Crimes Against Life: Defense Lawyers in Marbella

The three modalities of alevosía

Case law repeatedly distinguishes three executional modalities of an alevosa nature, each with its own evidentiary requirements:

"...a) alevosía proditoria, equivalente a la traición... b) alevosía súbita o inopinada, llamada también 'sorpresiva'... c) alevosía de desvalimiento, que consiste en el aprovechamiento de una especial situación de desamparo de la víctima."

(This ruling distinguishes: a) treacherous ambush, equivalent to betrayal; b) sudden or unexpected attack, also called "surprise" alevosía; and c) alevosía based on the victim's defenselessness, consisting of taking advantage of the victim's special state of helplessness.) Proditory alevosía requires proof of an ambush, snare or trap previously arranged by the perpetrator. Sudden or unexpected alevosía — the modality with the greatest practical application — focuses on the unforeseen, sudden and abrupt nature of the attack, even when the perpetrator was within the victim's sight, provided the victim was not expecting the aggression and could not prepare against it. And alevosía based on defenselessness requires the conscious exploitation of a situation of absolute helplessness — young children, people who are asleep, unconscious or severely incapacitated — without it being necessary for the perpetrator to have deliberately sought out that situation, it being sufficient that the perpetrator takes advantage of it at the moment of acting. More recent case law also recognizes a "cohabitation" modality, found where a surprise attack is carried out against someone in the calm and safety of their own home, in the company of a person with whom they maintain a relationship of trust. Determining precisely which of these modalities applies — and whether all of its objective and subjective elements are actually present — is the central focus of our defense whenever this aggravating circumstance is alleged.

Ensañamiento: two cumulative and independent elements distinct from alevosía

Ensañamiento under article 139.1.3ª of the Criminal Code requires the cumulative presence of two elements, which case law requires to be proven independently:

"...un elemento objetivo constituido por la causación de males objetivamente innecesarios para alcanzar el resultado típico... y otro subjetivo, que el autor debe ejecutar, de modo consciente y deliberado, unos actos... dirigidos... al aumento del sufrimiento de la víctima."

(This ruling requires: an objective element consisting of causing harm that is objectively unnecessary to achieve the criminal result, and a subjective element, whereby the perpetrator must consciously and deliberately carry out acts aimed at increasing the victim's suffering.) The objective element requires that the acts causing additional pain be clearly superfluous in relation to causing death, and that the victim was conscious enough to perceive them: if death occurred with the first blows or wounds, the subsequent acts — however numerous — cannot support a finding of ensañamiento, since they generated no additional suffering. The subjective element requires a genuine, deliberate intent to cause that extra suffering, which case law has defined as a "reflective cruelty" incompatible with the mere intent to kill already fulfilled in the decision to cause death. The correct distinction between the number of wounds necessary to ensure the act was carried out and those that were truly superfluous and aimed at prolonging suffering is, therefore, a matter of an essentially forensic expert nature, which we subject to adversarial challenge in every proceeding of this kind.

The regime governing prisión permanente revisable: requirements for its suspension

Article 140 of the Criminal Code reserves prisión permanente revisable for the most serious cases of murder: a victim under sixteen years of age or especially vulnerable due to age, illness or disability; murder following a crime against sexual freedom; commission by a member of a criminal organization or group; and repeated or serial murders. Article 92 of the Criminal Code sets out the requirements for suspending its enforcement: that the convicted person has generally served twenty-five years of effective sentence — a term that rises to thirty-five years in the most serious cases under article 78 bis of the Criminal Code —; that the person has been classified under the third penitentiary grade, which in turn requires a minimum of fifteen years of effective time served; and that the court can base, in light of the convicted person's personality, background, the circumstances of the offense and prison-progress reports, an individualized and favorable prognosis of social reintegration. The Constitutional Court has declared this regulation to be in conformity with the Constitution, precisely because it provides for this mechanism of periodic review, which guarantees the convicted person a prospect of freedom — although the first effective review of a sentence imposed under this regime will not take place in Spain until after the year 2040.