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

The penalty for each offence is a range (for example, one to three years), and where the sentence ends up within it depends, above all, on the circumstances that modify criminal liability: the mitigating factors of Art. 21 CP, the aggravating factors of Art. 22 CP and the mixed circumstance of kinship of Art. 23 CP. Art. 66 CP then turns each combination into a specific band of the penalty.

This page is the overall map: it links each mitigating factor to its own analysis and develops the eight aggravating factors of Art. 22 one by one. The practical side of mitigating factors (how they are proved and when to ask for them to be treated as highly qualified) is covered in our strategy guide on mitigating circumstances. Quotations from the Criminal Code are our own translation of the Spanish text.

If you are charged with an aggravating factor or relying on a mitigating one: what it means and what happens next

Circumstances do not apply on their own. Aggravating factors must be sought by the prosecution (the public prosecutor and, where there is one, the private prosecutor, or "acusación particular") and must be proved; mitigating factors should be expressly raised and proved by the defence. In both cases, the court can only apply them on the basis of the facts that the judgment declares proven.

In practice, this means two things:

• An aggravating factor sought by the prosecution is not a conviction: it is a claim that the defence can challenge on the facts (there was no surprise attack, the earlier record had been expunged) and on its legal fit (the circumstance is already part of the offence, Art. 67 CP).
• Several mitigating factors depend on what the accused does and when: confession requires doing so before learning that judicial proceedings are directed against them, and making good the harm requires doing so before the oral trial is held. After that point, the mitigating factor is no longer available in its ordinary form.

Mitigating factors under Art. 21 CP: the seven circumstances

Art. 21 CP lists six specific mitigating factors and a seventh, open-ended one: the analogous mitigating factor. The table summarises what the law requires for each one and where it is developed on this blog.

The linked articles develop the requirements and the evidence for each mitigating factor; this page is limited to the map.

Aggravating factors under Art. 22 CP: the eight circumstances, one by one

Art. 22 CP contains eight aggravating factors and, unlike Art. 21, no analogy clause: the list is closed. If the facts do not fit one of them, the penalty cannot be increased because they resemble another. The table gives the overview; each factor is analysed below.

Treachery (22.1)

The law defines it: there is treachery when the offender commits "any of the offences against the person" using, in carrying it out, "means, methods or forms that tend directly or specifically to ensure it, without the risk to their own person that could arise from the defence put up by the victim". It applies only to offences against the person, and what is decisive is that the offender seeks or exploits the victim's defencelessness, as in a surprise attack. In homicide, treachery does not operate as a generic aggravating factor: it turns the act into murder, as explained in our analysis of murder under Art. 139 CP.

Disguise, abuse of superiority and circumstances of place, time or assistance (22.2)

The second aggravating factor groups several ways of committing the act that share a common basis: they weaken the victim's defence or make it easier for the offender to escape punishment. Disguise seeks to prevent identification; abuse of superiority exploits an imbalance of strength. The circumstances of place, time or the assistance of other people only aggravate if they serve that same function. That the act takes place at night or in an isolated spot is not enough on its own: the law requires those conditions to weaken the defence or make impunity easier.

Price, reward or promise (22.3)

Committing the act "by means of price, reward or promise" is an aggravating factor, that is, when the consideration is the reason for acting. In murder, price is one of the circumstances that define the offence (Art. 139.1.2 CP), so it cannot be taken into account again as a generic aggravating factor (Art. 67 CP).

Discriminatory motives (22.4)

The current text, as worded by LO 6/2022, aggravates committing the offence "for racist, antisemitic or anti-Roma motives or another kind of discrimination" relating to the victim's ideology, religion or beliefs, the ethnic group, race or nation to which they belong, their sex, age, sexual orientation or sexual or gender identity, gender-based reasons, aporophobia (hostility towards poor people) or social exclusion, any illness they suffer or their disability. LO 8/2021 had already added age, gender identity, aporophobia, social exclusion and the final clause; LO 6/2022 added anti-Roma motives.

The final clause matters to both the defence and the prosecution: the aggravating factor applies "regardless of whether those conditions or circumstances are actually present in the person against whom the conduct is directed". What is punished is the motive, not the victim's actual condition, which is why the evidence centres on the offender's motivation. Where the offence itself already punishes discrimination, Art. 67 CP prevents it from being added as an aggravating factor. The specific offences are covered in our defence guide on discrimination offences.

Cruelty (22.5)

It consists of "deliberately and inhumanly increasing the victim's suffering, causing them pain that is unnecessary for committing the offence". The law requires two things at once: suffering beyond what is needed to commit the offence, and the intention to cause it. Like treachery, it is an element of murder (Art. 139.1.3) and of the aggravated injuries of Art. 148 CP (Art. 148.2), and in those offences it is not counted twice.

Abuse of trust (22.6)

Taking advantage of a prior relationship of trust with the victim is an aggravating factor. The mere existence of the relationship is not enough: it must have been the means that made the act possible or easier. Where trust is already described in the offence, as with the abuse of personal relations between victim and fraudster in the aggravated fraud of Art. 250.1.6 CP, Art. 67 prevents it from also being applied as a generic aggravating factor.

Taking advantage of public status (22.7)

Being an authority or a public official (Art. 24 CP) is not what aggravates; what aggravates is "taking advantage" of that status, that is, using the position to commit or facilitate the offence. In offences that only an authority or a public official can commit, such as administrative malfeasance ("prevaricación administrativa") under Art. 404 CP, public status is already part of the offence and the aggravating factor does not apply (Art. 67 CP).

Reoffending (Art. 22.8 CP): requirements and effect on the penalty

This is the aggravating factor that depends most on a document, the criminal record sheet ("hoja histórico-penal"), so it can be checked requirement by requirement. Art. 22.8 CP reads, in full:

"There is reoffending when, at the time of the offence, the offender has been finally convicted of an offence included in the same title of this Code, provided that it is of the same nature. For the purposes of this point, criminal records that have been expunged or should have been, and those corresponding to minor offences, shall not be counted, save as provided for the offences aggravated by multi-recidivism of minor offences. Final convictions by judges or courts imposed in other Member States of the European Union shall have the effects of reoffending unless the criminal record has been expunged or could be expunged under Spanish law."

In practice, the requirements are:

• A final conviction before the new act: the earlier judgment had to be final on the date the new offence was committed, not on the date of the trial.
• Same title of the Criminal Code: theft and fraud are in the same title (offences against property and the socio-economic order); theft and bodily harm are not.
• Same nature: the same title is not enough; the two offences must also be "of the same nature", a requirement that the law does not define and that is assessed case by case.
• A record still in force: records that have been expunged "or should have been" are not counted (Art. 136 CP). You can check this with the criminal record expungement calculator.
• Minor offences: excluded, with the exception quoted above (for example, repeated theft under Art. 234.2 CP).
• Convictions in other EU Member States: they count on the same terms.

To review whether a specific record meets these requirements, you can use our reoffending checker.

As for its effect, simple reoffending is one more aggravating factor: with one or two aggravating factors, the penalty goes to its upper half (Art. 66.1.3 CP). Multi-recidivism has its own rule: if the offender has been finally convicted of at least three offences in the same title and of the same nature, the court "may" impose the penalty one degree higher, taking into account the previous convictions and the seriousness of the new offence (Art. 66.1.5 CP). That rule has existed since LO 11/2003 and is discretionary, not automatic. LO 1/2026 added to Art. 22.8 the exception for minor offences in the multi-recidivism offences; the changes are analysed in our post on LO 1/2026 and multi-recidivism.

The mixed circumstance of kinship (Art. 23 CP)

Art. 23 CP does not say whether kinship mitigates or aggravates. Its full text reads:

"It is a circumstance that may mitigate or aggravate liability, depending on the nature, the motives and the effects of the offence, that the victim is or has been the spouse or a person who is or has been linked in a stable manner by a similar relationship of affection, or is an ascendant, descendant or sibling by birth or adoption of the offender or of the offender's spouse or cohabiting partner."

Since LO 11/2003 it also covers relationships that have ended ("is or has been").

The law leaves the decision to the court: the same relationship can aggravate or mitigate, and the direction in which it operates depends on the nature, the motives and the effects of the offence in each case.

There are two limits. First, where the offence already describes the family or partner relationship, as with the domestic abuse of Art. 153.1 CP or the habitual violence of Art. 173.2 CP, Art. 67 prevents it from being assessed again as a circumstance. Second, in property offences kinship has a different legal figure: the family exemption ("excusa absolutoria") of Art. 268 CP. It does not reduce the penalty; it exempts the offender from criminal liability, leaving only civil liability, between spouses who are not separated and between ascendants, descendants and siblings (and relatives by marriage in the first degree who live together), provided there is no violence, intimidation or abuse of the victim's vulnerability. Its requirements are explained in our article on the family exemption between relatives.

How much each circumstance moves the penalty (Art. 66 CP)

For intentional offences, Art. 66.1 CP lays down mandatory rules. For an offence punishable by one to three years in prison, the result would be as follows:

Degrees are calculated under Art. 70 CP. For minor offences and offences of negligence, the courts apply penalties at their prudent discretion, without being bound by these rules (Art. 66.2 CP), except in the offences aggravated by multi-recidivism of minor offences. Each rule is developed in our analysis of Art. 66 CP, and you can test combinations with the sentence individualization calculator.

When a circumstance does not apply or does not extend to everyone (Arts. 65 and 67 CP)

Two articles limit the reach of circumstances:

• Ban on double counting (Art. 67 CP): the rules of Art. 66 do not apply to circumstances that the law has already taken into account in defining or punishing the offence, or to those so inherent in it that the offence could not be committed without them. This is the rule that excludes treachery in murder or kinship in the domestic abuse of Art. 153.1.
• Extension to participants (Art. 65 CP): circumstances of a personal nature (reoffending or kinship, for example) only affect the person in whom they are present. Those consisting of the material execution of the act or of the means used (such as treachery or disguise) only extend to those who knew of them at the time of the act or of their cooperation in the offence.

What to do (and what not to do) if your case turns on a circumstance

• Check the criminal record: the date each conviction became final, its title, its nature and whether it may already be expunged.
• Do not let the procedural moments pass: making good the harm must happen before the oral trial, and confession before you learn that judicial proceedings are directed against you.
• Document the mitigating factors: medical reports, proof of payment and a timeline of the periods when the case stood still.
• Challenge the aggravating factor on the facts and on its legal fit: whether the circumstance is part of the offence (Art. 67 CP), or whether a co-accused did not know of the means used (Art. 65.2 CP).
• Do not confess or pay without advice: a poorly planned admission of facts or payment can harm the defence without amounting to the mitigating factor.

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.