Serious, less serious and minor offences: the three-tier system of article 13 CP
The Spanish Criminal Code classifies every criminal infringement into three categories according to the penalty the law attaches to it (art. 13 CP): serious offences are those punished with a serious penalty, less serious offences those punished with a less serious penalty, and minor offences those punished with a minor penalty. The classification therefore does not depend on the social gravity of the act or on the penalty eventually imposed in the judgment, but on the penalty set in abstract by the applicable provision. Minor offences took the place of the former "faltas" in 2015, and very practical consequences hang on that label: the procedure through which the case is tried, the limitation period, the operation of the aggravating circumstance of recidivism and the time needed to expunge the criminal record.
The classification of penalties under article 33 CP
To know whether a penalty is serious, less serious or minor you must consult the closed lists of art. 33 CP, which look at the nature and duration of the penalty.
Serious penalties (art. 33.2 CP)
Serious penalties include: reviewable permanent imprisonment; imprisonment of more than five years; absolute disqualification; special disqualifications and suspension from public employment or office for more than five years; driving bans or deprivation of the right to keep and carry weapons for more than eight years; prohibitions on residing, approaching or communicating for more than five years; and deprivation of parental authority.
Less serious penalties (art. 33.3 CP)
Less serious penalties include: imprisonment of three months up to five years; special disqualifications and suspension from public employment or office of up to five years; driving bans or weapons deprivations of one year and one day to eight years; prohibitions on residing, approaching or communicating of six months to five years; a fine of more than three months; the proportional fine, whatever its amount; and community service of thirty-one days to one year.
Minor penalties (art. 33.4 CP)
Minor penalties include: a fine of up to three months; permanent localisation of one day to three months; community service of one to thirty days; driving bans or weapons deprivations of three months to one year; the prohibition on residing in certain places for less than six months; and prohibitions on approaching or communicating with the victim of one month to under six months. Note that there is no minor tier for imprisonment: any offence punished with imprisonment is, at the very least, less serious.
The rule of article 13.4 CP: penalties straddling two categories
Many penalty ranges span tiers belonging to two different categories. Art. 13.4 CP settles these cases with two rules pointing in opposite directions. First: where the penalty, by its span, can be included at once among the serious and the less serious penalties, the offence is deemed, in every case, serious. Second: where the penalty, by its span, can be regarded as both minor and less serious, the offence is deemed, in every case, minor. The asymmetry is deliberate: at the upper border the harsher treatment prevails, and at the lower border the more benign one — the latter introduced by the 2015 reform to channel such cases into the trial for minor offences. A classic example: a fine of two to six months covers the minor tier (up to three months) and the less serious tier (more than three months); under art. 13.4, the offence is minor and is tried as such. This happens, for instance, with minor threats under art. 171.7 CP against the persons listed in art. 173.2 CP, punished — among other penalties — with a fine of one to four months. By contrast, a prison range of four to six years reaches into serious-penalty territory (imprisonment over five years) and makes the offence serious for all purposes.
Why the classification matters: four practical consequences
The applicable procedure
Minor offences are tried through the trial for minor offences of arts. 962 et seq. LECrim: a swift procedure with direct summons to trial, in which a lawyer is not mandatory — though highly advisable — and where the general rules on defence only apply when the minor offence carries a fine whose upper limit is at least six months (art. 967.1 LECrim). Less serious offences are investigated as preliminary proceedings and tried through the abbreviated procedure (art. 757 LECrim, custodial penalties of up to nine years), with the possibility of a fast-track trial where there is a police report with a detained or summoned suspect and flagrancy, a listed offence or a simple investigation (art. 795 LECrim). Serious offences follow the abbreviated procedure if the prison penalty does not exceed nine years and, above that threshold, the ordinary committal proceedings ("sumario").
The limitation period
Minor offences are time-barred after one year, like slander and libel (art. 131.1 CP). Less serious offences are time-barred, as a general rule, after five years. For serious offences, the period scales with the maximum penalty: ten years where the maximum imprisonment or disqualification exceeds five years without exceeding ten, fifteen where it exceeds ten, and twenty where the maximum penalty is imprisonment of fifteen years or more.
Recidivism
The aggravating circumstance of recidivism under art. 22.8 CP requires a prior final conviction for an offence under the same title and of the same nature, but it expressly excludes from the count records that have been or should have been expunged and those corresponding to minor offences, with the sole exception of the aggravated subtypes based on repeated minor offending (such as art. 234.2 CP for theft). A conviction for a minor offence therefore does not make a repeat offender of someone who offends again.
Criminal records and their expungement
A conviction for a minor offence does create a criminal record, but it is expunged within the shortest period in the system: six months from the extinction of the penalty, without reoffending (art. 136.1.a CP). Less serious penalties are expunged after two, three or five years depending on their length, and serious penalties after ten years.
Common scenarios: from petty theft to drink-driving
The minor offences most often seen in practice are property offences and low-level personal offences: theft of up to €400 (art. 234.2 CP, fine of one to three months), fraud of up to €400 — now in the third paragraph of art. 248 CP after the reordering by Organic Law 14/2022, which moved computer and card fraud to art. 249 —, minor injuries under art. 147.2 CP and battery without injury under art. 147.3 CP, minor threats under art. 171.7 CP and minor coercion under art. 172.3 CP. Conversely, beware of offences that feel minor but are legally less serious: driving under the influence of alcohol or drugs under art. 379 CP, theft of more than €400 under art. 234.1 CP or any robbery under art. 237 CP, whose basic forms carry prison terms of up to five years. The difference is far from trivial: it changes the procedure, the need for a lawyer, the limitation period and how long the criminal record follows the convicted person.
How to use this test and its limits
In penalty mode, enter the abstract penalty range exactly as the law provides it — penalty type plus its lower and upper limits — and the tool will place it within the tiers of art. 33 CP, applying the art. 13.4 rule where needed. In scenario mode, pick one of the verified common offences. Bear in mind the limits of the test: where an offence carries several cumulative penalties, a single penalty of a higher category is enough to pull the offence into that category; aggravated or mitigated subtypes and the sentencing rules (attempt, complicity, highly qualified mitigating circumstances) can alter the applicable range; and the final legal characterisation of the facts always belongs to the court. In any real proceedings, the classification should be verified by a criminal defence lawyer with the case at hand.