Article 118 Spanish Criminal Procedure Act: Rights of the person under investigation

Article 118 of the Spanish Criminal Procedure Act confers on any person to whom a punishable act is attributed the right to exercise a defence from the moment of that attribution, and lists the rights of which he must be informed: to know the facts alleged, to examine the case file, to appoint a lawyer, to remain silent and not to testify against himself.

Wording of Article 118 of the Spanish Criminal Procedure Act

Requirements and procedure

1. Attribution of a punishable act to a person, from which moment the right of defence arises.
2. Immediate information as to the facts alleged and as to any relevant change in the subject matter of the investigation.
3. A right to examine the proceedings with sufficient time, and in any event before the first statement.
4. A right to appoint a lawyer freely, to legal aid where applicable, and to the free assistance of an interpreter.
5. A right to remain silent, not to testify against oneself and not to confess guilt, together with the confidentiality of communications with the lawyer.

Defence strategy

Verifying the information of rights. This is the first task of the lawyer. The record must show complete and comprehensible information as to the rights, with the date and time. Generic information, information given in a language not understood, and information omitting the specific factual allegation all give rise to material prejudice.

Access to the essential elements of the case file. Paragraph 1(b) confers a right of access with sufficient time. Where secrecy has been declared, access must in every case be given to those elements essential to challenge the deprivation of liberty, in accordance with Article 302 and Directive 2012/13.

The moment at which the status arises. Delay in formally conferring the status on a person who materially holds it, by keeping him as a witness, deprives him of the right of defence. Statements taken in that situation are void and cannot support a conviction.

Assistance of an interpreter. For foreign clients this is the safeguard most often defective. It extends to the documents essential to the defence and to communications with the lawyer, and a failure to provide it properly is a strong ground for challenging everything that follows.

Confidentiality of communications with the lawyer. Paragraph 4 guarantees confidentiality, subject only to cases of terrorism or membership of a criminal organisation ordered by a court. Its breach undermines the validity of the proceedings at their root.

Exercising the right to silence. Silence cannot be treated as an indication of guilt. Reliance on the exercise of that right as incriminating material in a judgment is a ground of appeal. Declining to answer at the first appearance, and giving an account only once the file has been studied, is frequently the sounder course.

• Rights of the person under investigation
• 24-hour custody assistance
• Spanish Criminal Procedure Act 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.