Undue Delay: the Mitigating Factor for a Slow Process in Spain (2026)
In this article
Key Takeaways
- Mitigating factor of Art. 21.6 Criminal Code
- The delay must not be attributable to the accused
- Highly qualified: reduces the penalty by one or two degrees
- Key: documenting the periods of standstill
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. As a simple factor it requires the penalty to be imposed in its lower half; as a highly qualified factor, where the delay is especially intense, it allows the penalty to be reduced by one or two degrees. The key to applying it is to identify and document the specific periods in which the case stood still with no procedural activity.
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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.
The periods of standstill
To apply the factor it is advisable to identify and document the specific periods in which the case stood still with no procedural activity. That is the proof of delay.
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.
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Frequently asked questions
What does Article 21.6 of the Criminal Code establish about undue delay?
It 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 mitigating factor connects with the fundamental right to a trial without undue delay recognised in the Constitution and the European Convention on Human Rights.
What requirements does the mitigating factor of undue delay require?
Three: that the delay be extraordinary, that is, a delay that clearly exceeds what is reasonable; that it not be attributable to the accused, meaning it was not caused by their delaying tactics; and that there be disproportion to the complexity of the case, meaning the case was not complex enough to justify the delay.
How much can the mitigating factor of undue delay reduce the penalty?
It depends on the severity of the delay. As a simple factor it requires the penalty to be imposed in its lower half. As a highly qualified factor, where the delay is especially intense, it allows the penalty to be reduced by one or two degrees.
How is the mitigating factor asserted in proceedings?
The defence must invoke it in its pleadings and prove the chronology of the procedure: dates of the steps taken, periods of inactivity and the absence of complexity justifying the delay. The proof of the delay lies in the specific periods in which the case stood still with no procedural activity.
What is the decisive evidence of the delay?
The periods of standstill. To apply the mitigating factor it is advisable to identify and document the specific periods in which the case stood still with no procedural activity. Good chronological work can translate into a substantial reduction of the penalty.
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