Exemption from the obligation to testify in crimes of gender and domestic violence.

As a gender-based violence law firm in Barcelona , in this article, we will address the question of whether or not a victim of gender-based or domestic violence is required to testify before a judge.

As lawyers specializing in gender violence in Barcelona , we can affirm that, as a general rule, witnesses summoned to testify before the Judge must answer questions posed to them by both the Court and the other parties, and are obliged to tell the truth, under the risk of incurring the crime of perjury if they fail to tell the truth.

Therefore, Article 416 of the Criminal Procedure Act allows the closest relatives of the accused or person under investigation to avail themselves of what is known as exemption from the obligation to testify, which allows them not to testify against the accused with whom they have a family relationship.

The possibility of invoking the exemption is especially relevant in crimes of gender-based and domestic violence, which are crimes that usually occur within the privacy of the family, in which the only direct witnesses are the perpetrators themselves. Thus, it is common for the victim herself, who will likely be the only direct evidence of the crime, to be entitled to the exemption due to the family ties she maintains with the accused or the person under investigation.

Which family members are eligible for the exemption?

As a gender violence lawyer in Barcelona , we must emphasize that the exemption from the obligation to testify does not apply to any family member of the accused or person under investigation, but only to those closest to them.

• First, direct relatives, whether ascendants or descendants, can benefit from it. That is, parents, grandparents, great-grandparents, children, grandchildren, etc.

• Secondly, the spouse or person who is related to the accused or person under investigation through a relationship of affection similar to marriage may avail themselves of the exemption. Cohabitation between the two is not required to qualify for the exemption.

• Finally, the dispensation also covers blood or uterine siblings, as well as collateral blood relatives up to the second civil degree.

What are the effects of being exempt from the obligation to declare?

We are a law firm specializing in gender-based violence in Barcelona . Therefore, we can affirm that, before beginning the testimony regarding any of the aforementioned relatives of the accused, the Judge must inform them that they are not required to testify against the person under investigation or accused, although they may make any statements they deem appropriate.

It is important to keep in mind that the witness’s family member has the right to avail himself of the waiver if he so wishes, but under no circumstances is he obligated to do so.

Exceptions to the exemption from the obligation to declare

In some cases, despite the existence of a family relationship, the law prevents the witness from availing himself of the exemption. As a lawyer specializing in gender violence in Barcelona , we can emphasize that the exemption does not apply when any of the following circumstances apply:

• If the relative witness holds legal representation or guardianship of the minor or disabled victim.

• If the crime allegedly committed is serious, the witness is an adult and the victim is a minor or a person with a disability.

• When the relative witness cannot understand the meaning of the dispensation due to his or her age or disability.

• If the relative witness is or has been present in the proceedings as a private prosecutor.

• When the relative witness, having been informed of his right to waiver, has agreed to testify during the proceedings.

Can a victim who has filed a complaint against the accused benefit from the exemption?

As we saw earlier, if the victim is represented in the proceedings as a private prosecutor, they cannot avail themselves of the exemption. However, it is possible that the victim reported the incident but did not wish to appear as a party in the proceedings. Can they avail themselves of the exemption in this case? The answer to this question is not simple.

The majority of jurisprudence holds that when the victim spontaneously files a complaint to obtain personal protection, the exemption does not apply. It thus holds that Article 416 of the Criminal Procedure Law provides a waivable right for witnesses, but not for spontaneous complainants regarding events that have harmed them and who go to the police seeking protection. The Supreme Court ruled in this regard in Ruling No. 806/2015, of December 11.

Can the accused’s ex-partner claim exemption if, at the time of giving a statement, there is no longer a romantic relationship between them?

This question, regarding the timing of the relationship that gives rise to the exemption from the obligation to testify, is a matter of debate. Is it possible to invoke the exemption for events that occurred when there was a relationship of affection, if that relationship has been severed at the time of the statement?

According to the Supreme Court, it is necessary to analyze the circumstances of the specific case and compare them with the basis for the dispensation. If solidarity is the sole basis, we can understand that the witness is obliged to testify if, at the time of the statement, the family relationship no longer exists. However, the Court itself clarifies that the breakdown of the relationship cannot prevent the witness from availing himself of the dispensation if the statement compromises the family privacy under which the events occurred.

Can a victim who appeared in the proceedings as a private prosecutor avail himself of the exemption once he has withdrawn from the proceedings?

After several years of conflicting rulings between the courts, the Supreme Court gave an affirmative answer to this question through the Agreement of the Plenary Session of the Supreme Court of January 23, 2018. Thus, it allowed a relative witness who was no longer represented in the proceedings as a private prosecutor to avail himself of the exemption.

However, with the entry into force of the reform implemented by Organic Law 8/2021, of June 4, the situation changed radically. Currently, the Criminal Procedure Law itself prevents a relative witness who has appeared in the proceedings as a private prosecutor from availing himself of the exemption, regardless of whether or not he is still present in that capacity at the time of giving testimony (Article 416.1.4 of the Criminal Procedure Law).

Due to his level of specialization and results, Joaquín Sugrañes is considered one of the best gender-based violence lawyers in Barcelona.