Negligent Homicide in Spain (Art. 142 CP): Gross vs Less Serious, Prison or Fine

Few criminal cases are as hard on everyone involved as those arising from a death nobody intended: the driver whose attention lapses, the person in charge of a site where a worker dies, the professional whose mistake proves irreparable. Any of them may end up under investigation for negligent homicide (homicidio imprudente), the offence in Article 142 of the Spanish Criminal Code (CP). This guide covers the current wording paragraph by paragraph, the line between gross and less serious negligence, the aggravation in Art. 142 bis CP where there are several victims, when the offence becomes time-barred and what happens with compensation.

What negligent homicide is

Negligent homicide is defined not by its result, the death, but by the way the person acted. In intentional homicide (Art. 138 CP) the offender wants to kill or accepts that possibility; in the negligent form there is no will to cause death, only a breach of the duty of care that, avoidably, ends in a death. Spanish law punishes negligence only where a provision expressly says so (Art. 12 CP), and Art. 142 does so for causing another person’s death.

The prosecution must prove conduct that breaches a duty of care, a resulting death and a causal link: the death must be the materialisation of the very risk the breached rule was meant to prevent. If it is shown that the death would have happened anyway, even with diligent conduct, there is no offence. The most common settings are road traffic, the workplace (see fatal workplace accidents), healthcare (see medical negligence resulting in a patient’s death) and firearms.

If you are under investigation for negligent homicide: what it means and what happens next

Being a person under investigation (investigado) is not the same as being charged: the judge is examining whether there is evidence that your conduct caused the death through negligence. In road cases, proceedings usually begin with the police report (atestado), which records the scene, the alcohol and drug tests and the witnesses. On that basis the Investigation Section of the Court of Instance opens preliminary proceedings (diligencias previas) and summons the suspect, who has the right to remain silent and to make a statement with a lawyer present (Art. 118 of the Criminal Procedure Act, LECrim). From there, the route depends on the classification:

• Gross negligence (Art. 142.1 CP): the abbreviated procedure (Art. 757 LECrim), with trial before the Criminal Section of the Court of Instance, because, without the Art. 142 bis aggravation, the prison term does not exceed five years and the other penalties do not exceed ten (Art. 14.3 LECrim).
• Less serious negligence (Art. 142.2 CP): it is a minor offence (delito leve), heard in a minor-offence trial before the Investigation Section (Art. 14.1 LECrim). Where no motor vehicle or moped was involved, a complaint from the injured party is also required.

What Art. 142 CP punishes: penalties and limitation periods, paragraph by paragraph

Each paragraph of the article covers one degree of negligence and adds penalties depending on the means used. Paragraph 1 is worded as amended by Organic Law 2/2019, and paragraph 2 as amended by Organic Law 11/2022, in force since 15 September 2022. The table sums up each case with its penalty and the limitation period for the offence (Art. 131 CP):

Gross negligence: 1 to 4 years in prison

Art. 142.1 punishes anyone who «por imprudencia grave causare la muerte de otro» (unofficial translation: "through gross negligence causes the death of another") with one to four years’ imprisonment. Negligence is gross when it breaches the most basic duties of care. Further penalties are added on a mandatory basis («se impondrá», "shall be imposed"), depending on the context:

• Motor vehicle or moped: a driving ban of one to six years; where the ban imposed exceeds two years, the licence ceases to be valid (Art. 47 CP).
• Firearm: loss of the right to own and carry arms for one to six years.
• Professional negligence (a doctor, an architect or any professional who breaches the lex artis of their field): special disqualification for three to six years. Because it can exceed five years, it makes the act a serious offence (Arts. 13.4 and 33.2 CP).

A prison term of up to two years can be suspended if the requirements of Art. 80 CP are met. Previous convictions for negligent offences do not stop the person being treated as a first-time offender (Art. 80.2.1.ª), and civil liability must have been paid or the person must undertake to pay it in line with their means. Suspension covers only the prison term: the driving ban and the disqualification are still served. And where the death was caused by conduct under Arts. 379 to 381 CP, such as driving over the criminal alcohol limit, Art. 382 requires the court to punish only the more serious offence, but in its upper half (see drink-driving accidents with injuries).

Less serious negligence: only a fine

Art. 142.2 punishes a death caused by less serious negligence with a fine of three to eighteen months, with no prison. With a motor vehicle or moped, a driving ban of three to eighteen months is also imposed (mandatory since Organic Law 11/2022; before, the court «podrá imponer», "may impose", it); with a firearm, the court may add the loss of the right to own and carry arms for the same period. Because the fine starts at three months, this is a minor offence (delito leve): Art. 13.4 CP classes as minor any offence whose penalty can be both minor and less serious, and Circular 1/2015 of the Public Prosecutor’s Office applies that rule expressly to Art. 142.2. Note the terms: «menos grave» here describes the negligence, not the offence, which is a minor one; the basic gross form under Art. 142.1 is a less serious offence (delito menos grave).

It also has its own rule on who may set proceedings in motion. In an unofficial translation: "Except where it is committed using a motor vehicle or moped, the offence in this paragraph may only be prosecuted on a complaint by the injured party or their legal representative." Outside road traffic, without a complaint there is no case, and an express pardon from the offended party before judgment extinguishes criminal liability (Art. 130.1.5.º CP). With a motor vehicle or moped the offence is prosecuted ex officio, so a pardon does not have that effect.

The line between gross and less serious

This is where the legal battle is fought. There is no closed list: what counts is the importance of the duty of care breached, the risk created and how foreseeable and avoidable the result was, assessed together, including how far the person could trust others to fulfil their own duties. Below this level sits slight negligence, which has not been a criminal offence since Organic Law 1/2015: it can only give rise to civil liability.

On the road, the law sets two rules. Art. 142.1 deems gross «en todo caso» ("in all cases") any driving in which one of the circumstances of Art. 379 CP «determinara la producción del hecho» ("determined the occurrence of the event"): driving under the influence of drugs or alcohol, above 0.60 mg/l in exhaled air or 1.2 g/l in blood, or more than 60 km/h over the limit in built-up areas or 80 km/h over it on interurban roads. And Art. 142.2 deems less serious any negligence «no calificada como grave» ("not classified as gross") in which a serious breach of traffic rules was decisive, a finding the court must make «en resolución motivada» ("in a reasoned decision"). In both cases the debate moves to causation: the breach must have determined the result.

Several victims: the aggravation in Art. 142 bis CP

Organic Law 2/2019, in force since 3 March 2019, added Art. 142 bis for incidents with several victims. In an unofficial translation:

"In the cases provided for in paragraph 1 of the preceding article, the judge or court may, giving reasons, impose the penalty one degree higher, to the extent it considers appropriate, if the act is of manifest seriousness, in view of the particular scale and relevance of the risk created and of the statutory duty of care breached, and has caused the death of two or more persons or the death of one and injuries constituting an offence under Article 152.1.2.º or 3.º to the others, and two degrees higher if the number of deaths is very high."

Four points follow from it:

• Only for gross negligence under Art. 142.1; less serious negligence is excluded.
• Two requirements at once: manifest seriousness, judged by the risk created and the duty breached, and a plural result (two or more deaths, or one death and others with injuries under Arts. 149 or 150 CP). The number of victims alone is not enough.
• Discretionary and reasoned: the court «podrá» ("may") raise the penalty and must explain why.
• How much: under the rule in Art. 70.1.1.ª CP, imprisonment runs from four years and one day to six years; with two degrees, reserved for a «muy elevado» ("very high") number of deaths, from six years and one day to nine years.

It does not apply to acts committed before it came into force (Art. 2.1 CP). The same reform created Art. 152 bis for negligent bodily injury; the background is in our analysis of Organic Law 2/2019.

Negligent homicide versus dolus eventualis

Not every extremely risky act is negligent. In conscious negligence, the person sees the danger but trusts that the result will not happen; with dolus eventualis (conditional intent) they foresee the result as probable and accept it, and the act becomes intentional homicide, punishable with ten to fifteen years’ imprisonment (Art. 138 CP). It is decided case by case, from external facts: how dangerous the conduct was, how long it lasted and what the person knew. Driving against the traffic at high speed or shooting towards a group are examples where the prosecution may argue dolus eventualis. The comparison with the intentional offences is in homicide vs murder in Spain.

When negligent homicide becomes time-barred

The limitation period depends on the maximum penalty laid down by law (Art. 131.1 CP) and, where the penalty is composite, on whichever requires the longest period (Art. 131.2):

• Gross negligence: five years. The maximum prison term is four years, and Art. 131.1 gives five years to «los demás delitos» ("all other offences").
• With a vehicle or firearm: also five years. Art. 131.1 looks only at imprisonment and disqualification; a driving ban or the loss of the right to carry arms is a different penalty depriving the person of rights (Art. 39 CP) and does not extend the period, even when it reaches six years.
• Professional negligence: ten years, because the disqualification of three to six years exceeds five: «prisión o inhabilitación por más de cinco años y que no exceda de diez» ("imprisonment or disqualification for more than five years and not exceeding ten").
• Less serious negligence: one year, as a minor offence, with or without a vehicle.
• Under Art. 142 bis: it would become ten years. Imprisonment can exceed five years, and the period is calculated on the maximum penalty the law allows, even where imposing it is discretionary.

Time runs from the day of the events (Art. 132.1 CP) and is interrupted when a reasoned court decision directs the proceedings against the suspect; a complaint (querella or denuncia) filed with a court and naming that person suspends it for up to six months (Art. 132.2). Where the death goes together with another offence, such as a road-safety offence or one against workers’ safety, the period for the more serious offence applies (Art. 131.4). The penalty imposed has its own limitation period: under Art. 142.2, a fine of more than three months is a less serious penalty and becomes time-barred after five years (Art. 133 CP; Circular 1/2015 of the Public Prosecutor’s Office). The general picture is in limitation periods for criminal offences.

Civil liability: the traffic scale and insurers

Anyone criminally liable is also civilly liable if the act caused loss (Art. 116 CP). In road traffic cases, compensation is calculated with the assessment system of the Spanish motor insurance and civil liability legislation, reformed by Law 35/2015: the traffic scale (baremo), which outside road traffic can serve as a non-binding reference. The insurer is directly liable up to the limit of the cover (Art. 117 CP). The Supreme Court judgment of 4 June 2026 (appeal 6592/2023) confirmed that compensation for the temporary injuries the victim suffered while alive, a claim that passes to the heirs, is compatible with the compensation owed to those harmed by the death.

If the victim contributed to the harm, the court may reduce the compensation (Art. 114 CP). Repairing the harm also counts in criminal terms: it is a mitigating circumstance if done before the trial (Art. 21.5 CP), although in negligent offences the judge sets the penalty at their discretion, without the rules of Art. 66.1 (Art. 66.2 CP).

Defence lines in negligent homicide

• Challenging the classification. Moving from gross to less serious swaps prison for a fine and a five-year limitation period for a one-year one.
• Attacking causation. If it is shown that the result would have happened anyway, a decisive outside factor intervened or the breach was not decisive, attribution of the result breaks down.
• The conduct of the victim and of third parties. It can reduce the seriousness of the negligence and, on the civil side, the compensation.
• Technical expert evidence: accident reconstruction, speed, biomechanics or lex artis.
• Limitation, dolus eventualis and Art. 142 bis. Checking the periods, above all the one-year period, and challenging the reasoning where the prosecution raises the facts to dolus eventualis or to the aggravation.
• Repairing the harm and plea agreements. Repairing the harm improves the defendant’s position, and in the abbreviated procedure a plea agreement (conformidad) is possible (Arts. 784.3, 785 and 787 ter LECrim).

The judgment must explain why the negligence is gross rather than less serious; insufficient reasoning can ground an appeal.

What to do (and what not to do) if you are investigated for negligent homicide

• Do not make a statement without a lawyer: you may decline to give one until you have legal assistance (Art. 118 LECrim).
• Keep the evidence: recordings, photographs, witness details and the vehicle, which should not be repaired before an expert can examine it.
• Notify your insurer promptly: it usually bears the compensation.
• Do not explain what happened outside the proceedings, including on social media: it may end up in the case file.

With over 15 years of experience in criminal law, we can study your case: see our defence in negligent homicide cases, or call us on +34 91 078 65 74.