Comprehensive Study Notes on Crimes against Life and Fetal Integrity
Legal Interest and Object of Independent Human Life
The fundamental legal interest protected under crimes against independent human life is the living human individual. The Constitutional Court (STC) 53/85 defines independent human life as a "process, a becoming, a continuous entity subject to qualitative changes over time." This life is not only a fundamental right under Article of the Spanish Constitution (CE) but also serves as the "superior value of the constitutional legal order" and the "ontological presupposition" without which no other rights could exist. Identical sentiments are reflected in STC 120/1990 and STC 154/2002. Homicide is characterized as a resultative crime, allowing for both action and omission modalities, provided that omission is equivalent to action under Article . The behavior must be objectively capable of causing death from an ex ante perspective. If the perpetrator erroneously believes their inadequate behavior is lethal, it is classified as an "unfit" or "unreal" attempt (tentativa inidónea), as seen in ATS 441/16.
The material object of the crime is the living human being. Determination of the start of independent life is crucial to distinguish between crimes against life in formation (abortion) and crimes against independent life (homicide/murder). Civil criteria, such as Article and of the Civil Code (CC)—which require entire detachment from the maternal womb for legal personality—are not binding for criminal law. According to majority jurisprudence, birth occurs with total separation from the mother via the cutting of the umbilical cord. In cases of doubt regarding whether death occurred during birth, the principle of "in dubio pro reo" often leads to an abortion classification. Minority views (STS 2252/01) argue that the start of labor (dilation phase) marks the beginning of independent life. For birth to be considered successful, the newborn must exhibit autonomous pulmonary respiration. Some doctrine also requires "viability," meaning the logical possibility of survival without physiological maternal dependence. Conversely, the end of independent life occurs at death, defined by the irreversible cessation of bio-electrical brain activity (RD 2070/1999). If a perpetrator attempts to kill someone already dead, it is an unfit attempt at homicide; if they know the person is dead but act anyway, it falls under crimes against the respect of the deceased (Art. ).
Intentional Homicide and the Proof of Intent
Article governs intentional homicide ($homicidio\,doloso$). Distinguishing between attempted homicide and completed intentional injury requires identifying the perpetrator's intent: "animus necandi" (intent to kill) versus "animus laedendi" (intent to injure). Courts (STS 803/22) rely on objective indicators to deduce this intent, categorized into three temporal groups. Simultaneous indicators are considered "first degree" and include the vital nature of the body part targeted, the lethal potential of the weapon, the intensity of the attack, and the repetition of strikes. Anterior indicators (second degree) involve the prior relationship between the perpetrator and victim, while posterior indicators involve behavior after the act, such as helping the victim or fleeing. If the means used are objectively lethal but the attack is of low intensity, courts may apply Article (injuries with a dangerous instrument) instead of homicide.
Two theories exist regarding the relationship between the intent to kill and the intent to injure. The "Unity Theory" (majority doctrine) suggests that the intent to kill encompasses the intent to injure. The "Opposition Theory" (majority jurisprudence) argues they are mutually exclusive. Regarding causal errors, an "error in the causal course" leads to an attempt if the result is not objectively attributable to the specific risk, or completed homicide if the deviation is irrelevant. In cases of "error in personam," if the victim holds special protection (e.g., the King), it is a concurso ideal between homicide and a crime against the Crown (Art. ). If the victim enjoys the same level of protection as the intended target, the error is irrelevant. In "aberratio ictus" (deviation of the blow), majority jurisprudence applies the "dolus generalis" doctrine to find completed homicide, whereas others see a competition between attempted homicide and reckless homicide.
Reckless Homicide and Road Safety Reforms
Article governs reckless homicide ($homicidio\,imprudente$). Prior to LO 1/15, there was a distinction between "grave" (serious) and "light" imprudence. The reform replaced "light" with "less grave" ($menos\,grave$), relegating light negligence to civil law. Grave imprudence involves violating elementary rules of care that even the least diligent person would observe (STS 721/20). Less grave imprudence involves violating non-elementary rules. For motor vehicle accidents, LO 2/19 and LO 11/22 established that certain infractions, such as exceeding the speed limit by in urban areas or interurban, or driving under the influence (Art. ), automatically constitute grave imprudence.
Sanctions for reckless homicide include imprisonment or fines. Under Article , the penalty can be increased by one degree if the act causes death to two or more people, or two degrees if the death toll is very high. In medical contexts, "professional imprudence" requires the disqualification from practicing the profession (Art. ). Courts distinguish between "professional imprudence" (violating the inner rules of the craft) and the "imprudence of a professional" (standard negligence by a skilled worker). In medical cases, a diagnosis error (error in diagnosis) only leads to homicide charges if the error is exceptionally grave. Homicide through less grave imprudence (Art. ) requires a complaint from the victim except in vehicle cases, which are pursued ex officio.
Murder and Its Specific Qualifiers
Murder ($asesinato$), governed by Articles and , is generally considered an aggravated form of homicide. It requires the concurrence of specific qualifiers:
Treachery ($alevosa$): This qualifier increases the objective danger by ensuring execution without risk to the perpetrator. There are three types: sudden/surprise attacks, "proditoria" (ambush/traps), and taking advantage of the victim's helplessness ($indefensin$), such as killing a child, the elderly, or someone sleeping. Majority jurisprudence treats the killing of minors as inherently treacherous ($alevosa\,convivencial$), though some doctrine argues this is actually an "abuse of superiority" unless the perpetrator actively prevents third-party help.
Price, Reward, or Promise: This is a subjective qualifier where the mobile for the crime is economic. The perpetrator must act driven by the motivation of the reward, even if they have not received it yet. Jurisprudence is divided on whether this qualifier communicates to the person offering the price (the inductor).
Cruelty ($ensaamiento$): This involves deliberately and inhumanely increasing the victim's suffering. It must involve suffering that is objectively unnecessary for the production of death. Some courts require the victim to be conscious and alive, while others focus on the prolonged nature of the attack.
Facilitating another crime or avoiding discovery: This qualifier applies when the homicide is committed to enable another crime or to cover it up. Article creates a penalty of to years. LO 1/15 introduced these to target "medial competition" cases.
Under Article , murder can be punished with "Permanent Reviewable Prison" (qualified murder) if the victim is under or is especially vulnerable, if it follows a crime against sexual freedom, if committed by members of organized crime, or if the perpetrator has been convicted of killing more than two people.
Suicide and Euthanasia
Spanish law views suicide as an "agere licere" (a permitted act) that remains unpunished, however, assisting others in suicide is criminalized under Article . Inducing someone to commit suicide is punished as a form of participation (Art. ). Cooperation in suicide is divided into "necessary non-executive" (Art. ) and "executive" (Art. —killing the person at their request). STC 19/23 clarified that while there is no constitutional "right to die," individuals have autonomy over their death in situations of terminal suffering.
Euthanasia is regulated by Article and LO 3/2021. Active direct euthanasia involves acts that directly cause death to a patient with a grave, incurable disease. Under Art. , this is unpunished if performed according to the Organic Law on Euthanasia. Passive euthanasia (withholding treatment) is generally atypical because there is no obligation to maintain life against a patient's will. "Therapeutic obstinacy" (continuing hopeless treatment) is considered an attack on dignity. For legal euthanasia, the patient must make an express, serious, and unequivocal request. Special cases like hunger strikes in prisons involve the state being in a "guarantor position," where forced feeding is often justified by courts to prevent death.
Abortion: Legal Framework and Penalties
Abortion involves the destruction of human life in formation (dependent life). Protection begins at nidation (approx. days after conception) and ends at birth. The current system is a "mixed model" under LO 2/2010 (recently modified by LO 1/2023). It allows abortion on request within the first weeks. Beyond this, it is permitted under three indications: therapeutic (risk to the mother's health), embryopathic (grave fetal anomalies), and extreme cases (incompatibility with life).
Crimes of abortion include:
Article : Abortion without consent or with vitiated consent (violence, threat, or deceit). This carries the heaviest penalty ($48 years). \n- Article 145.1: Abortion with consent but outside legal parameters. \n- Article 145\,bis: Abortion by a doctor that meets timeframe/indication requirements but fails formal procedures (e.g., missing medical reports). LO 1/2023 removed the previously required "three-day reflection period" and the mandatory provision of a closed envelope with social aid information. \n- Article 146: Reckless abortion caused by third parties. The pregnant woman is always exempt from punishment for reckless abortion.\n\nMedical indications require prior certification by a specialist. Therapeutic and embryopathic abortions are limited to the first 22 weeks of gestation, based on the threshold of fetal viability. Under STC 44/23, the "timeframe system" ($sistema\,de\,plazos$) was ruled constitutional, shifting the focus from a conflict of interests to the pregnant woman's fundamental right to physical and moral integrity under Article 15 CE.\n\n# Fetal Injury\n\nArticles 157158157 covers intentional ($doloso$) injury, including "eventual intent" where a perpetrator attacks a woman knowing the risk to the fetus. Article 158 establishes liability for "grave professional imprudence," carrying disqualification penalties for doctors while providing a complete excuse for the pregnant woman in reckless cases. If the behavior leads to the death of the fetus, it is treated as an abortion rather than fetal injury.\n\n# Questions & Discussion\n\n**Does the right to life imply a duty to live?**\nNo. STC 19/23 (regarding Euthanasia) established that while the state must protect physical existence, it cannot impose an unconditional duty to live that prevents autonomous decisions in situations of incurable suffering. \n\n**What is the difference between Treachery (Alevosia) and Abuse of Superiority?**\nIn treachery, the victim's ability to defend themselves is effectively zero (e.g., a sudden gunshot from behind). In abuse of superiority, the victim's defense is reduced but not completely eliminated (e.g., a physically larger person attacking a smaller person who can still struggle).\n\n**Is the pregnant woman punished in cases of reckless abortion?**\nNo, Article 146$$ explicitly contains an "excuse absolutoria" that exempts the pregnant woman from criminal responsibility for her own negligence resulting in abortion.
How does the law handle Jehovah's Witnesses and blood transfusions? If an adult Witness refuses a life-saving transfusion, majority doctrine holds that the doctor is not in a guarantor position and should respect the patient's religious freedom. However, if it involves a minor, the Supreme Court (STS 27-06-97) has convicted parents of reckless homicide by omission if they prevent a necessary transfusion, although STC 154/02 later ruled that forcing a 13-year-old who holds religious beliefs can violate religious freedom rights.