Criminal Lawyers in Civil Liability & Reparation

Civil liability ex delicto regulated in Arts. 109-126 CP is the obligation arising from every criminal infringement to repair the damages caused to the victims. In patrimonial offences (fraud, misappropriation, unfair administration, asset concealment, money laundering), this civil dimension acquires decisive procedural prominence: the timely repair of the damage activates the specific mitigator of Art. 21.5 CP with potentially determinant effects to avoid imprisonment. The protected legal interest by the criminal civil liability system is the patrimonial indemnity of the victim and, mediately, the general preventive effectiveness of the criminal system through the incentive of voluntary repair. Consolidated Supreme Court case-law has developed extensive doctrinal body on the technical application criteria.

The content of civil liability ex delicto covers four main components under Art. 110 CP: (i) restitution of the subtracted asset or its equivalent when material restitution is not possible; (ii) damage repair in its modalities of natural repair, pecuniary indemnification or, where appropriate, payment in kind agreed with the victim; (iii) compensation of material and moral damages derived from the offence, including loss of earnings, expenses derived from the process and reputational impact; and (iv) the legal interest accrued from the date of the criminal act (not from the judgment), which in substantial amounts may significantly multiply the final amount. The subsidiary liability of Art. 120 CP reaches the employer of the author when the offence was committed in the performance of labour functions, the legal entity holding means or instruments used, and the administration when culpa in vigilando concurs.

The damage repair mitigator of Art. 21.5 CP is the most relevant procedural tool in patrimonial offences. It demands three requirements: (i) reparatory action (full return, judicial consignment, payment in kind, victim indemnification); (ii) temporal opportunity (prior to the start of oral trial sessions, according to consolidated case-law); and (iii) voluntariness of the author. The simple modality allows reducing the penalty in its lower half. The highly qualified modality, when the repair is substantial or full before trial, allows reduction by one or two degrees under Art. 66.1.2ª CP, which may transform a 4-year prison penalty into a 9-month suspendable sentence. Case-law has consolidated that the mitigator operates even though the author maintains innocence (ad cautelam consignment) and that the victim's rejection of money does not harm the mitigation.

The procedural repair strategy articulates four consolidated technical tools. First, the "ad cautelam" judicial consignment: unconditional deposit in the Court's Deposits and Consignments Account before oral trial, expressly indicating "for damage repair" and "available to the victim"; this consignment secures the mitigator while maintaining the main defence for acquittal (if acquittal, recovered; if conviction, the mitigator is applied). Second, plea negotiation with the Public Prosecutor under Arts. 787 and 779 LECrim: once the full damage is repaired, the Prosecution usually accepts the minimum legal penalty with highly qualified mitigation and favourable report for suspension. Third, deferred or fractional payment plans backed by real guarantees (mortgage, bank guarantee) when there is no immediate liquidity. Fourth, payment in kind through delivery of real estate, vehicles or other assets agreed with the victim after appraisal.

In current forensic practice, civil liability ex delicto and the repair mitigator constitute the most effective procedural tool in patrimonial offences to avoid effective imprisonment and, frequently, achieve suspension of execution. Organic Law 1/2025 on Justice Service Efficiency, Act 4/2015 on the Statute of the Crime Victim, the Criminal Procedure Act in its provisions on plea bargain and consolidated Supreme Court case-law configure the normative framework. Early strategic advice is fundamental: the decision on when and how to repair the damage requires rigorous analysis of available evidence, the quality of the defensive position and the possibilities of acquittal versus those of conviction. At Alonso Sala, with 15+ years' experience in economic offences, we advise each case individually with exhaustive technical-procedural analysis, articulating the most adequate repair strategy (ad cautelam consignment, strategic plea, payment plans) to maximise mitigators and preserve the client's freedom.