Article 262 Spanish Criminal Procedure Act: Duty of Professionals to Report Offences

Article 262 of the Criminal Procedure Act obliges those who, by reason of their office, profession or trade, learn of a public offence to report it immediately to the prosecution service, to the competent court, to the investigating judge or, failing those, to the local judge or the nearest police officer where the offence is being committed in the act. Failure to comply attracts the fine of article 259, imposed as a disciplinary matter, with a specific minimum for medical and pharmaceutical professionals in relation to their practice. The article is the source of the hospital reports that begin most prosecutions for assault and for domestic violence.

Wording of Article 262 of the Spanish Criminal Procedure Act

Requirements and procedure

1. Knowledge of a public offence acquired by reason of an office, profession or trade. Knowledge acquired privately does not engage the duty.
2. A public offence, so offences prosecutable only on complaint by the injured party are outside the duty.
3. Immediacy of the report, which the case law reads as promptness compatible with the professional situation.
4. That the omission does not itself give rise to liability under other laws, in which case that liability applies instead.

Defence strategy

The origin of the file and the position of the client. Where the proceedings began with a report by a hospital or a school rather than with a complaint by the person concerned, the defence obtains the report itself and not merely the summary in the police file. What the professional actually observed, what the patient said and what was inferred are frequently different things, and the report is regularly more equivocal than the account that reaches the court.

Professional confidentiality and its limits. The duty in this article coexists with the professional duty of confidentiality protected by article 199 of the Criminal Code. A professional who transmits information beyond what the report of the offence requires, or who discloses clinical data unrelated to it, exceeds the duty. Where the firm acts for a professional, that boundary is the substance of the defence; where it acts for the accused, the excess supports an objection to the use of the material.

Offences prosecutable only on complaint. The duty extends to public offences. Where the conduct constitutes an offence prosecutable only on the complaint of the injured party, such as minor coercion under article 172.3 or the offences against honour, a report by a third party does not supply the complaint, and the proceedings cannot be opened on that basis alone. This objection is raised as a preliminary matter.

The victim who does not wish to proceed. Because the duty operates independently of the victim’s wishes, cases regularly proceed against the victim’s stated intention, particularly in the domestic violence jurisdiction. The defence must explain to the client at the outset that the withdrawal of the victim will not end the case, and must build the defence on the evidence rather than on the expectation of a withdrawal.

• Article 110: joining as an injured party
• Article 153: domestic assault
• Witness statements and dispensation
• 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.