Reparation Mitigation Without Admitting the Facts: the Supreme Court Applies It to a Partial Deposit

Spanish Supreme Court Judgment 486/2026 of 8 July (appeal 4018/2023) decides the appeal of a former elected head of a small local public body convicted of administrative malfeasance combined instrumentally with continuing embezzlement of public funds. Although the offence is specific, the two issues the judgment decides are of general reach: when a partial reparation by someone who still denies the facts allows the mitigating circumstance of Article 21.5 CP, and how civil liability must be calculated when there are two possible ways of measuring the loss.

If you are accused and want to repair the harm without admitting the facts: what it means and what happens next

Many defendants who maintain their innocence fear that paying the victim before trial amounts to admitting guilt. The judgment confirms that it does not. The reparation of harm mitigation now rests on a criminal policy aimed at protecting the victim, not on the offender’s contrition. What is required is an objective fact: having repaired, or reduced the effects of, the harm, with a significant amount and before trial.

In practice, this makes it possible to combine a defence on the merits, disputing authorship or classification, with a reparation strategy that reduces the sentence if a conviction follows. The key lies in how the payment is made: the judgment explains precisely which ways of paying into court count and which do not.

The case: a partial deposit years before trial

According to the findings of fact, the defendant, as head of a neighbourhood board, revoked on his own a hunting ground award made the day before, managed the ground personally and kept the income from it for several seasons, also paying certain costs of the ground with the body’s funds. The Provincial Court put the loss at 15,259 euros and sentenced him, with the highly qualified mitigating circumstance of undue delay, to one year and eleven months in prison and special disqualification from elected office for three years and eleven months.

Years before trial, the defendant had paid 3,470 euros into the court’s deposit account. His filing explained that this was the return of sums wrongly paid into his accounts, which he said he had not noticed until the proceedings began, and asked for the money to be handed to the injured body without waiting for the end of the case. The Provincial Court refused the reparation mitigation because it considered the amount small.

An objective mitigation: no remorse or confession required

The Supreme Court restates the settled doctrine on Article 21.5 CP. The mitigation rewards reparation of the harm, or reduction of its effects, in a broad sense: by restitution, compensation for loss or even redress of non-material harm. Its rationale is to encourage the person responsible to help repair the harm caused to the victim, because protecting the victim is no longer seen as a purely private matter but as an interest of the whole community.

Hence its objective nature. Citing the Chamber’s own earlier case law, the ruling states that the mitigation does not require evidence of acknowledgement of guilt, distress or remorse, and needs only two elements: a temporal one (reparation at any stage of the proceedings, with the trial as the cut-off) and a substantive one (actual reparation or reduction of the harm). A minimal personal component remains: the provision refers to the offender «having proceeded» to repair, that is, to the defendant’s own conduct, and the core act is repairing. But there is no need to admit the facts.

Applying this, the Chamber concludes that the core element was present: compensation was paid, albeit partially, before trial. The fact that the defendant tried to reconcile the payment with his claim of innocence does not prevent there being, in substance, a timely reparation.

Paying into court to settle is not the same as posting a bond

The most useful part of the judgment is the distinction between three situations that are often confused in practice:

• Attached sums. Sums obtained through attachment, or after a court order followed by a bond, are irrelevant to the mitigation. Here the defendant argued that part of his pension was being attached each month; the Supreme Court held that this does not count.
• Security bond. Relying on earlier case law of the Chamber, which it quotes, the ruling recalls that paying money into court before trial to comply with a bond order, securing payment in case a civil liability the defendant disputes is later declared, is not reparation: it is security. It does not support the mitigation.
• Deposit in payment. This is money paid in with the intention that it go to the victim immediately, without waiting for judgment. It can form the basis of the mitigation, as held in earlier Supreme Court judgments cited by the ruling.

This case was of the third kind: the deposit filing expressly asked for the sum to be delivered to the injured body. The Chamber adds a procedural point: since these facts appear in the case file itself, it could verify them in cassation by consulting the record, without resorting to the ground of error in the assessment of evidence.

Partial reparation: when it is significant

To support the mitigation, reparation must precede the trial and be significant. The case law does not reject partial reparation where it involves effort, because it still expresses the act contrary to the offence that inspires the mitigation. It is assessed mainly by the amount compared with the total loss, but also in light of the defendant’s financial position, family and social obligations and other circumstances that shaped the response.

Here, moreover, the small-amount argument lost force because the Supreme Court itself reduced the compensable loss, as explained below. The Chamber concludes that the mitigation cannot be denied to the defendant.

The effect on the sentence

The judgment acknowledges a difficulty: a highly qualified undue delay mitigation had already been applied with a two-degree reduction, and Article 66.1.2 CP allows a reduction of one or two degrees where there are two or more mitigating circumstances or one or more highly qualified ones. A further mitigation might therefore make no difference to the sentence. Even so, the Supreme Court grants it and, in its second judgment, orders a slight reduction: prison drops from one year and eleven months to one year and seven months, and special disqualification from three years and eleven months to three years and six months. It is a good example of how mitigating circumstances still count even when the sentence has already been reduced.

Civil liability: two calculation methods cannot be added together

The judgment also upholds the grounds on compensation. The Provincial Court had added two items: what the defendant would have had to pay as the holder of the hunting rights and the income from running the ground. The Supreme Court rejects this because the two methods are alternatives, not cumulative: adding them unjustly enriches the injured party, which would receive all the income from the ground without bearing its costs. It opts to count the sums the body should have received and which the defendant kept.

As the record in cassation did not allow a precise figure, the Chamber defers the assessment to the enforcement stage, under Article 115 CP, which allows the amount to be fixed in the judgment itself or at enforcement, and Article 794 of the Criminal Procedure Act, with the parties heard and the possibility of new evidence.

Practical points

• Document the purpose of the payment. The deposit filing should make clear that the money is placed at the victim’s disposal for immediate delivery, not as security.
• Do it before trial. The cut-off is the trial hearing; after that, only an analogous mitigation can be sought.
• Aim for a significant amount. The higher the proportion of the loss, the easier the mitigation and even its qualified form; if the amount is limited, show the effort it represents.
• Do not rely on attachments. What is collected through enforcement does not count.
• Check how the loss is calculated. Miscalculated compensation can be corrected in cassation and also affects the assessment of the reparation.

This commentary is for information only and does not replace a study of each case: whether, when and how to make a reparation must be decided with the whole defence strategy in view.