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Article 109 Spanish Criminal Procedure Act: Information to the victim of the right to appear as a party
Article 109 obliges the court clerk to inform the offended or injured person, when the statement is taken, of the right to appear as a party and to waive or not to waive the restitution, reparation and indemnification, and it lays down the adaptations required where persons with a disability take part.
Also cited as: article 109 Spanish Criminal Procedure Act · art. 109 LECrim · LECrim article 109 · artículo 109 de la Ley de Enjuiciamiento Criminal.
Wording of Article 109 of the Spanish Criminal Procedure Act
When the offended or injured person gives a statement before the judge, the court clerk shall inform that person of the right to appear as a party in the proceedings and to waive or not to waive the restitution of the thing, the reparation of the harm and the indemnification of the loss caused by the punishable act. The clerk shall likewise inform that person of the rights set out in the legislation in force, and may delegate that function to staff specialised in the assistance of victims.
Where the person is a minor, the same step shall be taken with the legal representative of that person.
In proceedings in which persons with a disability take part, such adaptations and adjustments as are necessary shall be made. Those adaptations may relate to communication, comprehension and interaction with the environment. It must be guaranteed that:
a) All communications with persons with a disability, whether oral or written, are made in clear, simple and accessible language, in a manner which takes account of their personal characteristics and needs, making use of means such as easy reading. Where necessary, the communication shall also be made to the person who provides support to the person with a disability in the exercise of legal capacity.
b) The person with a disability is provided with the assistance or supports necessary in order to be able to be understood, which shall include interpretation in the legally recognised sign languages and the means of support for the oral communication of deaf persons, persons with a hearing disability and deafblind persons.
c) The participation is permitted of an expert professional who, acting as a facilitator, carries out the tasks of adaptation and adjustment necessary in order that the person with a disability may understand and be understood.
d) The person with a disability may be accompanied by a person of their choice from the first contact with the authorities and officials.
Outside the cases provided for in the two preceding subparagraphs, no notification shall be given to those interested in the civil or criminal actions which would prolong or halt the course of the case, which does not prevent the court clerk from endeavouring to inform the absent offended person of that right.
In any event, in proceedings conducted for offences covered by Article 57 of the Criminal Code, the court clerk shall ensure the communication to the victim of the procedural acts which may affect the safety of that person.
Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Royal Decree of 14 September 1882 approving the Spanish Criminal Procedure Act.
Effect. The provision imposes no penalty. Its omission affects the position of the offended person in the proceedings and, where the information as to the right to appear as a party was not given, it may found the reinstatement of the procedural time limits or, in the case of the safety communications, the reopening of the step which was omitted.
Requirements and procedure
- A statement taken from the offended or injured person before the judge, which is the moment at which the duty of information arises.
- Information as to the right to appear as a party and as to the waiver or non waiver of the restitution, of the reparation and of the indemnification.
- Information as to the rights set out in the Statute of the Victim, which may be delegated to specialised staff.
- Where persons with a disability take part, the adaptations of communication, the necessary supports, the possible facilitator and the accompaniment of a person of their choice.
Defence strategy
Scope of the waiver. The waiver of the civil claim is not to be presumed from the mere failure to appear. Where the record does not reflect an express and informed waiver, the civil liability remains open, which is relevant to the assessment of the reparation and to the mitigating circumstance of Article 21.5 of the Criminal Code.
Effect upon the time limits for appeal. The information as to the right to appear as a party conditions the calculation of the time limits available to the victim. A defective communication is the basis upon which an appeal lodged out of time is admitted, and equally the basis upon which its admission is contested.
Adaptations for persons with a disability. The adaptations of the third subparagraph are mandatory and not discretionary. Their omission in the taking of a statement affects the quality of the evidence obtained and may be raised as a defect in the taking of the statement rather than merely as an infringement of the rights of the victim.
Safety communications. In the offences covered by Article 57 of the Criminal Code, the communication to the victim of the procedural acts affecting safety is a specific duty. Its documentation in the file is relevant both to the protection of the victim and to the review of any precautionary measure adopted.
Defence in this area
If you or your company are facing proceedings in this area, the firm provides defence and prosecution in Alicante and Madrid, with 24-hour assistance to detained persons.
Are you under investigation or facing charges in Spain? Société Juridique acts for foreign nationals throughout Spain, with offices in Alicante and Madrid and a 24-hour custody line. +34 669 30 21 13 or enquire online.
- Article 110 LECrim: appearance of the injured party
- Private prosecution and rights of victims
- Reporting an offence and criminal complaints
- Civil liability arising from an offence
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.
Frequently asked questions
What effect does the application of Article 109 of the Spanish Criminal Procedure Act produce?
The provision imposes no penalty. Its omission affects the position of the offended person in the proceedings and, where the information as to the right to appear as a party was not given, it may found the reinstatement of the procedural time limits or, in the case of the safety communications, the reopening of the step which was omitted.
What requirements and procedure does Article 109 of the Spanish Criminal Procedure Act lay down?
A statement taken from the offended or injured person before the judge, which is the moment at which the duty of information arises. Information as to the right to appear as a party and as to the waiver or non waiver of the restitution, of the reparation and of the indemnification. Information as to the rights set out in the Statute of the Victim, which may be delegated to specialised staff. Where persons with a disability take part, the adaptations of communication, the necessary supports, the possible facilitator and the accompaniment of a person of their choice.
How does the defence make use of Article 109 of the Spanish Criminal Procedure Act?
Scope of the waiver. The waiver of the civil claim is not to be presumed from the mere failure to appear. Where the record does not reflect an express and informed waiver, the civil liability remains open, which is relevant to the assessment of the reparation and to the mitigating circumstance of Article 21.5 of the Criminal Code. Effect upon the time limits for appeal. The information as to the right to appear as a party conditions the calculation of the time limits available to the victim. A defective communication is the basis upon which an appeal lodged out of time is admitted, and equally the basis upon which its admission is contested. Adaptations for persons with a disability. The adaptations of the third subparagraph are mandatory and not discretionary.
Is the English text of Article 109 of the Spanish Criminal Procedure Act official?
Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Royal Decree of 14 September 1882 approving the Spanish Criminal Procedure Act.
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