Necessity and Insurmountable Fear: The Exemptions under Art. 20.5 and 20.6 CP

The Criminal Code does not only punish what is done: it also weighs the situation in which it was done. Among the grounds exempting from criminal liability under Art. 20 CP, two are argued frequently and accepted far less often: necessity under subsection 5 and insurmountable fear under subsection 6. Both start from the same idea — nobody can be required to act heroically — and both have strict limits.

You are accused of an offence you committed to avoid a greater harm

The defence's first decision is not which of the two exemptions to argue, but whether the account of events supports them. Both require a proven exceptional situation, not merely a plausible explanation. And both admit a lesser version — the partial exemption — which in practice resolves far more cases than the complete one.

It is worth first ruling out the more direct route: if there was a prior unlawful attack and the person reacted against the attacker, this is not the relevant ground, but rather self-defence under Art. 20.4 CP.

Necessity: the three requirements of Art. 20.5 CP

The provision exempts anyone who, in a state of necessity, harms another person's legal interest or breaches a duty in order to avoid harm to themselves or others, provided three requirements set out in the law itself are met:

• That the harm caused is not greater than the harm sought to be avoided. This is the central weighing exercise: the law does not require the harm avoided to be greater, only that the harm caused does not exceed it.
• That the state of necessity was not intentionally caused by the person concerned. Someone who creates the danger on purpose cannot later rely on it.
• That the person is not, by reason of their profession or office, under a duty to accept the risk. Certain professions assume a duty to face risks that excludes the exemption within their own field.

To these three legal requirements, practice adds one implicit in the very idea of necessity: that no reasonably available lawful alternative existed. If one did, the harm was not unavoidable and the exemption fails.

Weighing the harms: where these cases are lost

The comparison between the harm caused and the harm avoided is not made intuitively. It is made using verifiable criteria: the nature of the legal interests at stake, the seriousness and imminence of the danger, the intensity of the harm caused and whether it is reversible.

The other critical point is the alternative route. When the proceedings show that a lawful way out existed — an available benefit, an administrative channel, the possibility of seeking help — necessity ceases to be such in legal terms.

Insurmountable fear: Art. 20.6 CP

Subsection 6 is strikingly brief: exempt from criminal liability is anyone who acts driven by insurmountable fear. With no requirements listed, its content has been shaped by practical application around three demands:

• A harm that is real or reasonably believed to exist. The danger need not exist objectively, but the belief must be well founded given the circumstances.
• An intensity that removes the normal capacity to decide. Fear, anguish or environmental pressure are not enough on their own: the standard is fear that leaves no alternative that could reasonably be required.
• An objective standard for comparison. It is measured against what an average person could have withstood in the same situation, not against the particular sensitivity of the person invoking it.

This is the typical exemption in cases of coercion against a person or their family and in situations of prolonged violence. It is also the area where expert evidence is most useful, provided it is clearly distinguished from the field of the mental disorders or disturbances under Art. 20.1 CP, which follows a different logic.

If a requirement is missing: the partial exemption

Art. 21.1 CP turns into a mitigating circumstance the grounds set out in the preceding chapter, when not all the requirements needed to exempt liability are met. This is the realistic outcome in most of these cases.

Its effect is not minor. Art. 68 CP orders that the penalty one or two degrees lower than the one set by law be imposed, having regard to the number and significance of the requirements missing or present and to the offender's personal circumstances. This is a more far-reaching reduction than that of an ordinary mitigating circumstance among the rest of Art. 21 CP.

The strategic consequence is clear: arguing the complete exemption without also building, in the alternative, the partial one, leaves the case in an unnecessary all-or-nothing position.

What the defence looks at

• The minute-by-minute timeline. The currency of the danger and the imminence of the harm are proven with hours and sequences, not with adjectives.
• The alternatives that were genuinely available. Anticipate which ones the prosecution will point to and explain why they were not workable at that specific moment.
• The origin of the situation. Ruling out intentional provocation is an express legal requirement of Art. 20.5 CP.
• Proof of the fear. Prior reports, messages, witnesses from the person's circle and clinical reports predating the events carry far more weight than the defendant's own isolated statement.
• The fallback structure. The complete exemption, the partial exemption under Art. 21.1 CP and, failing that, ordinary mitigating circumstances: all three, in that order, in the defence submissions.

If you are accused of an offence committed in an extreme situation, reconstructing the context is the crux of the case, and it is prepared before giving your statement. You can contact us at +34 91 078 65 74.