Article 458 Spanish Criminal Code: False Testimony

Article 458 of the Spanish Criminal Code punishes the witness who departs from the truth in his testimony in judicial proceedings, with imprisonment of six months to two years and a fine. Where the false testimony is given against the accused in criminal proceedings the penalty rises to one to three years, and where a conviction followed as a consequence it rises by a further degree. The offence reaches testimony before international tribunals and testimony given in Spain under letters rogatory from a foreign court.

Wording of Article 458 of the Spanish Criminal Code

Elements of the offence

1. Testimony given as a witness in judicial proceedings, under oath or promise, which excludes statements made to the police and statements by the accused, who does not commit this offence.
2. A departure from the truth on a substantial matter. Inaccuracy on an immaterial point, or a failure of recollection, is not false testimony.
3. Intent: awareness that what is stated is untrue. Error, confusion and the ordinary unreliability of memory are outside the article.
4. For the aggravated form, that the testimony was given against the accused in criminal proceedings, and for the further increase, a causal link with the conviction.

Defence strategy

Inaccuracy is not falsity. Human recollection is imperfect and testimony given months after the events is inevitably inexact. The offence requires a conscious departure from the truth on a matter of substance. The defence compares the successive statements, identifies whether the discrepancy concerns a peripheral detail and establishes the conditions in which the witness observed the events, which is the ordinary explanation for divergence.

Retraction under article 462. A witness who retracts in time, in the manner and before the moment that article 462 provides, is exempt from penalty. This is the first avenue to examine when acting for a witness, because it operates as a complete exemption and it disappears once the decision has been given.

The statement was not testimony as a witness. The accused does not commit this offence, and a person who was in substance being investigated but was formally examined as a witness cannot be prosecuted for what he said. Where the file shows that the objective suspicion already pointed to him, the defence submits that he ought to have been informed of his rights under article 118 of the Criminal Procedure Act, which excludes the offence.

Materiality and the outcome of the proceedings. The aggravations depend on the testimony being against the accused and, for the further increase, on a conviction having followed as a consequence. Where the judgment did not rely on that testimony, or the accused was acquitted, the increases do not apply. The defence analyses the reasoning of the judgment to establish what actually founded it.

• Article 456: false accusation
• Article 464: intimidation of witnesses
• Witness statements and dispensation
• 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.