Spanish Supreme Court Criminal Chamber, Damage repair mitigating factor (Art. 21.5 CP): requirements and scope 2024
The damage repair mitigating factor under Art. 21.5 CP allows sentence reduction when the accused repairs harm before trial. We analyse TS requirements: voluntariness, sufficiency of repair, procedural timing and application as a highly qualified mitigating factor.
Art. 21.5 CP: the damage repair mitigating factor
Art. 21.5 CP provides as a mitigating factor:
"Having proceeded to repair the harm caused to the victim, or diminish its effects, at any time in the proceedings and before the trial hearing."
TS requirements 2023-2024
Voluntariness (STS 456/2024): Must be spontaneous, not forced. Consignation the day of trial after attempts to delay proceedings lacks the required voluntariness.
Sufficiency (STS 678/2023): Need not be 100%. In a €350,000 fraud, consignation of €180,000 (51%) by a defendant who sold all assets suffices, showing genuine reparation effort.
Timing: Before the first session of the trial hearing. Consignation the same day but before the hearing starts is valid.
Highly qualified (STS 123/2024): Full reparation (100%) within 30 days of arrest, before charges formulated. Effect: sentence reduced by 1-2 degrees.
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