Negligent Bodily Injury: Article 152 CP and the Line Between Gross and Less Serious Negligence

You do not have to intend to harm anyone to end up charged with an offence of bodily harm. A lapse at the wheel, a failure on a building site, a mistake in professional practice or a reckless manoeuvre can cause another person meaningful physical harm and, with it, give rise to an offence of negligent bodily injury. The Spanish Criminal Code (CP) punishes this conduct in Article 152 CP, which distinguishes two levels of seriousness with very different consequences: gross negligence, which can lead to prison, and less serious negligence, punished only with a fine. As criminal defence lawyers specialising in negligent injury, in this article we explain when carelessness becomes a crime, what penalties apply, and where the lines of defence lie.

What a negligent injury is

The negligent offence does not require any intention to cause harm. Unlike intentional injury — where the offender wants or accepts injuring the victim — in negligence the injurious result occurs without the offender wanting it, but as a consequence of having breached the duty of care that was required of them. The criminal reproach does not fall on a will to harm, which does not exist, but on the lack of diligence that triggered a foreseeable and avoidable result.

For that reason the negligent offence is built on three elements: a breach of the objective duty of care (failing to observe the applicable rules or precautions), an injurious result (an injury to another person) and a causal link connecting the two, so that the injury is precisely the materialisation of the risk created by the lack of care. If any of these elements is missing, there is no offence of negligent injury.

The decisive line: gross or less serious negligence

Article 152 CP does not punish all negligence in the same way. It draws a distinction between two categories that mark the difference between prison and a fine, which is why establishing into which one the conduct falls is the central question in many of these cases:

• Gross negligence (Art. 152.1 CP). This is an especially intense breach of the duty of care: a crude, elementary lack of diligence that anyone would have observed. It is the form that can carry a prison sentence.
• Less serious negligence (Art. 152.2 CP). This is a breach of the duty of care of lower intensity, which retains criminal relevance but is punished only with a fine and, moreover, can be prosecuted only on the complaint of the victim or their legal representative.

The line between the two does not follow any mathematical formula. It is the judge who assesses, case by case, the intensity of the breach of care, the magnitude of the risk created, how foreseeable the result was and the diligence required in that particular situation. Precisely because it can be graded in this way, the classification of the negligence is one of the great battlegrounds of the defence.

The penalties according to the severity of the injury

Within gross negligence, Article 152.1 CP does not set a single penalty; instead it grades the penalty according to the severity of the injury caused, referring to the intentional injury offences to measure that severity. The scheme is as follows:

• Injuries under Art. 147.1 CP (those requiring, in addition to first aid, medical or surgical treatment) → prison of three to six months or a fine of six to eighteen months.
• Injuries under Art. 150 CP (loss or disablement of a non-principal organ or limb, or disfigurement) → prison of six months to two years.
• Injuries under Art. 149 CP (the most serious: loss or disablement of a principal organ or limb or of a sense, impotence, sterility, serious disfigurement or a serious somatic or psychological illness) → prison of one to three years.

As can be seen, the penalty is decided not only by the carelessness but, above all, by the result: the same negligent manoeuvre can sit at the lowest or the highest end of the provision depending on the consequences it actually produces for the victim. That is why the correct medical-forensic substantiation of the injury and its lasting effects is decisive in setting the applicable penalty range.

The added penalties: driving licence, firearms and professional ban

On top of the prison or fine, Article 152.1 CP adds, depending on the means used, specific bans on rights that should not be overlooked, because they are often the ones with the greatest impact on the convicted person's daily life:

• Motor vehicle or moped. If the injuries are caused while driving, a ban on driving motor vehicles and mopeds is also imposed. It is the typical consequence of road accidents with injured people.
• Firearm. If the instrument was a firearm, a ban on the possession and carrying of weapons is added.
• Professional negligence. Where the result is produced through professional negligence — in the exercise of a profession carrying a special duty of care — a specific ban on practising the profession, trade or office is also imposed for the period set in the judgment.

The road accident: why the law deems it gross negligence

A large share of negligent injury offences arise from a road accident, and here the Criminal Code contains a rule worth knowing. The law deems gross negligence the driving of a motor vehicle or moped in which any of the circumstances of Article 379 CP is present: driving under the influence of alcohol over the criminal limit, under the effect of drugs or at a criminally relevant excessive speed.

The practical consequence is significant: where an accident with injured people occurs while one of those circumstances is present, the route of downgrading the conduct to less serious negligence is, as a rule, closed off — and with it the possibility of settling for a simple fine. The matter then sits within the gross offence of Article 152.1 CP, with the penalty corresponding to the injury and a ban on driving. If the standalone road-safety offence is also present, the concurrence rules specific to that field come into play.

Causation and unforeseeable accident: when there is no crime

Not every physical harm following an unfortunate event is a crime. The negligent offence requires the injury to be the materialisation of the risk created by the breach of the duty of care. If the injury is due to a cause entirely unrelated to the conduct of the person under investigation — the unforeseeable behaviour of a third party, an unavoidable technical failure, a chance event — the causal link may be broken and the attribution of the result may fall away.

In its extreme form, this leads to the unforeseeable accident: the harmful result that occurs despite acting with all the diligence required, in an unforeseeable and unavoidable way. An unforeseeable accident is not a crime; no one is criminally liable for what they could neither foresee nor avoid while acting with care. At most it may give rise to civil liability, but it falls outside criminal reproach. Distinguishing criminally relevant negligence from sheer misfortune is therefore one of the central tasks of the defence.

Lines of defence against a negligent injury charge

The fact that an injury occurred does not make a conviction automatic, nor does it predetermine its seriousness. These are the lines we work on in every case:

1. Downgrade the negligence from gross to less serious. This is the line with the greatest impact: establishing that the lack of care did not reach the intensity proper to gross negligence allows the conduct to be moved to Art. 152.2 CP, with the shift from prison to a fine. Here expert evidence on the diligence actually shown is decisive.

2. Deny the breach of the duty of care. Arguing that one acted with the required diligence and that the result was an unforeseeable accident — neither foreseeable nor avoidable — excludes criminal liability and leaves the matter, where appropriate, in the purely civil arena.

3. Break or qualify the causal link. Showing that the injury was due to a cause unrelated to the conduct of the person under investigation prevents the result from being attributed to them, even if some lesser breach of care could have existed.

4. Contest the severity of the injury. The specific classification within Art. 152.1 CP — and, with it, the penalty — depends on the real gravity of the injury and its lasting effects, which must be rigorously established by a medical-forensic report.

The settled case law of the Supreme Court on negligence requires a rigorous assessment of the intensity of the breach of the duty of care and reserves the classification of gross for cases of especially intense disregard, which opens up a genuine margin of defence in drawing the line between gross and less serious.

Specialist defence in Madrid and throughout Spain

At Alonso Sala we are a firm dedicated exclusively to criminal law, based at Velázquez 27, Madrid and covering the whole of Spain. We examine the mechanics of the event, the diligence actually required, the causal link with the injury and the specific severity of the harm in order to build the defence from the very first statement, directing it towards downgrading the classification of the negligence or, where appropriate, excluding criminal reproach altogether. If you are facing a charge of negligent injury — under Article 152 CP — having criminal defence from the outset of the proceedings is decisive, particularly because these matters, especially those arising from road accidents, usually begin as urgent proceedings and move quickly.