Homicide vs Murder in Spain: Penalties and Defence 2026

The difference between homicide and murder in Spain is one of the most far-reaching distinctions in criminal law: it can mean ten more years in prison and even reviewable permanent imprisonment. As criminal lawyers experienced in offences against life, we explain the precise legal boundaries between the two offences, the penalties set by the Spanish Criminal Code (CP) and the defence strategies raised in these proceedings.

What Is Homicide? (Art. 138 CP)

Article 138.1 CP punishes homicide — killing another person — with 10 to 15 years in prison. It is the basic offence against life and requires intent to kill (animus necandi), which the courts infer from objective indicators: the weapon used, the area of the body targeted, the number and force of the blows, and the conduct before and after the act. Where an intent to kill cannot be proven, the facts may amount to an offence of injuries — one of the recurring battlegrounds of these trials.

Article 138.2 CP also provides for an aggravated homicide, punished with the next degree up (15 years and 1 day to 22 years and 6 months), where any of the circumstances of Article 140.1 CP is present or where the facts also constitute an offence of assault on authority under Article 550 CP.

What Is Murder? (Art. 139 CP)

Murder is the qualified form of homicide. Article 139.1 CP imposes 15 to 25 years in prison on anyone who kills another person under any of these four circumstances:

• Treachery (alevosía): the manner of execution secures the result and eliminates any risk arising from the victim's defence.
• Payment, reward or promise: the contract killing, which qualifies both the hitman and whoever hires him.
• Cruelty (ensañamiento): deliberately and inhumanly increasing the victim's pain.
• Connection with another offence: killing to facilitate the commission of another offence or to prevent its discovery.

Where more than one of these circumstances is present, Article 139.2 CP requires the penalty to be imposed in its upper half: 20 to 25 years in prison.

Penalty Comparison Table: Arts. 138, 139, 140 and 142 CP

Treachery (Alevosía) in the Case Law

Article 22.1 CP defines treachery as 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 consolidated case law of the Spanish Supreme Court requires an objective element — the manner of execution must genuinely eliminate the victim's possibilities of defence — and a subjective element: the perpetrator must seek that advantage or knowingly exploit the victim's defencelessness.

The Supreme Court's doctrine distinguishes three classic forms: proditory treachery (the trap, the ambush, the betrayal), sudden or surprise treachery (the unexpected attack that prevents any defensive reaction) and treachery by helplessness (taking advantage of 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 defend themselves, decides whether the conviction is for homicide or for murder.

Cruelty (Ensañamiento)

Article 139.1.3 CP describes it as killing while "deliberately and inhumanly increasing the victim's pain". Under the consolidated case law it requires an objective element — inflicting harm unnecessary to cause death, additional physical or psychological suffering, 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 repetition of blows inherent in the dynamics of a killing is therefore not enough: injuries inflicted after death, or the mere multiplicity of wounds, do not in themselves amount to cruelty.

Reviewable Permanent Imprisonment: the Cases of Art. 140 CP

Murder is punished with reviewable permanent imprisonment (prisión permanente revisable) where any of the circumstances of Article 140.1 CP 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 perpetrator belongs to a criminal group or organisation.

In addition, Article 140.2 CP imposes this penalty on a murderer convicted of killing more than two people. "Reviewable" means it is not indefinite confinement without judicial control: Article 92 CP allows the sentence to be suspended once the convicted person has served 25 years, has been classified in open-regime third grade and the court finds a favourable prognosis of social reintegration; in multiple convictions, Article 78 bis CP raises those minimum terms to up to 30 years.

Negligent Homicide (Art. 142 CP)

Not every death gives rise to an intentional offence. Where death is caused by a serious breach of a duty of care rather than by a decision to kill, the correct classification is negligent homicide. Article 142.1 CP punishes homicide by gross negligence with 1 to 4 years in prison; where a motor vehicle or moped is involved, disqualification from driving for 1 to 6 years is added — and the law deems the negligence gross in every case where driving under any of the circumstances of Article 379 CP causes the death —; where a firearm is involved, deprivation of the right to carry weapons for 1 to 6 years; and in cases of professional negligence, special disqualification from the profession or trade for 3 to 6 years.

Article 142.2 CP punishes homicide by less serious negligence with a fine of 3 to 18 months (plus disqualification from driving for 3 to 18 months in traffic cases); except where a motor vehicle is involved, it can only be prosecuted upon complaint by the aggrieved party or their legal representative. The dividing line between dolo eventual (foreseeing the high probability of death and accepting it) and conscious negligence marks the difference between double-digit prison terms and penalties of 1 to 4 years or a fine: it is one of the technical pillars of the defence in these cases.

Defence Strategy

Completed homicides and murders are, as a general rule, tried before a jury (Tribunal del Jurado), which means the defence must be built from the very first statements and the technical questions — intent, qualifying circumstances, alternative classifications — must be translated into terms a lay jury can assess. The usual lines are:

• Challenging the qualifying circumstances: showing 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), so that the facts are reclassified from murder to homicide.
• Disputing the animus necandi: if the intent to kill is not proven, the facts may be classified as an offence of injuries, with far lower penalties.
• Reclassification as negligent homicide: in deaths arising from a breach of a duty of care, without homicidal intent.
• Self-defence (Art. 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. It must be supported by evidence from the outset, not raised as an afterthought at trial.

If you or a family member is under investigation for an offence against life, contact our criminal lawyers experienced in homicide and murder, call us on +34 91 078 65 74 or write to us through our contact page. We work to ensure that the legal classification of the facts strictly reflects the evidence produced.