without prejudice to any liability the offender may have incurred for the acts performed, if these already constitute another offence". Someone who withdraws from killing after having wounded the victim is not liable for attempted homicide, but is liable for the injuries already caused.

With several participants, Art. 16.3 CP is stricter: only those who withdraw from the execution already begun "and prevent or try to prevent, seriously, firmly and decisively, the completion" are exempt. Walking away is not enough: there must be a genuine effort to stop the offence, even if it fails.

What if the attempt could never have succeeded? The impossible attempt

Some attempts are bound to fail from the start: a hand in an empty pocket, or a gun that, unknown to the offender, was unloaded. This is the so-called impossible attempt (tentativa inidónea).

The wording of Art. 16.1 CP sets the guideline: it requires acts that "should objectively produce the result". That formula contrasts with the 1973 consolidated text, whose Art. 52 also applied the penalty for an attempt to "cases where execution or the occurrence of the offence was impossible"; the 1995 Code contains no such rule. Under the current wording, intention alone is not enough: an attempt that nobody could regard as capable of causing the result, such as casting a spell to kill someone, hardly fits the requirement of acts that "objectively" should produce it.

Cases such as the empty pocket or the unloaded gun fall into a disputed area that the courts resolve case by case. If the means used were, objectively and from the outset, useless for achieving the result, there are grounds to argue that no punishable attempt exists.

Is an attempted minor offence punishable?

Yes. Until 30 June 2015, the former Art. 15.2 CP provided that misdemeanours (faltas) "shall be punished only when completed, except those attempted against persons or property". Organic Law 1/2015 abolished misdemeanours, created minor offences (delitos leves) and reduced Art. 15 CP to a single sentence: "The completed offence and the attempted offence are punishable". A minor offence is still an offence, so attempting one is punishable under the general rule of Art. 62 CP.

The Public Prosecutor's Office applies it that way. The State Attorney General's Circular FGE 1/2015 on minor offences gives the example of an incomplete attempt to steal an item not exceeding 400 euros (Art. 234.2 CP): the fine of one to three months would be reduced by one degree as a matter of obligation (a fine of 15 to 29 days) or, if the court so decides, by two degrees (a fine of 8 to 14 days).

Accessories, the jury and other consequences of an attempt

• Accessories. Art. 63 CP imposes on accessories (cómplices) "to a completed or attempted offence" the penalty one degree lower than that of the perpetrators of the same offence. An accessory to an attempt is therefore liable to the penalty one degree lower than the one the law sets for the perpetrators of that attempt.
• Jury Court. In homicide and murder (Arts. 138 to 140 CP), the jury has jurisdiction only "if the offence was completed" (Art. 5.1 of Organic Law 5/1995 on the Jury Court). An attempted homicide or murder is therefore, as a rule, not tried by a jury (subject to the exceptions in paragraphs 2 and 3 of the same article) but by a professional court, as we also point out in our post on murder under Art. 139 CP.

What to do (and what not to do) if you are accused of an attempted offence

• Do not give a statement without a lawyer. You may decline to make a statement until you have legal assistance (Art. 118 of the Criminal Procedure Act, LECrim).
• If you do not speak Spanish, ask for an interpreter. Art. 123 LECrim gives the right to an interpreter whenever your presence is required, including police questioning, and to a written translation of the statement of charges and the judgment; the authorities bear the cost.
• Reconstruct the exact moment everything stopped, and why: if it was your own decision, withdrawal under Art. 16.2 CP may exempt you from liability for the attempted offence.
• Keep the evidence of how far execution went: recordings, messages, witnesses.
• Review the classification: completed or attempted, and one or two degrees of reduction, with the reasoning required by Art. 72 CP.
• Do not contact the victim or comment on the facts on social media.

With over 15 years of experience in criminal law, we can study your case: see our criminal defence service, or call us on +34 91 078 65 74.