Gender-Based and Domestic Violence Cases in Marbella

The exemption from the duty to testify (Article 416 of the Criminal Procedure Act): the evidentiary heart of these proceedings

Article 416 of the Criminal Procedure Act exempts from the obligation to testify anyone who is or has been bound to the person under investigation by marriage or a similar relationship of affection, among other family ties. Since these offences are generally committed within the privacy of the home, with no evidence available beyond the victim's own statement, the scope of this exemption is frequently decisive for the very viability of the proceedings. Case law has, however, shown notable fluctuation in recent years on an essential point: whether a victim who has brought a private prosecution and later withdraws from it regains, or does not regain, the right to invoke the exemption. The Plenary Session of the Supreme Court's Second Chamber settled this question restrictively:

"...el derecho a la dispensa es incompatible con la posición del denunciante como víctima de los hechos, máxime en los casos de violencia de género en donde la mujer denuncia a su cónyuge o persona unida por relación de hecho análoga a la matrimonial."

(The court held that the right to the exemption is incompatible with the position of the complainant as the victim of the facts, especially in cases of gender-based violence where the woman reports her spouse or a person bound to her by a relationship analogous to marriage.) This doctrine, which changed the earlier criterion set by the Plenary Agreement of 2018, establishes that a victim who reports the facts and brings a private prosecution cannot, once the trial arrives, invoke the exemption to avoid testifying, since that position is incompatible with that of someone who has activated the criminal process as the party directly harmed. The reform introduced by Organic Law 8/2021 further reinforced this line, expressly excluding the exemption where the witness, being of legal age, has already agreed to testify after being informed of the right not to do so, or is a party to the proceedings as a private prosecutor. Where, by contrast, the victim has not become a party as a private prosecutor and decides to invoke the exemption at trial, case law bars any reliance on her prior statements made during the investigation, even where they were given with full adversarial safeguards, which in practice frequently leads to dismissal or acquittal where no additional corroborating evidence exists.

Practical consequences of the exemption for the parties' strategy

The complexity of this institution requires the procedural strategy to be planned from the very first moment of the proceedings. In defending the person under investigation, it is essential to verify whether the victim was correctly informed of her right to the exemption before each of her statements, and whether, as the case may be, she formally became a party as a private prosecutor or merely cooperated as a complainant without adopting that procedural position — a point that can prove decisive for the validity of her testimony at trial. In representing the victim, before any procedural decision is made, we assess with her the exact consequences of becoming a party as a private prosecutor — which closes the door to any future exemption — as against remaining a mere complainant, together with the gathering of corroborating evidence — medical reports of injuries, messages, hearsay witnesses — that would allow the prosecution to be sustained regardless of whatever decision she ultimately makes about her own testimony.

Breach of protective measures (Article 468 of the Criminal Code): the victim's consent does not exclude the offence

Where a restraining order or a prohibition on communication is in force, whether as a sentence or as a precautionary measure, and both parties voluntarily resume contact, the question arises as to whether the victim's consent excludes the criminal liability of the person under investigation or convicted for breach of the order. The Plenary Session of the Supreme Court's Second Chamber, in its non-jurisdictional agreement of 25 November 2008, resolved this question emphatically:

"...el consentimiento de la mujer no excluye la punibilidad a efectos del artículo 468 del Código Penal."

(The Chamber held that the woman's consent does not exclude criminal liability for the purposes of Article 468 of the Criminal Code.) The rationale for this doctrine lies in the fact that the legal interest protected by the offence of breaching a protective order is not exclusively the victim's safety, but the effectiveness of judicial decisions and a collective interest that is not at the parties' disposal: neither the person convicted nor the protected person herself may, by their own will alone, set aside a measure ordered by a court. The Court of Justice of the European Union further confirmed, in a 2011 ruling, that European Union law does not preclude the mandatory imposition of this restraining measure in Spain, even where the victim wishes to resume living with her aggressor, since the rule pursues, in addition to individual protection, general interests of society. The victim's consent may, nonetheless, be relevant as a factor in individualizing the sentence, allowing it to be imposed at the minimum level, and may even open the door to suspending its enforcement where the other legal requirements are met.

The position of the victim herself in a consented breach

A question of great practical significance, and not always well understood by those going through this situation, is whether a victim who facilitates or consents to the renewed contact may herself incur criminal liability as a participant in the breach. The practice of our courts has not been uniform on this point, with some rulings ruling out such liability — since no prohibition rests upon her — and others having found her liable as a necessary accomplice. The criterion of the Spanish Public Prosecutor's Office is generally to rule out the victim's criminal liability in these cases, given her position as the person protected by the rule rather than as someone bound by it — a position we assert firmly in defending those who find themselves in this situation.