The crime of homicide and its types

The crime of homicide and its types

The crime of homicide consists of killing and taking the life of a person. The active subject can be any individual, while the passive subject is the “other living person”.

The Spanish Penal Code establishes two types of homicides: intentional and reckless. Within these categories, the norm includes a variety of penalties depending on the aggravating circumstances that appear.

Although many use the term as a synonym for murder, they are two different figures with also different legal treatments.

Types of homicide crimes in Spain

The types of crime of homicide in Spain are typified in the Organic Law 10/1995, of November 23 of the Penal Code. The latest modifications determine that there are two types.

1. Intentional homicide

The perpetrator of the act has knowledge and will to kill, which is known as animus necandi . It is a crime of result by which the intentional conduct of a subject causes the death of another.

This type of crime of homicide often enters into controversy with the crime of injuries . It is common that actions aimed at killing do not lead to that result and, nevertheless, cause injuries.

In this case, to determine if a crime of injury or a crime of attempted homicide is prior, indicative evidence will be necessary on:

• The means used to commit the crime, nature and characteristics.
• The suitability to cause death.
• The intensity in the attack.
• The relationship between the parties.
• All the circumstances of time and place that can be related to the criminal act.

2. Reckless homicide

The author executes a conduct that causes the death of a person without the will of it . It is a determining behavior in the result in which the active subject infringes the obligations of prevention, avoidability and care.

Two subtypes arise from reckless homicide.

Manslaughter by gross negligence

The mechanism of death occurs as a result of a negligence of a serious nature . Although there is no intention to kill, the active subject does not have the minimum necessary care to prevent the death of the victim from happening .

The Criminal Code includes specific cases of death as a result of gross negligence using  motor vehicles or mopeds, firearms or as a result of professional negligence .

1. Whoever causes the death of another through serious negligence, will be punished, as a prisoner of reckless homicide, with a prison sentence of one to four years.

If the reckless homicide was committed using a motor vehicle or a moped, the penalty of deprivation of the right to drive motor vehicles and mopeds from one to six years will also be imposed. For the purposes of this section, driving in which the concurrence of any of the circumstances provided for in article 379 determines the production of the act will be considered in any case as serious imprudence.

If the reckless homicide was committed using a firearm, the penalty of deprivation of the right to carry or possession of weapons for a period of one to six years will also be imposed.

If the homicide was committed due to professional negligence, the penalty of special disqualification for the exercise of the profession, trade or position for a period of three to six years will also be imposed.

Article 142.1 of the Penal Code

In the event that there are several deceased and the seriousness of the punishable act is greater, given the circumstances of the case, the Judge or Court may impose a higher penalty in a motivated manner.

This is the hyper-aggravated subtype of negligence in article 142 bis of the Penal Code.

In the cases provided for in number 1 of the previous article, the Judge or Court may impose a higher penalty in a reasoned degree, to the extent it deems appropriate, if the fact is of notorious seriousness, in attention to the singular entity and relevance of the risk. created and of the normative duty of care infringed, and would have caused the death of two or more people or the death of one and injuries constituting a crime of article 152.1.2.º or 3.º in the others, and in two degrees if the number of deaths was very high.

Less serious manslaughter

The risks posed by the author’s omission or reckless conduct are less risky. This subtype also includes those that cause death through the use of firearms or motor vehicles or mopeds.

2. Whoever, due to less serious imprudence, causes the death of another, will be punished with a fine from three months to eighteen months.

If the homicide was committed using a motor vehicle or a moped, the penalty of deprivation of the right to drive motor vehicles and mopeds for three to eighteen months will also be imposed. In any case, less serious imprudence shall be deemed to be that which is not classified as serious in which the commission of any of the serious infractions of traffic, motor vehicle circulation and road safety regulations has been decisive for the production of the act. The assessment of the existence or not of the determination must be assessed in a reasoned resolution.

If the homicide was committed using a firearm, the penalty of deprivation of the right to carry or possession of weapons for a period of three to eighteen months may also be imposed.

Except in the cases in which it occurs using a motor vehicle or a moped, the offense provided for in this section will only be prosecuted by means of a complaint from the aggrieved person or their legal representative.

Article 142.2 of the Penal Code

The criteria to determine the greater or less seriousness of the crime of reckless homicide are the verification of:

• Lack of adoption of the most basic precautionary measures for life, such as speeding on public avenues.
• The omission of due care according to what is normally socially established.

This crime can only be prosecuted by denouncing the victim . However, after the reform of the Criminal Code operated by Organic Law 11/2022, of September 13, modifying the Criminal Code in terms of recklessness in driving motor vehicles or mopeds , when death is caused using motor vehicles or mopeds, the complaint will not be necessary, it is a public crime .

This same law has included another important novelty regarding homicide due to less serious imprudence using a motor vehicle or moped. Now, the Penal Code requires that a judicial decision -motivated- be analyzed and justified whether or not the violation of traffic, circulation and road safety regulations has been determinant for the production of the homicidal act.

Preterintentional homicide: jurisprudence

The jurisprudence has established a third type of crime of homicide that does not appear expressly included in the Penal Code. This category includes those acts not covered by the intent or recklessness of the homicide.

The cases in which this figure is applied are those in which the perpetrator does not have the will to kill or acts negligently . His conduct de él has another purpose (for example, to injure), but the result is the death of the person.

The penalties for the types of crimes for homicide

The individual who commits an intentional homicide will be sentenced to a prison sentence of 10 to 15 years.

The penalty will be imposed in its upper half when any of the following aggravating circumstances occur:

• The victim is a minor under 16 years of age or a person who is vulnerable due to age, disability or illness.
• The homicide occurs after a sexual assault on the victim.
• The author of the criminal act belongs to a criminal group and organization .
• The crime of homicide constitutes at the same time the crime of assault .