Crimes Against Life: Homicide, Murder & Jury Trial Defence

Crimes against independent human life (Title I of Book II of the Spanish Criminal Code, Arts. 138 to 143) protect the most valuable legal interest in the legal order: human life, mandate derived from Art. 15 SC. The criminal system distinguishes three main figures: intentional homicide (Art. 138 CP), murder (Arts. 139-140 CP) and negligent homicide (Art. 142 CP), along with cooperation and inducement to suicide (Art. 143 CP). Supreme Court doctrine has consolidated the technical criteria to differentiate intent to kill (animus necandi) from intent to injure (animus laedendi), the specific aggravating circumstances of murder (treachery, cruelty, price) and the prerequisites of reviewable life imprisonment (Art. 140 CP).

The commission modalities are varied. Intentional homicide sanctions whoever kills another with direct or conditional intent. Murder (Art. 139.1 CP) requires one of four specific circumstances: treachery (ensuring the result without risk, attacking by surprise, treason, victim's defenselessness while sleeping or with their back turned), cruelty (deliberately and inhumanly increasing the offended party's pain), price, reward or promise (contract killing) or killing to facilitate another offence or prevent its discovery. Aggravated murder (Art. 139.2 CP) concurs when two or more of the above coincide. Reviewable life imprisonment is reserved by Art. 140 CP for the murder of children under 16 or especially vulnerable persons, murder following a sexual offence against the victim, murder by members of a criminal group or organisation and offenders convicted of killing more than two people; outside Art. 140 it is also provided for terrorism causing death (Art. 573 bis), killing the King or a foreign Head of State (Arts. 485 and 605), genocide (Art. 607) and crimes against humanity causing death (Art. 607 bis). Negligent homicide (Art. 142 CP) applies to serious traffic accidents (alcohol, drugs, speed), medical malpractice, workplace fatalities and negligent hunting. Inducement and cooperation in suicide (Art. 143 CP) typifies different degrees of aid.

The statutory penalties reflect maximum gravity. Intentional homicide carries 10 to 15 years' prison; in the cases of Art. 138.2 CP (circumstances of Art. 140.1 or assault on authority under Art. 550), the penalty one degree higher, 15 years and 1 day to 22 years and 6 months. Simple murder (Art. 139.1), 15 to 25 years' prison; aggravated murder (Art. 139.2), the upper half of the range (20 to 25 years). Reviewable life imprisonment (Art. 140 CP) is the system's maximum penalty, reviewable at 25 years. Negligent homicide carries 1 to 4 years' prison (gross negligence) or a fine of 3 to 18 months (less serious negligence). Added to these is civil liability ex delicto (compensation to relatives via updated traffic scales, moral damages that can reach several hundred thousand euros), special disqualification and, in traffic accidents, driving licence withdrawal. Habitual precautionary measures include communicated provisional detention (especially in cases with flight risk or reoffending) and approach prohibitions to indirect victims.

The technical defence is built on four fundamental axes. First, degradation of the criminal type: dismantling the specific circumstances of murder (treachery, cruelty, price) reclassifies the qualification to intentional homicide, with radical punitive difference (10-15 years vs 15-25 years); ballistic expert evidence, complementary autopsy, 3D reconstruction and context analysis are determinative. Second, exemptions and mitigating factors: self-defence (Art. 20.4 CP) with its three requirements (illegitimate aggression, rational necessity of means, lack of provocation); insurmountable fear (Art. 20.6 CP); temporary mental disorder or full intoxication (Arts. 20.1 and 20.2 CP); outburst or obfuscation (Art. 21.3 CP), applicable in documented passionate crises. Third, absence of animus necandi: when only intent to injure concurs and death occurs in a way not covered by intent, conduct can be reclassified as preterintentional homicide (concurrence of intentional injury + negligent homicide). Fourth, expert challenge: the official autopsy is not infallible; private medical experts, forensic pathology specialists, ballistics, biomechanics and thanatochronology can detect determinative errors.

In current forensic practice, completed homicide and murder (Arts. 138 to 140 CP) are tried before the Jury Court (Organic Law 5/1995; attempts and negligent homicide are not), which radically changes the strategy: convincing 9 lay citizens requires pedagogical communication, client humanization, coherent narrative and meticulous demonstration of reasonable doubt. Organic Law 1/2015 incorporated reviewable life imprisonment; Organic Law 8/2021 on Childhood Protection added the mandatory loss of parental authority (Art. 140 bis.2 CP). Organic Law 1/2025 on Justice Service Efficiency, Act 2/2023 on Whistleblower Protection and consolidated Supreme Court and CJEU case-law on electronic evidence configure a demanding framework. At Alonso Sala, with more than 15 years of experience in crimes against life, we approach each case coordinating forensic medical experts, ballistics, biomechanics, forensic psychiatrists and accident reconstruction specialists. We articulate strategies adapted to both the Jury Court (with specific forensic oratory) and professional courts, also managing the media dimension that these cases usually entail.