Can I refuse to give a statement as a suspect? The right to silence

You can refuse to give a statement as a suspect, and sometimes it is the most sensible decision. But staying silent is not a magic formula: it has advantages, risks and right moments. We explain what the law says, how the courts treat it and how to decide with your lawyer.

What the law says about the right to remain silent

The right not to give a statement has constitutional status. Article 24.2 of the Constitution recognises everyone’s right “not to testify against themselves, not to plead guilty and to the presumption of innocence”. Article 17.3 adds that a person under arrest cannot be forced to give a statement.

The Criminal Procedure Act sets this out in two articles:

• Article 118.1 g) and h): anyone to whom an offence is attributed has the right to remain silent, not to give a statement, not to answer one or more questions and not to testify against themselves or plead guilty.
• Article 520.2 a) and b): a detainee has the same rights and can also state that they will only give a statement before the judge.

You must be told of these rights before any statement, at the police station or in court. If that did not happen, anything you said may be without legal effect.

The ways of exercising the right not to give a statement

It is not all or nothing. You have several options:

Answering only your own lawyer is a common practice and is protected by article 118.1 g), which allows you not to answer “one or more” questions. It lets you explain the essentials in an orderly way, although your version is not tested against the prosecution’s questions, and the court will take that into account when assessing it.

Do you have to explain why you are not giving a statement?

No. It is enough to say that you are exercising your right not to give a statement. The judge will warn you that, even if you remain silent, the investigation will continue (article 392). And if you change your mind, you can give a statement later: article 400 allows a suspect to give a statement as many times as they wish, provided it relates to the case.

Can silence count against you?

This is the key question, and the answer is nuanced.

The Murray case doctrine

In the judgment John Murray v. the United Kingdom of 8 February 1996, the European Court of Human Rights (ECtHR) established two principles that still apply:

• It is incompatible with the right to remain silent to base a conviction solely or mainly on the accused’s silence.
• But that right does not prevent silence being taken into account, in situations that clearly call for an explanation, when assessing the strength of the prosecution evidence.

In that case, the ECtHR found no violation in the inferences drawn from silence, because there was other very strong evidence. It did find a violation of the right to a fair trial because the detainee was unable to have a lawyer during his first 48 hours at the police station.

How the Constitutional Court applies it

The Spanish Constitutional Court (Tribunal Constitucional) has adopted that doctrine. In STC 202/2000 of 24 July, it accepted that the judge may take silence into account where there is objective incriminating evidence, provided the inference is reasoned and is not simply the result of having stayed silent. STC 26/2010 of 27 April sums it up: silence “cannot make up for the absence of sufficient incriminating evidence”, but it can corroborate the accused’s guilt.

In practice:

• If the evidence against you is weak, your silence does not make it sufficient. You will be acquitted if there is no incriminating evidence, whether or not you spoke.
• If the evidence is overwhelming and only you can explain it, giving no explanation at all may strengthen the court’s conviction.

When it makes sense to give a statement and when not

It usually makes sense not to give a statement (for now) if…

• You have not been able to examine the case file or the case has been declared secret.
• You are under arrest, nervous or tired, or have not slept.
• You do not properly understand what you are accused of or the facts are complex (documents, accounts, dates).
• What you say could affect other people or open up other fronts.

It usually makes sense to give a statement if…

• You have a clear explanation and can back it up with documents or witnesses.
• The evidence calls for an explanation that only you can give, and your silence could count against you.
• Giving a statement could lead to the case being dismissed quickly or avoid an interim measure.
• You want to admit the facts in order to access a plea agreement with a reduced sentence, if the law allows it.

We explain this step by step in summoned as a suspect: what to do before giving a statement.

And if I lie as a suspect?

A suspect does not swear or promise to tell the truth, unlike a witness (article 433 of the Criminal Procedure Act). That is why lying about your own involvement is not the offence of perjury (falso testimonio): article 458 of the Criminal Code (Código Penal) punishes a “witness” who fails to tell the truth, not someone defending themselves.

That does not mean lying comes at no cost:

• You lose credibility. If your version is shown to be false, the implausibility of the alternative account can corroborate the incriminating evidence, as STC 26/2010 points out. A lie that is exposed is often worse than silence.
• Falsely accusing another person can be an offence. Article 456 of the Criminal Code punishes anyone who, knowing it to be false or with reckless disregard for the truth, attributes criminal acts to another person before a judge or official. The penalty ranges from a fine of three to six months (if a minor offence is alleged) to six months to two years in prison and a fine (if a serious offence is alleged).

If you are the one who has been named in an accusation you know to be false, you can defend yourself and, once the case has been dismissed or concluded, consider taking action: we look at this on our page for a false accusation lawyer in Alicante.

The right not to give a statement in practice in Alicante

If you are arrested in Alicante, you will usually have your rights read to you at the police station and be asked whether you wish to give a statement. You can say that you will only give a statement before the judge. You will then be brought before the Investigating Section (Sección de Instrucción) on duty; according to the Generalitat Valenciana’s directory, the Alicante Duty Court is at Avenida de Aguilera, 53. If you are arrested, go over what to do if you are arrested: your rights and the steps to follow.

If you have been summoned as a suspect without being arrested, you will give your statement before the Investigating Section of the Court of First Instance (Tribunal de Instancia) for the judicial district shown on your summons (Alicante, Elche, Benidorm, Torrevieja, Orihuela and the rest of the province).

At our firm, before any statement, we speak to you in private, review the police report or the case file and decide together whether it makes sense to give a statement, when, and whose questions to answer. Celeste Pérez Bleda has assisted more than 800 detainees in more than 20 years of criminal practice, and our team will assist you in English. If the proceedings concern gender violence (with your partner or former partner), we deal with them on our website specialising in gender violence. For urgent arrests, see our service as a 24-hour lawyer for people arrested.

Frequently asked questions

What do I have to say to refuse to give a statement?

One sentence is enough: “I am exercising my right not to give a statement” (“Me acojo a mi derecho a no declarar”). You do not have to explain or justify why. You can add that you will only give a statement before the judge, if you are at the police station, or that you will only answer your lawyer’s questions. The judge will warn you that the investigation will continue even if you remain silent, under article 392 of the Criminal Procedure Act.

Can I be convicted just because I did not give a statement?

No. Both the European Court of Human Rights, in John Murray v. the United Kingdom (1996), and the Constitutional Court, in STC 26/2010, reject basing a conviction solely on silence. There must be sufficient incriminating evidence. What they do accept is that, if that evidence is strong and calls for an explanation, the lack of an explanation may corroborate it.

If I do not give a statement at the police station, can I give one later before the judge?

Yes. Article 520.2 a) of the Criminal Procedure Act expressly recognises a detainee’s right to state that they will only give a statement before the judge. It is a common choice, because by the time you are in court you will have spoken to your lawyer and will have a better understanding of the facts. In addition, a suspect can give a statement as many times as they wish during the investigation, under article 400.

Is it better to answer only my lawyer’s questions?

It depends on the case. Answering only your defence lawyer lets you give your version in an orderly way without facing questioning by the prosecutor or the private prosecution, and it is protected by article 118.1 g). On the other hand, the court knows that your account has not been tested. It is best decided with your lawyer after reading the case file.

Is lying as a suspect an offence?

Lying about your own involvement is not the offence of perjury, because article 458 of the Criminal Code only punishes witnesses. But if a lie is exposed, it can weaken your defence. And falsely attributing an offence to another person before a judge or official, knowingly or with reckless disregard for the truth, can be the offence of false accusation under article 456 of the Criminal Code.

If you have been summoned as a suspect or arrested and do not know whether to give a statement, message us on WhatsApp before you decide. Our team will assist you in English. We advise you and accompany you through our service as a lawyer for suspects summoned to court in Alicante. We are available 24 hours a day on WhatsApp at 607 449 491.