Arrested for Homicide or Murder in Spain: What Happens

If you have been arrested in Spain on suspicion of homicide or murder, you face 10 to 15 years’ imprisonment under article 138 of the Spanish Criminal Code, or 15 to 25 years under article 139. Police custody cannot exceed 72 hours. Before you say anything, you are entitled to speak privately with your own lawyer.

Arrest in progress: call +34 652 28 99 82Message us on WhatsApp

What is the difference between homicidio and asesinato?

Do not map these onto the English terms you know. In Spain, homicidio is causing another person’s death intentionally, punished by 10 to 15 years (article 138.1 of the Código Penal). It becomes asesinato only where one of four listed circumstances is present, namely alevosía (an attack that removes any effective defence), payment or reward, ensañamiento (deliberately increasing the victim’s suffering), or killing to facilitate or conceal another offence. Premeditation alone does not make it murder. The Spanish Supreme Court treats asesinato as an aggravated form of homicide rather than a separate offence (STS 1813/2002, of 31 October).

When can a whole-life sentence be imposed?

Spain has prisión permanente revisable, an indeterminate sentence subject to judicial review once a substantial part of it has been served. It applies only to asesinato and only in the cases listed in article 140, namely where the victim is under 16 or particularly vulnerable through age, illness or disability, where the killing follows a sexual offence committed by the same person on that victim, or where the offender belongs to a criminal group or organisation. It also applies to anyone convicted of killing more than two people. It cannot be imposed for homicidio.

Is there a plea bargain in Spain?

Not for these offences, and this is the single most common misunderstanding among British and American clients. A negotiated verdict, known as conformidad, is only possible where the agreed sentence does not exceed six years’ imprisonment (article 50.1 of the Jury Act). Homicide starts at ten. Nor does admitting the facts end the matter, because the investigating judge remains under a duty to carry out all steps necessary to satisfy himself that the confession is true and that the offence occurred (article 406 of the Ley de Enjuiciamiento Criminal, the Spanish Criminal Procedure Act). A confession given without advice buys you nothing and costs you everything.

Will I get bail?

There is no bail system of the kind you know, and no bail bondsmen. What exists is prisión provisional, remand ordered by the investigating judge, or conditional release with or without a security. Remand requires an offence carrying a maximum of at least two years, sufficient grounds to believe you responsible, and a legitimate purpose, namely flight risk, a real and specific risk of evidence being destroyed, or protection of the victim (article 503). Flight risk is assessed on the nature of the offence, the sentence you face, and your family, employment and financial situation. For a foreign national with no property and no family in Spain, that last factor is the battleground, and it is won with documents, not assurances.

Where the offence carries more than three years, remand cannot exceed two years, extendable once by up to two further years by reasoned court order (article 504.2). If you are convicted and appeal, it may be extended up to half the sentence imposed. The Constitutional Court requires specific reasoning on why detention remains necessary and rejects automatic decisions (SSTC 333/2006, of 20 November, and 27/2008, of 11 February).

Remand hearing listed? Book a consultation and we will tell you which documents to gather

Will a jury decide my case?

Yes, and this surprises many people who assume Spain is a purely judge-led system. Homicide and murder under articles 138 to 140 are tried by the Tribunal del Jurado, made up of nine lay jurors and a professional judge who presides (article 2.1 of Organic Act 5/1995), sitting at the Audiencia Provincial, the provincial court. There is one important limit, because for offences against the person the jury only has jurisdiction where the offence was completed (article 5.1). An attempted killing is therefore tried by professional judges alone. The judgment can be appealed to the Civil and Criminal Division of the regional Tribunal Superior de Justicia (article 846 bis a) of the Criminal Procedure Act).

What are my rights as a foreign national?

Article 520 of the Criminal Procedure Act gives every detainee the right to remain silent, not to incriminate himself, to appoint his own lawyer, and to speak with that lawyer in private before making any statement. A lawyer you appoint must attend the police station within three hours of receiving the instruction. As a foreign national you are also entitled to a free interpreter if you do not speak Spanish, to have your consulate informed of your detention and where you are held, and to receive consular visits and correspondence. Exercising the right to silence cannot, by law, be used to infer a risk of destroying evidence for remand purposes (article 503.1.3 b).

What is actually defended in a killing case?

Rarely one thing alone. The first battleground is intention, because Spanish law infers it from external facts, namely the prior relationship between the parties, the defendant’s conduct before, during and after the incident, the weapon used, the part of the body targeted, the force and repetition of the blows, and how the sequence ended (STS 805/2021, of 20 October). If intention in any form is absent, the case falls to negligent homicide under article 142.1, carrying one to four years.

The second is alevosía, which requires four elements, namely an offence against the person, means objectively capable of removing the victim’s defence, intent directed at securing that advantage, and the greater wrongfulness that follows from it (STS 12/2019, of 17 January). Be warned that a prior fight does not automatically defeat it, since the Supreme Court finds surprise alevosía where the level of aggression changes qualitatively and unexpectedly (STS 1214/2003, of 24 September). The third is self-defence, where article 20.4 does not require proportionality between outcomes but the rational necessity of the means used, judged from the position of the person attacked and at the moment of the attack (SSTS 470/2005, of 14 April, and 614/2004, of 12 May).

What if you are the victim’s family?

Spain allows the injured party to join the proceedings as a private prosecutor, acusación particular, which has no direct equivalent in England or the United States. You are formally informed of this right when you first give evidence (article 109 of the Criminal Procedure Act), and standing does not depend on being the person who ultimately receives compensation (STS 797/2015, of 24 November). As a private prosecutor you may request investigative steps, frame your own charges independently of the public prosecutor, oppose discontinuance and claim damages. Joining early matters, because the steps that decide the trial are taken during the investigation.

What to do today, and what not to do

• Say nothing until you have spoken privately with your own lawyer, which you are entitled to do before any statement to the police, the prosecutor or the judge (article 520.6.d of the Criminal Procedure Act).
• Appoint a lawyer of your choice immediately. A family member abroad can do this on your behalf.
• Ask for an interpreter if you are not fluent in Spanish. Never sign a document you have not fully understood.
• Do not consent to any procedural step before your lawyer has explained its consequences, which is a duty imposed on him by law (article 520.6.c).
• Do not delete messages, photographs or call records. Deleted data is recovered during forensic extraction and its removal is then held against you.
• Do not discuss the case with witnesses, and not by telephone from prison.
• Gather proof of ties to Spain, namely municipal registration, employment contract, payslips, family documents, and medical reports if you were injured.

One final point, more useful than any promise. In a homicide case nobody can tell you the outcome in advance, and anyone who guarantees one is not being straight with you. What can be assessed from day one is which lines of defence are live, which are not, and which decisions taken in the next few weeks will shape a trial two years from now.

Frequently asked questions

If an arrest is under way, time is measured in hours and the outer limit is 72. Call +34 652 28 99 82 or write to us stating where the detainee is held, what offence is alleged and whether any statement has already been made. With those three facts we can tell you what is urgent today. We act throughout Spain from Madrid, Ibiza, Málaga and Palma de Mallorca, in English, Spanish, German and Polish.

Call +34 652 28 99 82Contact the firm

David Fechenbach Marcos. Managing Partner at Fechenbach Abogados, Associate Professor of Criminal Procedure at the University of Alcalá. Professional profile.

This content is for general information only and does not constitute legal advice. Every case requires individual assessment.