In this post we are going to reveal what the aggravating circumstance of malice aforethought consists of, it is one of the aggravating circumstances described in the Spanish Criminal Code.
Firstly, we would like to point out that when an aggravating circumstance is found in the commission of a crime, the penalty to be imposed will be higher.
What is aggravating circumstances as an aggravating circumstance in a crime?
In criminal law, aggravating circumstance is when, in order to ensure the execution of the crime, the perpetrator takes advantage of circumstances or uses means to eliminate any possibility of defence on the part of the victim.
The Penal Code defines aggravation of aggravation
Article 22 of the Penal Code includes all the aggravating circumstances and the first of them is the one dedicated to aggravating circumstances, establishing the following:
Aggravating circumstances are:
1st Executing the act with malice aforethought.
There is aggravating circumstance when the guilty party commits any of the crimes against persons using means, modes or forms in the execution which tend directly or especially to ensure it, without the risk to his person which could arise from the offended party defending himself.
Conditions for premeditation
- A normative element is necessary, consisting of the fact that it is a crime against persons.
- That the intention is projected on the use of the means, ways or forms used to prevent the defence of the offended party, thus consciously eliminating the possible risk to his person that a possible defensive reaction of the offended party could pose.
- The perpetrator uses, precisely in the execution, means, ways or forms that guarantee the elimination of the possibilities of defence of the victim of the offence.
When does one act with malice aforethought?
The doctrine of the Supreme Court distinguishes three ways in which it is possible to act with malice aforethought:
1. 1. Prodigious: characterised by a trap, ambush, ambush, lurking or betting.
2. Sudden: when the agent unleashes the attack improvising, that is, when the offended party is totally surprised, and there is nothing in his behaviour that allows him to foresee that he is going to be attacked in a way that prevents any defensive attempt.
3. The singularity of the offender taking advantage of a special situation of helplessness: this occurs when the offended party is a young child, an elderly person, sleeping or in a state of inebriation.
What is premeditation and malice aforethought?
Premeditation is not currently provided for in the Penal Code as an aggravating circumstance, as it has disappeared.
When premeditation was qualified as an aggravating circumstance, it was understood to occur when the offender's conduct met a series of requirements that are described below:
- Firm and reflexive resolution to commit a crime.
- Persistence of the agreed desire to commit the crime for a certain period of time.
- Coldness in the act, which ruled out the fact that the acts were committed with premeditation when it was a crime of passion.
As we have already mentioned, the aggravating circumstance is still included in the Criminal Code and occurs when the perpetrator ensures the execution of the crime and prevents the victim from defending himself.
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