Article 205 Spanish Criminal Code: Calumny

Article 205 of the Spanish Criminal Code defines calumny in a single sentence: the imputation of an offence made with knowledge of its falsity or with reckless disregard for the truth. The definition is narrower than clients expect. Only the attribution of a criminal offence is calumny, and only where the mental element is present, so a false allegation made in the honest belief that it is true is not this offence. The penalties are in article 206, and article 207 provides a complete defence where the fact imputed is proved.

Wording of Article 205 of the Spanish Criminal Code

Elements of the offence

1. The imputation of a specific criminal offence to a determinate person. A general accusation of dishonesty, or the attribution of conduct that is not an offence, is at most insult under article 208.
2. Falsity of the imputation.
3. Knowledge of that falsity, or reckless disregard for the truth, which requires the absence of any reasonable enquiry before making the allegation.
4. Communication of the imputation to a third party, since the offence protects reputation in the eyes of others.

Defence strategy

Proof of the fact imputed. Article 207 exempts the accused from any penalty by proving the criminal act imputed. The defence therefore examines whether the conduct alleged can be established, and where a complaint was made to the authorities and led to any investigative step, that material is obtained. This defence is complete and it does not require the earlier proceedings to have ended in a conviction.

The subjective element. A false allegation is not calumny unless made with knowledge of falsity or reckless disregard for the truth. Where the accused relayed what a third party told him, acted on documents that appeared genuine, or reported a suspicion to the authorities as the law encourages, the element is absent. Evidence of the enquiries made before the allegation, however modest, is what defeats the charge of recklessness.

Reclassification as insult. Only the imputation of an offence is calumny. Accusations of incompetence, of dishonesty in general terms, of infidelity or of conduct that is merely improper fall within article 208 and carry a materially lower penalty, and where the imputation consists of facts they are not even serious insult unless made with knowledge of falsity. The distinction is drawn by identifying the precise words used and the offence they are said to attribute.

The complaint requirement and the civil alternative. Under article 215 these offences cannot be prosecuted without a complaint by the person offended, save where the offence is directed at a public official in the exercise of his functions. That requirement, and the short one-year limitation period of article 131, dispose of many cases. Where the criminal route is unavailable, the alternative is a civil claim for interference with honour, which requires no proof of knowledge of falsity and which the defence should expect the complainant to pursue.

• Article 208: insult
• Article 456: false accusation
• Spanish Criminal Code by article
• 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.