Undue Delay: the Mitigating Factor for a Slow Process in Spain (2026)

A criminal process that drags on for years causes real harm to the accused. The Criminal Code recognises this with the mitigating factor of undue delay. As criminal lawyers, we explain how it applies.

What Article 21.6 of the Criminal Code Says

Article 21.6 of the Criminal Code recognises as a mitigating factor the extraordinary and undue delay in the processing of the procedure, provided it is not attributable to the accused and is disproportionate to the complexity of the case.

The Requirements

• Extraordinary delay: a delay that clearly exceeds what is reasonable.
• Not attributable to the accused: not caused by their delaying tactics.
• Disproportion to complexity: the case was not complex enough to justify the delay.

The factor connects with the fundamental right to a trial without undue delay recognised in the Constitution and the European Convention on Human Rights.

Simple and Highly Qualified Factor

• Simple factor: requires the penalty to be imposed in its lower half.
• Highly qualified factor: where the delay is especially intense, it allows the penalty to be reduced by one or two degrees.

How It Is Asserted

The defence must invoke the factor in its pleadings and prove the chronology of the procedure: dates of the steps taken, periods of inactivity and the absence of complexity justifying it.