Reparation of the Harm (Art. 21.5 CP): Requirements, Timing and Effects

Of all the circumstances in Article 21 of the Spanish Criminal Code, reparation of the harm is the one that depends most on the defence and the one that is handled worst. It requires no proof of states of mind and no expert evidence, it does not touch the question of guilt, and it works on an objective test. Even so, it is often lost for avoidable reasons: reparation comes too late, it is made without leaving a documentary trail, or it is confused with paying civil liability once the judgment is being enforced.

You have been reported and want to repair the harm: what Art. 21.5 CP says

Art. 21.5 CP treats as a mitigating circumstance the fact that the offender has repaired the harm caused to the victim, or reduced its effects, at any stage of the proceedings and before the trial hearing takes place. Three elements structure how it is applied.

The conduct: repairing the harm or reducing its effects. The provision covers both, and the second considerably widens the field: it takes in steps that do not restore the earlier position but do soften its consequences.

The recipient: the victim. Reparation is directed at the person who suffered the harm, not at the administration of justice or at unrelated third parties.

The timing: at any stage of the proceedings and before the trial hearing begins. That is the only time limit, and it is absolute.

An objective mitigating circumstance: no remorse required

The 1995 Criminal Code replaced the old concept of spontaneous repentance with an objective test, and that choice has consequences of the first order in practice. There is no need to show contrition, to apologise or to give up the defence. A defendant who denies the facts and asks for an acquittal can deposit the sum claimed and still have the mitigating circumstance applied if convicted.

The reason lies in criminal policy: what the legislator wants to encourage is effective protection of the victim, regardless of the inner attitude of the person making good the harm. That is also why reparation may be carried out by a third party on the defendant's behalf, provided it is done at the defendant's request and out of their assets or on their undertaking to bear the cost.

That objectivity has a flip side: intention alone is not enough. An offer of payment, a stated willingness to make good the harm or a general undertaking are not reparation. What the provision requires is a material act that can be verified on the file.

The cut-off: before the trial hearing

The provision allows no nuance on this point. Reparation must take place before the trial hearing begins: a deposit made that same morning, before the hearing starts, is within time; one made after the trial has begun is not.

From this follows a basic rule of case management: reparation is planned when the defence submissions are being prepared, not on the eve of the hearing. Gathering the money, obtaining the court's account number, making the payment and filing a submission evidencing it all takes days, and listed hearings do not wait.

It is also worth separating two levels that are often mixed up. Repairing before the trial triggers the mitigating circumstance; paying after judgment means discharging the civil liability that has been declared, with effects on enforcement, and on whether the sentence can be suspended, but no longer on the sentencing itself.

Partial reparation and financial means

The law does not require payment in full. By referring to reducing the effects of the harm, Art. 21.5 CP expressly takes in partial reparation, and the assessment is made in terms of relative effort: what is weighed is the relationship between what has been paid and the real financial capacity of the person paying it.

That test stops the mitigating circumstance from being reserved for people with assets, and it explains why a small sum accompanied by evidence of the financial position, such as payslips, tax returns, benefit certificates or existing attachment orders, can be worth more than a larger sum with no context. Documenting a lack of means is part of the work here, not an afterthought.

The same reasoning rules out token reparation: a minimal deposit made by someone with ample resources reflects no effort at all.

Court deposits, direct payment and insurers

The safest route is a court deposit: paying the sum into the court's deposit account at the disposal of whoever turns out to be the injured party. Its advantage is twofold. It evidences that the money was genuinely made available on a fixed date, and it works even where the injured party refuses payment or cannot be traced, because the mitigating effect depends on the defendant's conduct, not on someone else's acceptance.

Direct payment also counts, but it has to be documented precisely: a signed receipt, identification of what it relates to and of the case number, and filing on the court record. In evidential terms, a cash payment with no trail is a payment that never happened.

Payment by an insurer under a compulsory policy is a different matter. A payment made by the insurer in discharge of its own legal obligation, since Art. 117 CP makes insurers directly liable in civil terms within the limits of the compensation provided for by law or agreed by contract, does not express any effort at reparation by the defendant. For the mitigating circumstance to apply in these cases, what is usually required is a further contribution from the defendant's own resources, or personal involvement going beyond the mere existence of the policy.

Non-financial reparation: Art. 112 CP

Reparation is not limited to money. Art. 112 CP provides that it may consist of obligations to give, to do or to refrain from doing, which the court will set having regard to the nature of the harm and to the personal and financial circumstances of the offender, deciding whether they must be performed by the offender or may be carried out at their expense.

That framework allows forms of reparation that in some offences carry more weight than payment: returning stolen property, replacing what was damaged, taking down published material, a public correction in offences against honour, or carrying out the works needed to restore the previous position.

It helps to place all this in context. Art. 109.1 CP provides that committing an act defined by law as an offence gives rise to an obligation to make good the resulting loss and damage, and Art. 110 CP breaks that liability down into restitution, reparation of the harm and compensation for material and non-material loss. Art. 21.5 CP builds on that scheme but does not mirror it: it can be applied even where the reparation does not cover every head of loss.

Effect on the sentence and especially strong reparation

The effects are those of Art. 66.1 CP. A single mitigating circumstance brings the sentence into its lower half (rule 1). Two or more mitigating circumstances, or one especially strong one, with no aggravating circumstances, allow the sentence to be lowered by one or two degrees (rule 2). And where mitigating and aggravating circumstances both apply, rule 7 requires them to be weighed and balanced reasonably, with a reduction in degree if a qualified basis for mitigation remains.

Treatment as an especially strong mitigating circumstance is reserved for particularly substantial reparation: full and early payment of a significant sum, made with a demonstrable financial sacrifice and before the indictment is filed. It has most scope in offences against property, precisely because the harm can be quantified and the reparation can be complete.

In practice, reparation is rarely raised on its own: combined with confession under Art. 21.4 CP or with undue delay under Art. 21.6 CP it triggers rule 2 of Art. 66.1 CP, which is where the real step change lies. The overview of mitigating circumstances and the wider view of mitigating and aggravating factors in the Criminal Code complete that map.

Civil liability, suspended sentences and plea agreements

Reparation has a second benefit, often more important than the mitigating circumstance itself: it governs access to a suspended sentence.

Rule 3 of Art. 80.2 CP requires, as a necessary condition, that the civil liabilities arising from the offence have been satisfied and that any confiscation ordered in the judgment under Art. 127 CP has been given effect, and it specifies that the requirement is treated as met where the convicted person undertakes to satisfy them in line with their financial means and to facilitate the confiscation, and it is reasonable to expect that they will do so within the period the court considers appropriate. Art. 80.1 CP also requires the court to assess conduct after the offence, and in particular the effort made to repair the harm caused, while Art. 80.3 CP always makes exceptional suspension conditional on the harm actually being repaired or the loss compensated in line with what the convicted person can afford, or on compliance with the mediation agreement provided for in measure 1 of Art. 84 CP.

That interlocking explains why reparation is planned together with the overall procedural strategy, including any plea agreement and the reduction in sentence it carries and the apportionment of civil liability among several liable parties governed by Art. 116 CP.

How reparation is documented

What this mitigating circumstance is worth depends almost entirely on how it is carried out. This is the order we follow in our criminal defence work:

• Quantify early. Identify the sum claimed or foreseeable before the indictment arrives, so that reparation can be made with time to spare.
• Choose the route. A court deposit as a rule; direct payment only with a detailed receipt; reparation in kind where Art. 112 CP allows it and it carries more weight.
• Evidence the financial position where reparation is partial, with documentation that allows the effort to be measured.
• Put it on the file. A submission enclosing the receipt and expressly invoking Art. 21.5 CP in the provisional conclusions.
• Watch the calendar. Everything must be done and documented before the trial hearing begins.

If you have been reported and are considering repairing the harm, the useful conversation is the one held with the figure and the timetable in front of you. You can speak to us on 91 078 65 74.