Article 457 Spanish Criminal Code: Simulating an Offence and False Reporting

Article 457 of the Spanish Criminal Code punishes with a fine of six to twelve months the person who, before a judicial officer, a member of the prosecution service or a police officer, pretends to be responsible for or the victim of a criminal offence, or reports a non-existent offence, thereby causing procedural steps to be taken. It is the article applied to false reports of theft made to support an insurance claim, to fabricated reports of assault in the course of family disputes, and to a person who falsely assumes responsibility in order to protect another.

Wording of Article 457 of the Spanish Criminal Code

Elements of the offence

1. A statement made before a judicial officer, a member of the prosecution service or a police officer. A false statement to an insurer alone is not this offence.
2. That the person pretended to be responsible for or the victim of an offence, or reported a non-existent offence.
3. That procedural steps were actually taken as a result, which is a requirement of result and not merely of conduct.
4. Intent, comprising knowledge that the offence reported did not occur. A mistaken report made in good faith is not punishable.

Defence strategy

The offence reported was not non-existent. The article requires that the offence reported did not happen. A report that was exaggerated in detail, that misdescribed the circumstances or that concerned conduct later held not to be criminal is not a report of a non-existent offence. Where property was in fact missing, or an incident did occur, the defence establishes the factual core of the report even where parts of it were inaccurate.

Absence of procedural steps. The offence requires that procedural steps were caused. Where the report was withdrawn before any step was taken, where it was recorded and filed without action, or where the steps taken were purely administrative, the element is missing. The docket establishes what was actually done and when, and this is frequently decisive in cases where the complainant retracted quickly.

Mistake and the state of the person reporting. A report made in the honest belief that an offence had occurred, whether because property was mislaid, because of confusion after an accident, or because of intoxication or distress at the time, lacks the mental element. The defence produces the circumstances in which the report was made, and where the report was made hours after a traumatic event its reliability as evidence of deliberate falsity is limited.

Retraction and reparation. Prompt retraction, before the proceedings advanced or an innocent person was affected, is a powerful mitigating factor and frequently produces a discontinuance given that the penalty is a fine in any event. Where an insurance claim was involved, the return of the sums received before trial is essential, because it removes the concurrent fraud, which is the charge that carries the real exposure.

• Article 456: false accusation
• Article 249: computer and payment fraud
• 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.