Mitigating and Aggravating Factors: What Raises and Lowers the Penalty? 2026 Guide

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).