Mitigating circumstance of reparation of the damage

Mitigating circumstances may be considered to be those accidental elements that do not condition their existence by revealing a lesser degree of imputability, guilt or unlawfulness, which determine a moderation of the penalty established for the crime or offence.

So, The article 21 of the Spanish Criminal Code contains the circumstances that mitigate criminal responsibility, which, without being a numerus clausus by virtue of its section 7, allows for the inclusion of ‘any other circumstances of similar significance to those contemplated,’ which deal with:

• Acting under the influence of a serious addiction to toxic drugs, narcotics or psychotropic substances
• Acting in a state of rage or blindness
• Confessing the crime to the authorities
• Repairing the damage caused to the victim
• Undue delay in the proceedings not attributable to the accused

In this post, we will analyse the mitigating factor of damage repair, where doctrine indicates that, as a mitigating factor that occurs after the crime has been committed, the basis does not emanate from a reduction of the injustice or culpability, but is necessarily linked to the civil liability arising from the act constituting the crime, even though its content and scope do not fully coincide.

The Second Chamber of the Supreme Court has pointed out that this type of mitigating factor is somewhat selective and discriminatory, given that it excludes people who lack financial resources. However, it also considers that it would be unfair to disregard it in cases where the perpetrator actively seeks to repair or mitigate the damage, and that exclusive financial compensation is certainly not necessary, given that this may be appropriate in cases where the property is returned, or when the perpetrator attempts to repair the effects of the crime by other alternative means through analogy.

The highest court also considers that it would be unacceptable for someone who, through sacrifice and abstinence, repairs even partially the damage caused by the crime committed to be granted a simple mitigating circumstance, while someone for whom full reparation requires no effort due to their financial solvency is granted a highly qualified mitigating circumstance.