Mitigating and Aggravating Factors: What Raises and Lowers the Penalty? 2026 Guide
In this article
Key Takeaways
- Confession reduces the penalty
- Reoffending raises the penalty
- Making good the harm
- Kinship depends on the offence
The circumstances that modify criminal liability determine the specific penalty within the offence's legal range. The mitigating factors of Art. 21 CP lower it (confession, making good the harm, serious addiction, fit of passion or obfuscation, undue delay); the aggravating factors of Art. 22 CP raise it (treachery, disguise or abuse of superiority, price, discriminatory motives, reoffending). Art. 23 CP governs the mixed circumstance of kinship, which may mitigate or aggravate depending on the nature of the offence.
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In criminal law, the arithmetic matters. The penalty for an offence is not fixed; it is a range (e.g. 1 to 3 years). Why does one person get 3 years and another 1 year for the same thing? Because of the circumstances that modify criminal liability: mitigating and aggravating factors. Our criminal lawyers in Madrid can help you with this type of situation.
Mitigating Factors (Art. 21 CP): To Lower the Penalty
They are fundamental to the defence. If we cannot secure an acquittal, we fight to apply mitigating factors to reduce the sentence to the minimum.
- Confession: admitting the facts to the authorities BEFORE they know it was you. (Confessing once you are already cornered does not count.)
- Making good the harm: paying the compensation to the victim before trial. It is the most effective mitigating factor.
- Fit of passion or obfuscation: acting in an intense emotional state (jealousy, uncontrollable rage).
- Undue delay: when the proceedings take unjustifiably long.
- Addiction: acting because of a serious addiction to drugs or alcohol.
Aggravating Factors (Art. 22 CP): To Raise the Penalty
The prosecution will try to prove them in order to punish you more harshly.
- Treachery: attacking by stealth or from a position of safety, with no risk to the aggressor (e.g. attacking from behind).
- Disguise / abuse of superiority: using means that weaken the victim's defence.
- Reoffending: having been previously convicted of similar offences.
- Discriminatory motives (hatred): for racism, sexual orientation, gender, religion...
The Mixed Circumstance of Kinship (Art. 23 CP)
It depends on the offence:
- It aggravates: in offences against the person (killing your spouse is more serious than killing a stranger).
- It mitigates: in property offences (stealing from your sibling usually receives more lenient treatment, or even an absolutory excuse if there is no violence).
Defence Strategy
Sometimes, paying €500 in compensation before trial can save you months in prison by applying the mitigating factor of making good the harm. Your lawyer should guide you.
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You can simulate the effect of these circumstances on the statutory range with our sentence individualization calculator.
Frequently asked questions
What are mitigating and aggravating factors?
They are the circumstances that modify criminal liability and allow the penalty to be graded within the legal range set for the offence. The mitigating factors of Art. 21 CP lower it, and the aggravating factors of Art. 22 CP raise it.
What are the main mitigating factors under Art. 21 CP?
Among others: confessing the offence before knowing that proceedings are directed against you, making good the harm to the victim before trial, acting because of a serious addiction to drugs or alcohol, acting in a fit of passion or obfuscation, and extraordinary and undue delay in the proceedings.
What are the main aggravating factors under Art. 22 CP?
Among others: treachery, disguise or abuse of superiority, price, reward or promise, committing the offence for discriminatory motives, and reoffending (having previously been convicted of an offence of the same nature under the same title).
How does the mixed circumstance of kinship (Art. 23 CP) work?
It is a mixed circumstance: it can mitigate or aggravate liability depending on the nature, motives and effects of the offence. It usually aggravates offences against the person and mitigates certain property offences between relatives.
How much can a mitigating factor reduce the penalty?
It depends on whether it applies as a simple or highly qualified factor, or together with others. Its application requires imposing the penalty in the lower half of the range or, if it is highly qualified or two mitigating factors concur, reducing it by one or two degrees under the rules of Art. 66 CP.
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