CRIMINAL LAW
Paraphrasing Luzón Cuesta, mitigating circumstances are incidental elements of a crime—they do not determine its existence but rather reflect reduced imputability, culpability, or unlawfulness, thereby mitigating the legally prescribed penalty. They need not coincide with the moment of the offense to apply.
To understand today’s concept of the mitigating circumstance of reparation, one must know its recent history:
The 1973 Penal Code included, among its mitigating factors under Article 9, the fact that the offender—before being aware of judicial proceedings and out of spontaneous repentance—had repaired or reduced the effects of the crime, satisfied the victim, or confessed the offense. With the 1978 Spanish Constitution, a new Penal Code was enacted in 1995, making reparation of victim damage a mitigating factor at any time before the oral trial.
Thus, the previous combined mitigating circumstance of reparation and confession was divided. Regarding the former, earlier legislation imposed several requirements: a chronological one (before awareness of proceedings), an objective one (repairing or reducing effects), and a subjective one (motivated by spontaneous repentance). The new Code relaxed the timing, allowing reparation up to just before the trial, and removed the subjective repentance requirement—focusing instead on encouraging victim reparation. Today, the State incentivizes the offender to lessen the victim’s hardship, even if motivated by self-interest, through a utilitarian aim, steering away from moralizing legislation in the Penal Code.
Despite the nearly thirty years of our current Code, practical uncertainties around this mitigation persist. Let’s analyze its application, starting with the essential: an unconditional reparation payment does not imply any admission of guilt.
Current controversies provide examples, such as the well-known Dani Alves case: the Barcelona Provincial Court (Section 21) on February 22, 2024, convicted Alves of rape while applying the reparation mitigating factor. In its 11th legal reasoning, it held that even if the victim rejected the €150,000 deposited by the accused in escrow unconditionally, that would not nullify the mitigation. However, it was considered only a basic rather than a highly qualified mitigation because “it was a small amount relative to his wealth” and because “sexual offenses cannot be economically repaired.”
The Superior Court of Justice of Catalonia, in Judgment 109/2025 of March 28, acquitted him, corrected the lower court’s reasoning, and added that discriminating access to reparation due to economic ability is condemnable, as the law does not provide for it. It cited Supreme Court Order 10156/2024, stating that the reparer’s economic capacity is not decisive in applying this mitigating factor, although it may be considered. Moreover, laws and jurisprudence allow quantification of damages in sexual offenses, such as Article 53 of Organic Law 10/22.
Other current issues were addressed in the Supreme Court’s May 5, 2025 ruling, which summarized its recent doctrine on the matter:
-The mitigation applies without need for repentance or fact acknowledgment, as the legislature removed subjective motives.
-However, it does not completely discard subjective elements—it must be performed by the offender (only he can provide such reparation).
-The judge applying the mitigation can consider personal elements of the reparer, but not to introduce subjective or personal judgments—rather, as part of an overall assessment.
-It rejects applying this mitigating factor when bail is provided to guarantee civil liability, as that does not relate to damage repair and is legally or judicially mandated (see Articles 783.2 and 589 of the Criminal Procedure Code).
Therefore, only an unconditional, irrevocable deposit by the accused—made exclusively to repair the victim—has mitigating effect, even if the victim renounces the amount offered, since the mitigation is not at the victim’s discretion. The Supreme Court’s insistence on objectifying this mitigating circumstance reflects the necessity of legal certainty guaranteed by the Constitution—especially today—promoting victim reparation while avoiding needless moralism.
