Article 456 Spanish Criminal Code: False Accusation and Reporting an Offence Falsely

Article 456 of the Spanish Criminal Code punishes the person who, knowing an allegation to be false or with reckless disregard for the truth, attributes to another conduct which, if true, would constitute a criminal offence, where the allegation is made to a judicial or administrative official under a duty to investigate it. The article matters to anyone who has been the subject of a complaint that was dismissed, because the second paragraph makes clear that the false accuser can be pursued only after the original case has ended, and that the court may order that pursuit of its own motion.

Wording of Article 456 of the Spanish Criminal Code

Elements of the offence

1. An allegation of conduct that would constitute a criminal offence, attributed to a specific and identified person.
2. Falsity of the allegation, together with either knowledge of that falsity or reckless disregard for the truth. An allegation that turns out to be unfounded is not enough: the mental element must be proved.
3. That the allegation was made before a judicial or administrative official under a duty to investigate. A false statement made to a third party is a matter for the law of defamation.
4. A final decision closing the original proceedings, which is a procedural condition for any prosecution under this article.

Defence strategy

A dismissal is not proof of falsity. The most frequent error in these prosecutions is to treat the discontinuance of the original case as establishing that the allegation was false. Spanish law requires the opposite reasoning: the falsity must be proved independently, and an allegation may be dismissed for want of evidence while remaining sincerely made. The defence obtains the reasoning of the closing decision and establishes what the complainant actually perceived and believed at the time.

The subjective element. The article requires knowledge of falsity or reckless disregard for the truth. A complainant who reported what he genuinely believed, who was mistaken as to the identity of the person involved, or who relayed what a third party told him lacks that element. Evidence of the circumstances in which the report was made, including the state of the complainant at the time and the presence of injuries or damage that appeared to require explanation, is central.

The procedural condition and limitation. No prosecution may begin before the original case is finally closed, and the limitation period is computed accordingly. Where proceedings have been opened prematurely, or where they rest on an order that is not yet final, the defence raises the bar at the outset. Conversely, where the firm acts for the person falsely accused, the correct step is to apply to the court that closed the original case to order the prosecution of its own motion, which avoids the cost of a private prosecution.

Compensation and the parallel civil route. Where the accusation caused quantifiable harm, the compensation determined in these proceedings covers the defence costs of the original case and the damage to reputation. Where the mental element cannot be proved, the alternative is a civil claim for interference with honour, which requires no proof of knowledge of falsity, and the decision between the two routes is taken at the outset on the basis of the available evidence.

• Spanish Criminal Code by article
• Article 118 LECrim: rights of the accused
• Article 468: breach of a restraining order
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.