Summoned as a suspect in Spain: what it means and what to do

Receiving a court summons (citación) as a person under investigation (investigado) is unsettling, and understandably so. It is worth being clear from the outset: being under investigation is not the same as being convicted, nor does it mean that charges have already been brought for trial. It means that criminal proceedings have been opened to look into your possible involvement in an alleged offence. From that moment, the law and the Constitution grant you a set of rights and safeguards so that you can defend yourself.

What does it mean to be under investigation?

A person is under investigation when involvement in an act that may amount to an offence is attributed to them, whether the grounds are strong or slight. This status does not depend on a formal decision. It arises as soon as there is an apparently criminal act and a specific person to whom it is attributed. That is why the law requires that the admission of a complaint or a private prosecution, or any step that amounts to attributing an offence to someone, be notified to that person immediately (article 118.5 of the Criminal Procedure Act, Ley de Enjuiciamiento Criminal, LECrim).

The term replaced the older word for an accused person (imputado), which the legislature dropped because of the negative overtones it carried.

The LECrim provides that a person to whom a punishable act is attributed is, in principle, summoned to be heard (article 486 LECrim). That hearing allows you to learn what is alleged and to exercise your defence, but it does not oblige you to give an account: you may rely on your right to remain silent.

The document will state the court, the case number — usually the preliminary investigation (diligencias previas) — and the date and time of the hearing. Following the recent reform of the court system, it may not refer to an investigating court (juzgado de instrucción) but to the investigation division of the court of first instance (sección de instrucción del tribunal de instancia). In practice, they are the same thing.

Does being under investigation mean I will be convicted?

No. Criminal proceedings start from the presumption of innocence, recognised in article 24.2 of the Spanish Constitution (CE). It is for the prosecution to prove the facts, not for you to prove that you did not commit them.

The investigation stage exists to look into the facts and decide whether there is enough to hold a trial. As a rule, the steps taken during it are not evidence. The evidence capable of supporting a conviction is that taken at trial, in public and subject to challenge. Many investigations end with the case being closed before that stage, through a dismissal of the case. Being under investigation also leaves no criminal record: a record arises only from a final conviction.

What is the difference between giving evidence as a suspect and as a witness?

The difference is substantial. A witness must attend and must tell the truth. A person under investigation, by contrast, may remain silent, decline to answer particular questions and refuse to give evidence against themselves.

For that reason, someone suspected of involvement in the facts should not be questioned as a witness. If, during witness questioning, indications appear against the person giving evidence, the questioning should be stopped and continued with the safeguards that apply to a person under investigation, including the assistance of a lawyer.

What rights does the person under investigation have?

Article 24.2 CE grants everyone, among other rights, the right to a defence and to the assistance of a lawyer, not to give evidence against themselves, not to confess guilt, and to the presumption of innocence.

The LECrim develops these safeguards. Article 118.1 provides that every person to whom a punishable act is attributed must be informed, without undue delay, of the following rights:

• a) The right to be informed of the acts attributed to them, as well as of any relevant change in the subject matter of the investigation, in sufficient detail to allow an effective defence.
• b) The right to examine the case file in good time to safeguard the defence and, in any event, before being questioned.
• c) The right to take part in the proceedings in order to exercise the right of defence as provided by law.
• d) The right to freely appoint a lawyer, without prejudice to article 527.1(a).
• e) The right to apply for free legal aid, and information on how to do so and the conditions for obtaining it.
• f) The right to free translation and interpretation under articles 123 and 127.
• g) The right to remain silent, not to give a statement if they do not wish to, and not to answer any or all of the questions put to them.
• h) The right not to give evidence against themselves and not to confess guilt.

Communications with the lawyer are strictly confidential (article 118.4 LECrim). You may also speak with your lawyer in private both before and after giving a statement.

What happens at the first hearing before the judge?

In the most common procedure, the abbreviated procedure, the law sets out this first hearing in detail (article 775 LECrim). Before the statement, the court clerk (letrado de la Administración de Justicia) informs you of your rights. You will also be required to give an address in Spain for service of documents, or a person to receive them on your behalf.

This matters more than it appears. Summonses served at that address are treated as valid and, in certain cases, allow the trial to be held in your absence. The judge will then inform you of the acts attributed to you.

This is an essential step. Before ordering that the abbreviated procedure continue towards the charging stage, the judge must have given the person under investigation the opportunity to appear with the safeguards of article 775 LECrim (article 779.1.4 LECrim). If you do appear, you may still exercise your right not to answer.

What happens if I do not attend?

The consequences depend on the capacity in which you are summoned.

• As a person under investigation, if you neither attend nor show a legitimate reason preventing you from doing so, the order to attend may be turned into an arrest warrant (article 487 LECrim).
• As a witness, failing to attend a first summons without being prevented from doing so may be punished with a fine of €200 to €5,000. If you persist, the court may order the police to bring you before the judge (article 420 LECrim). Criminal liability does not follow automatically from missing a summons: it depends on whether the elements of the relevant offence are made out (article 463 of the Criminal Code, CP).

If you have a good reason not to attend, such as illness or a trip you cannot postpone, you must tell the court in advance and provide documentary proof.

Attending is compulsory. Giving a statement, for the person under investigation, is not.

Do I need a lawyer to give a statement?

Yes. A statement given before the judge by the person under investigation is taken with a lawyer present. You may appoint a lawyer of your choice. If you do not, a duty lawyer will be assigned to you.

It is advisable to contact a lawyer before the date of the hearing, rather than on the day at the courthouse. That leaves time to examine the file, know precisely what is alleged and prepare the hearing calmly.

The first statement becomes part of the case file. Even if you later choose to remain silent, what you have already said does not disappear from the proceedings. That does not mean the first statement is your only chance to defend yourself. During the investigation you may give evidence as often as you wish, and the judge must hear you whenever the statement relates to the case (article 400 LECrim). This is useful, for instance, to clarify or complete your account in the light of new developments.

What happens after the statement?

The investigation continues with whatever steps the court considers necessary. When it ends, broadly speaking, there are two outcomes:

• The closing or dismissal of the case, if there is not enough evidence.
• The continuation of the proceedings towards a possible trial.

Timescales vary widely depending on how complex the matter is. If the facts fall within the offences tried under the fast-track procedure, the case may be resolved within days: see our article on the fast-track trial.

What to do when you receive a summons

• Read the summons carefully and note the date, the time, the court and the case number.
• Keep the summons and any document connected with the facts.
• Do not discuss the matter with the other party or post anything about it on social media.
• Contact a criminal defence lawyer as soon as possible.
• Take advice before deciding whether to give a statement. The decision is yours, but it is better taken knowing what is in the case file and what the consequences may be.