Homicide vs Murder in Spain: Penalties and Defence 2026

The difference between homicide and murder in Spain lies not in the result, which is the same, but in how or why the victim is killed, and it can mean up to ten more years in prison. This guide compares Arts. 138, 139 and 140 of the Spanish Criminal Code (CP) circumstance by circumstance, together with attempt, the jury trial and the lines of defence.

Difference Between Homicide and Murder

Homicide and murder punish the same conduct: intentionally killing another person, wanting that death or accepting it as probable. What turns a homicide into murder is the presence of at least one of the four circumstances listed in Art. 139.1 CP: treachery (alevosía); payment, reward or promise; cruelty (ensañamiento); or killing to facilitate another offence or to prevent its discovery.

• With none of them, the facts are homicide under Art. 138 CP: ten to fifteen years in prison.
• With one, they are murder: fifteen to twenty-five years in prison.
• With two or more, the penalty for murder is imposed in its upper half, from twenty to twenty-five years (Art. 139.2 CP).

Above that sits murder under Art. 140 CP, punished with reviewable permanent imprisonment (prisión permanente revisable), Spain's form of life sentence subject to judicial review. Below it, outside intent altogether, lies negligent homicide. In practice, therefore, the dispute is rarely about whether someone died, but about whether there was an intent to kill and whether the prosecution can prove the circumstance it alleges.

If You Are Accused of Homicide or Murder: What It Means and What Happens Next

If the complaint (querella or denuncia), the police report or the court's first decision speaks of murder (asesinato), nothing is settled: the classification is provisional and may change during the investigation and up to the final submissions at trial. It means that the prosecution alleges, besides the intent to kill, a circumstance of Art. 139 CP, which is usually where the defence focuses. What happens next, broadly:

• Investigation. It is led by the Investigation Section of the Court of Instance (Sección de Instrucción) for the district where the events took place, unless the case falls to the sections dealing with violence against women or violence against children and adolescents (Art. 14.2 of the Criminal Procedure Act, LECrim).
• Precautionary measures. Given the severity of the penalties, the prosecution may seek pre-trial detention (prisión provisional), which requires the conditions of Art. 503 LECrim and is decided after a hearing at which the defence is present (Art. 505 LECrim).
• Trial. Before a jury if the offence was completed; as a rule, before professional judges if it remained an attempt.

What Is Homicide? (Art. 138 CP)

Art. 138.1 CP punishes as homicide, with ten to fifteen years in prison, anyone who «matare a otro» (unofficial translation: "kills another"). It requires intent: either the intention to kill (animus necandi) or, at least, that the perpetrator foresees death as probable and accepts it (conditional intent, dolo eventual). As that intention is rarely admitted, it is inferred from objective facts: the weapon, the part of the body attacked, the number and force of the blows, the words that accompanied the attack and the perpetrator's conduct before and after it.

Art. 138.2 CP provides for an aggravated homicide, punished with the penalty one degree higher (fifteen years and one day to twenty-two years and six months), in two situations: where one of the circumstances of Art. 140.1 is present (a victim under sixteen or especially vulnerable, a death following a sexual offence against the victim, or a perpetrator who belongs to a criminal group or organisation), and where the facts also amount to an assault on authority under Art. 550 CP. The basic offence is analysed in our guide to homicide under Article 138.

What Is Murder? (Art. 139 CP)

Murder is a qualified form of homicide: fifteen to twenty-five years in prison for anyone who kills another person with one of these circumstances of Art. 139.1 CP:

• Treachery (1st): the way the attack is carried out secures the result and removes the risk of the victim defending themselves.
• Payment, reward or promise (2nd): a contract killing, carried out in exchange for something of value.
• Cruelty (3rd): killing while deliberately and inhumanly increasing the victim's pain.
• Connection with another offence (4th): killing to facilitate the commission of another offence or to prevent its discovery. That purpose must be proven: it is not enough for the two acts to coincide.

If two or more are present, Art. 139.2 CP requires the upper half of the penalty. The circumstance that turns the homicide into murder is not applied a second time as a general aggravating circumstance (Art. 67 CP). Each circumstance is examined in depth in our post on murder under Article 139.

Comparison Table: Each Circumstance, Its Classification and Its Penalty

Penalties in the abstract; the actual sentence depends on mitigating and aggravating circumstances, on the stage the offence reached and on the form of participation.

What Is Treachery (Alevosía) and Why Does It Decide the Classification?

Art. 22.1 CP defines it as using, in carrying out an offence against persons, means, methods or forms that tend directly or especially to ensure its execution without any risk to the offender from the victim's defence. Two levels are examined: an objective one, whether the manner of the attack genuinely removed the victim's chances of defending themselves; and a subjective one, whether the perpetrator sought that defencelessness or knowingly took advantage of it.

Three forms are usually distinguished: the treacherous ambush (alevosía proditoria: a trap, an ambush or a betrayal), the sudden or surprise attack (an unexpected assault leaving no time to react) and helplessness (desvalimiento: a victim who cannot defend themselves, such as someone asleep or unconscious, or a very young child). Whether the attack was truly unexpected, or whether the victim kept some ability to defend themselves, is often what separates a conviction for homicide from one for murder.

When Is There Cruelty (Ensañamiento)?

Killing «aumentando deliberada e inhumanamente el dolor del ofendido» (unofficial translation: "deliberately and inhumanly increasing the victim's pain", Art. 139.1.3 CP) requires two elements: inflicting on the victim, while still alive and conscious, suffering that is unnecessary to cause death; and a deliberate purpose of making the victim suffer, distinct from the intent to kill. The brutality of the attack or the number of wounds is not enough on its own, and injuries inflicted after the victim has died cannot increase their pain. That is why the post-mortem examination (the order of the injuries, which were fatal, whether the victim was conscious) is the key evidence.

When Is Reviewable Permanent Imprisonment Imposed? (Art. 140 CP)

Murder, not homicide, carries reviewable permanent imprisonment where the victim is under sixteen or especially vulnerable by reason of age, illness or disability; where the killing follows a sexual offence committed by the perpetrator against the victim; or where the perpetrator belongs to a criminal group or organisation (Art. 140.1 CP). It is also imposed on a person convicted of murder who has been convicted of the deaths of more than two people (Art. 140.2). The circumstances of Art. 140.1, without those of Art. 139, only give rise to the aggravated homicide of Art. 138.2.a; Art. 140.2 applies only to murder.

"Reviewable" means that enforcement of the sentence can be suspended once the prisoner has served twenty-five years, has been classified in the third grade (the open regime) and there is a favourable prognosis of social reintegration (Art. 92 CP); where there are several offences, Art. 78 bis CP sets its own minimum terms. The full regime is explained in our guide to reviewable permanent imprisonment.

Attempted Homicide and Attempted Murder: What Is the Penalty?

There is an attempt when the perpetrator begins to carry out the offence through all or some of the acts that should cause death, and death does not occur for reasons beyond their control (Art. 16.1 CP): for example, a stab wound to a vital area that medical treatment prevents from proving fatal. Art. 62 CP imposes the penalty one or two degrees lower than for the completed offence, according to the danger inherent in the attempt and how far the execution went. Under the rules of Art. 70 CP on how each degree is calculated, that gives:

Two further points. If the victim survives, the line between attempted homicide and an offence of bodily harm (lesiones) again turns on the intent to kill. And anyone who voluntarily prevents completion, by abandoning the attempt or by preventing the result, is exempt for the attempted offence, but remains liable for acts already done if they amount to another offence (Art. 16.2 CP).

Incitement, conspiracy and proposal to kill are also punishable, with the penalty one or two degrees lower (Art. 141 CP). Where the victim of an attempted homicide is under eighteen, the limitation period runs from the date on which the victim turns thirty-five (Art. 132.1 CP), a rule that applies to acts committed on or after 25 June 2021.

If There Was No Intent to Kill: Negligent Homicide (Art. 142 CP)

Where death results from a breach of the duty of care, and not from a decision to kill or from accepting that risk, the offence is negligent homicide: one to four years in prison if the negligence is gross, and a fine of three to eighteen months (Spanish fines are set in daily units) if it is less serious, with disqualifications depending on how the death was caused. The dividing line runs between conditional intent (the perpetrator foresees death as probable and accepts it) and conscious negligence (they foresee it but trust that it will not happen). The full regime is in our post on negligent homicide under Art. 142.

Who Tries Homicide and Murder, and When Are They Time-Barred?

The jury has jurisdiction over the offences in Arts. 138 to 140 CP (Art. 1.2.a of Organic Law 5/1995 on the Jury Court, LO 5/1995). The trial takes place within the Provincial Court (Audiencia Provincial), before a court made up of nine jurors and a professional judge who presides over it (Arts. 1.3 and 2.1 LO 5/1995). Three points apply:

• Completed offences only. For offences against persons, the jury only has jurisdiction if the offence was completed (Art. 5.1 LO 5/1995). An attempt on its own is tried by professional judges, unless it is tried together with a connected offence that falls to the jury (Art. 5.2).
• Plea agreements. Since Organic Law 1/2025, the Public Prosecutor's Office (Circular 1/2025, §6.2 and conclusion 5) regards the six-year cap in art. 50.1 of the Jury Court Act (LOTJ) as tacitly repealed and accepts plea agreements (conformidad) before the jury court with no sentence cap; the wording of art. 50.1 itself has not been formally amended.
• Negligent homicide is not tried by a jury: Art. 1.2.a only covers Arts. 138 to 140 CP.

The trial itself is explained in how the jury trial works in Spain. As for limitation periods, intentional homicide and murder, including the cases under Art. 140, become time-barred after twenty years, because their maximum penalty is fifteen years' imprisonment or more (Art. 131.1 CP).

What to Do (and What Not to Do) If You Are Under Investigation for Homicide or Murder

• Do not make a statement without a lawyer. A detained person has the right to remain silent, not to incriminate themselves and to appoint a lawyer (Art. 520.2 LECrim). What is said early on will weigh later in the debate on intent to kill and treachery.
• Do not discuss the case with anyone, including via messaging apps or social media: those messages may end up in the case file.
• Challenge the classification from the start: dispute the Art. 139 circumstance (if the victim retained a real chance of defending themselves, there is no treachery; without a purpose of making the victim suffer, there is no cruelty), question the intent to kill and raise any exemptions or mitigating circumstances.
• Self-defence (Art. 20.4 CP). It requires an unlawful aggression, rational necessity of the means used to prevent or repel it, and no sufficient provocation by the defender. If there was an unlawful aggression but one of the other requirements is missing, it may operate as an incomplete exemption (eximente incompleta, Art. 21.1 CP), lowering the penalty by one or two degrees (Art. 68 CP). It must be backed by evidence from the outset.
• Review the forensic evidence: post-mortem, crime-scene analysis and reconstruction of events.

If you or a family member is under investigation for an offence against life, see our defence in offences against life or call us on +34 91 078 65 74 for an initial assessment of your case. We will study the file and explain which classification the facts support and what options you have.