The presumption of innocence is the right of every accused person to be treated as innocent until a final judgment, based on valid evidence, proves otherwise. It is not an abstract idea: it determines who has to prove the case, what evidence counts and what the court must do when it is in doubt.
If a complaint has been filed against you, you have been summoned as a suspect (investigado) or your name has appeared in the news, this right is your starting point. We explain what it means and how it works in practice.
What the presumption of innocence is
It is recognised as a fundamental right in Article 24.2 of the Spanish Constitution, as well as in Article 6.2 of the European Convention on Human Rights and Article 48 of the Charter of Fundamental Rights of the European Union. Directive (EU) 2016/343 strengthens certain aspects of it throughout the Union.
In practice it means four things:
- The burden of proof lies with the accuser. You do not have to prove your innocence; the public prosecutor or the prosecuting party must prove your guilt.
- Only lawfully obtained evidence counts. Evidence obtained in breach of fundamental rights has no effect (Art. 11.1 of the Organic Act on the Judiciary, Ley Orgánica del Poder Judicial).
- As a general rule, evidence must be examined at trial, in public, with both sides able to challenge it and directly before the court, so that your defence can rebut it.
- If there is reasonable doubt, the accused is acquitted. This is the principle of in dubio pro reo.
You also have the right not to incriminate yourself and not to plead guilty. Your silence cannot, on its own, be used as evidence of guilt.
How it applies at each stage of the proceedings
On arrest and at the police station
The police must inform you of your rights, including the right to remain silent, and treat you with dignity. The police report (atestado) must set out facts, not judgments of guilt. If you are arrested, read our guide on what to do if you are arrested.
During the pre-trial investigation
When you receive a summons as a suspect, the Investigating Section of the Court of First Instance (Sección de Instrucción del Tribunal de Instancia, formerly the juzgado de instrucción) investigates whether there is sufficient indication to send you to trial. Indications are not proof: the case can be dismissed if there is no basis for it. This is where preparing your statement properly is key; we can help if you have received a summons as a suspect.
Measures such as pre-trial detention (prisión provisional) are only compatible with the presumption of innocence if they are exceptional, reasoned and pursue specific aims (preventing flight, protecting evidence or the victim), never as advance punishment.
At trial
This is the central moment. The prosecution must present evidence proving the facts and your involvement beyond all reasonable doubt. Your defence can cross-examine witnesses, submit evidence and challenge the validity of the evidence against you.
The testimony of a single person can amount to incriminating evidence, but case law requires it to be assessed with caution: credibility, consistency, persistence and, where possible, corroboration by other evidence. Here the work of the defence is decisive.
In the judgment and on appeal
The judgment must explain which evidence supports the conviction and why. A conviction without sufficient evidence or based on unlawful evidence can be appealed (recurso de apelación) and, where applicable, taken to cassation (recurso de casación). If a fundamental right has been violated, an amparo appeal can be lodged with the Constitutional Court and, after that, the case can be taken to the European Court of Human Rights. Find out more about criminal appeals.
When the presumption of innocence is violated
- Conviction without sufficient incriminating evidence or based on mere suspicion.
- Use of unlawfully obtained evidence: searches without authorisation, interception of communications without judicial oversight, confessions made without a lawyer…
- Reversal of the burden of proof: requiring you to prove that you did not do something.
- Statements by public authorities presenting the suspect as guilty before trial.
The media, social media and trial by media
The presumption of innocence is binding above all on judges, prosecutors and public authorities. The media and social networks cannot convict anyone, but they can cause enormous reputational harm. If falsehoods are spread accusing you of a crime or damaging your reputation, there are legal remedies, civil or criminal, to defend yourself. We explain them on our page on defamation, libel and slander.
Our general advice is not to make public statements about the case without first discussing it with your lawyer: anything you post may end up in the proceedings.
What to do if you are accused of a crime
- Get a lawyer from the outset, before making any statement.
- Exercise your right not to make a statement until you know the accusation and have spoken to your defence lawyer.
- Keep everything that might help you: messages, emails, receipts, location data, names of witnesses.
- Do not contact the complainant or any witnesses; it may be used against you.
- If the accusation is false, do not act on your own: you must defend yourself first and only then consider taking action. We can advise you on false accusations.
Frequently asked questions
Does being a suspect mean I am guilty?
No. Being a suspect only means that an investigation is open in which you are alleged to have taken part. Many cases end up dismissed or in an acquittal.
Can my silence be used against me?
Not on its own. Remaining silent is a right. It is a different matter if there is strong evidence against you and the court takes into account that you have offered no explanation; that is why the strategy on whether or not to make a statement is decided with your lawyer.
Does pre-trial detention breach the presumption of innocence?
No, provided it is ordered exceptionally and with proper reasons. It is not a sentence, and any time you spend in it is deducted from your sentence if you are ultimately convicted.
If a complaint has been filed against you or you have been summoned in criminal proceedings in Alicante, call us on 607 449 491. We will study your case in confidence and explain your options clearly.
