False accusation lawyer in Alicante

What a false report is

A false report is not just any complaint that ends up being dismissed. The Criminal Code punishes anyone who, knowing it to be false or with reckless disregard for the truth, attributes to another person acts which, if true, would constitute a criminal offence, provided they do so before a judicial or administrative official with a duty to investigate them: a judge, a public prosecutor or the police (Article 456.1).

Three elements are therefore required:

• An allegation of specific acts against a particular person.
• Those acts must be false, and the person reporting them must have known this or acted with reckless disregard for the truth.
• The allegation must be made before an authority obliged to investigate.

What is not a false report: reporting in good faith acts that later cannot be proved, mistakenly identifying someone without intending to harm them, or describing events inaccurately. Reporting a crime is a right, and the law does not punish mistakes but allegations made knowing they are lies or with complete indifference as to whether they are true.

There are related offences that should be distinguished:

• Simulating an offence (simulación de delito): reporting a crime that never happened, or pretending to be its victim or perpetrator, thereby triggering court proceedings. It is punishable by a fine of six to twelve months (Article 457).
• Perjury (falso testimonio): a witness who lies in court proceedings (Article 458).
• Slander (calumnia): accusing someone of a crime knowing the accusation to be false, but outside any proceedings, for example on social media or to third parties (Article 205). We deal with this on our page on defamation: insult and slander.

Penalties for a false report and related offences

The penalty for a false report depends on the seriousness of the offence that was falsely alleged (Article 456.1 of the Criminal Code):

Perjury is punishable by six months to two years’ imprisonment and a fine of three to six months. If it is committed against the accused in criminal proceedings, the penalty rises to one to three years’ imprisonment and a fine of six to twelve months, and if a conviction resulted from that testimony, the penalties one degree higher are imposed (Article 458).

Slander is punishable by six months to two years’ imprisonment or a fine of twelve to twenty-four months if it is spread publicly and, otherwise, by a fine of six to twelve months (Article 206). It can only be prosecuted by private criminal action brought by the person harmed (Article 215) and becomes time-barred after one year (Article 131).

In addition to the penalty, the offender must pay compensation for the damage and loss caused, including non-pecuniary damage (Articles 110 and 116 of the Criminal Code).

When action can be taken against the person who reported you

This is the point that raises the most questions. The law provides that no action may be taken against the person who made the report until there is a final judgment or a final order dismissing or closing the case in which the allegation was made (Article 456.2).

Once that case has ended, there are two routes:

• The judge or court that heard the case must order proceedings to be brought ex officio against the person who made the report if the case reveals sufficient evidence that the report was false.
• The person harmed can file a complaint or a private criminal action (querella).

It is important to understand that a dismissal or an acquittal does not in itself prove that the report was false. It may be because there was insufficient evidence. For a conviction for making a false report, it must be shown that the person making it knew that what they said was untrue or acted with reckless disregard for the truth. That is why we study the whole case file before recommending a private criminal action.

If you are being falsely accused now

If you have just received a summons or been arrested for something you have not done, the priority is not the private criminal action: it is defending yourself properly in the open case. A sound defence at that stage is also the foundation for any later action.

1. We go with you to make your statement, as explained on our page on being summoned as a suspect or, if you have been arrested, on assistance if you are arrested.
2. We gather the evidence that contradicts the complaint: complete messages, call logs, locations, receipts, cameras and witnesses.
3. We analyse the contradictions in the complainant’s account and the possible motives behind the accusation.
4. We request the necessary investigative steps and, where appropriate, the dismissal of the case.
5. We remind the court that the burden of proof lies with the prosecution: the presumption of innocence applies.

In the meantime: don’t contact the complainant, don’t delete anything from your phone and don’t post anything about the case.

Gender-based violence proceedings have their own rules and courts; we deal with them on our specialist website abogadaviolenciadegenero.com.

Criminal action for a false report: how we approach it

When the case has ended in a final dismissal or a final acquittal, we review whether there are grounds to take action:

• We study the case file: what the complainant said, what evidence contradicts it and what the judge took into account when dismissing the case or acquitting.
• We check whether the court itself ordered that the matter be referred for proceedings against the complainant (deducir testimonio).
• If there is solid evidence, we file a private criminal action and join the proceedings as private prosecutor, also claiming compensation for the harm suffered: defence costs, employment losses or non-pecuniary damage.
• If there is not, we tell you so clearly, to spare you groundless proceedings.

It is not advisable to let time pass after the dismissal or acquittal: these offences are also subject to limitation periods. Every case is different; after reviewing yours we give you a personalised written quote.