Article 174 Spanish Criminal Code: Torture by public officials

Article 174 defines torture as conduct by a public authority or official who, abusing the office, subjects a person to suffering in order to obtain a confession or information, to punish a real or suspected act, or for a discriminatory reason. The penalty frame depends on whether the violation of moral integrity is serious.

Wording of Article 174 of the Spanish Criminal Code

Elements of the offence

1. The status of public authority or official, and abuse of the office in the commission of the act.
2. A teleological element, namely the purpose of obtaining a confession or information, of punishing a real or suspected act, or a motive based on discrimination.
3. Conduct causing physical or mental suffering, the suppression or reduction of the faculties of knowledge, discernment or decision, or any other violation of moral integrity.
4. The seriousness of the violation, which determines whether the higher or the lower penalty frame applies.

Defence strategy

Absence of the teleological element. Conduct lacking the purposes listed in the article falls at most under Article 175 or under the ordinary offences against physical integrity. The distinction is not one of degree but of the aim pursued by the official, and it must be proved rather than presumed.

Proportionality of the use of force. Force applied in the course of a lawful arrest or of the containment of an incident is assessed against the criteria of necessity and proportionality. Medical reports, custody recordings and the incident report are the material on which the lawfulness of the intervention is established.

Seriousness of the violation of moral integrity. The article expressly distinguishes serious from non serious violations, with a substantially different penalty frame. Duration, intensity, the conditions of custody and the effect on the person concerned are the factors on which the lower frame is argued.

Evidential value of the forensic examination. The forensic examination on entry into and on release from custody is habitually the decisive evidence. Discrepancies in the timing of the findings, alternative causes of the injuries and the absence of any contemporaneous complaint are legitimate lines of challenge.

• Article 173 CP: degrading treatment
• Offences against moral integrity
• Rights on arrest and in police custody
• Detention time limits and habeas corpus

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.