Summoned as a witness in a criminal case in Spain: what to know

Receiving a summons (citación) as a witness raises a great many questions, especially for someone who has never been to court. A witness is not a party to the proceedings and is not accused of anything: they are called to explain what they know about certain facts. Even so, giving evidence carries legal obligations worth knowing about.

Do I have to attend?

Yes. Everyone resident in Spain, Spanish or foreign, who is not prevented from doing so, is under a duty to answer a judicial summons and give evidence on what they know about the matters they are asked about, provided they have been summoned in the manner laid down by law (article 410 of the Criminal Procedure Act, Ley de Enjuiciamiento Criminal, LECrim).

Do I have to tell the truth?

Yes. Witnesses over the age of criminal responsibility swear or affirm that they will say everything they know about what they are asked, and the judge must inform them of their duty to be truthful and of the risk of committing the offence of false testimony (falso testimonio) (article 433 LECrim).

False testimony in judicial proceedings is punishable by six months to two years' imprisonment and a fine of three to six months. Where it is given against the defendant in criminal proceedings for an offence, the penalty is one to three years' imprisonment and a fine of six to twelve months (article 458 of the Criminal Code, Código Penal, CP).

Who can refuse to give evidence?

The following are exempt from the duty to give evidence (article 416 LECrim):

• Relatives of the person under investigation or accused in the direct ascending and descending line, their spouse or the person joined to them by a de facto relationship equivalent to marriage, and their siblings.
• Their lawyer, as regards facts entrusted to them as defence counsel.

The judge must warn those relatives that they are under no duty to give evidence against the person under investigation, although they may make any statement they see fit. The exemption (dispensa) is subject to exceptions expressly set out in article 416 LECrim, among them certain situations connected with joining the case as a private prosecutor (acusación particular) or with having given evidence earlier after receiving the statutory information. Which of them applies must be checked before concluding that the relative is obliged to give evidence.

Being exempt from the duty to give evidence does not mean a court summons can be ignored: if you have been summoned, it is advisable to attend and tell the court that you wish to rely on the exemption.

What happens if I do not attend?

During the investigation, anyone who fails to attend a first summons without being prevented from doing so, or who refuses to give evidence without being exempt, may be fined €200 to €5,000. If they persist, the court may order the police to bring them before the judge (article 420 LECrim). Criminal liability also requires that the elements of the relevant offence be made out.

At the trial stage, failing to attend deliberately and without good cause may amount to an offence where it causes the trial to be adjourned in a case in which the accused is in pre-trial detention, or where it happens again after a warning (article 463.1 CP).

If something prevents attendance, such as illness, it should be notified to the court as soon as possible and backed up with documents.

Are my expenses paid?

Witnesses who attend to give evidence before the court are entitled to compensation if they claim it. It is set taking into account only travel expenses and earnings lost by attending (article 722 LECrim).

What to do

• Attend with the summons and an identity document, in good time.
• Say only what you know, without speculating. If you do not remember something, it is better to say so.
• If you are related to the person under investigation, ask about the exemption before giving evidence.
• If you are concerned that your evidence may affect you personally, it is advisable to take legal advice before attending.