Right to Remain Silent in Spain: Legal Defence

In Spain, you are not required to testify against yourself. No one can be forced to provide evidence that may harm them in criminal proceedings. However, this right has limits and nuances that many people are unaware of: it does not cover every situation, it does not protect against every type of evidence and it does not remove the obligation to identify yourself.

Knowing its real scope before appearing before the police or the court can radically change the outcome of the proceedings.

What is the right against self-incrimination and where is it recognised?

The right not to testify against oneself and not to confess guilt is enshrined in Article 24.2 of the Spanish Constitution, within the right to a trial with all due guarantees. Its content is twofold: on the one hand, no one is obliged to make statements that incriminate them; on the other, no one is obliged to admit guilt. Both aspects operate independently and apply at every stage of criminal proceedings.

This right is developed in Article 520 of the Spanish Criminal Procedure Act for the police stage, which expressly recognises the detainee’s right to remain silent and not to take an oath. Within the framework of the European Convention on Human Rights, Article 6 of the European Convention on Human Rights — which guarantees the right to a fair trial — also protects the right not to contribute to one’s own incrimination, in accordance with the case law of the European Court of Human Rights.

However, the right has precise limits. It does not cover the obligation to identify yourself before the authorities. Nor does it prevent the State from obtaining evidence that exists independently of the will of the person under investigation: DNA samples ordered by a court, home searches authorised by a judge, or interception of communications ordered in accordance with the law. Therefore, the nemo tenetur principle — as this principle is known in legal doctrine — does not amount to total evidential immunity.

When is the right not to testify against yourself triggered?

The right operates most clearly during statements before the police and before the investigating judge. In both cases, the person under investigation may refuse to answer all or some of the questions, without that silence being interpreted as an indication of guilt. However, in practice many suspects are unaware that they have this right or wrongly believe that remaining silent will harm them. Neither is true: silence is constitutionally protected and does not, by itself, produce adverse procedural consequences.

A particularly delicate situation arises when the person under investigation wants to give a statement, but only in part. A partial statement — answering the defence lawyer’s questions but not those of the prosecution or the public prosecutor — is a right of the accused at trial, although it may create procedural tensions during the investigation stage. Therefore, the decision to give a partial statement must be a strategic decision taken with the lawyer, not an improvised reaction to the questions of the investigating authority.

Another frequent scenario is that of a person who, believing that cooperation will benefit them, voluntarily provides information that the prosecution did not have. In such cases, the person under investigation effectively waives the right without having received legal advice. Moreover, what is said becomes part of the case file and may be used against them at later stages of the proceedings.

Can silence be interpreted against the accused?

Under Spanish law, the silence of the person under investigation cannot be used as incriminating evidence or as an indication of guilt. The court cannot base a conviction on the fact that the accused has refused to testify. However, the assessment of silence in relation to other evidence is an area that the case law of the European Court of Human Rights has carefully defined: silence cannot be the sole or main basis for a conviction, but it may be taken into account when the prosecution evidence is already sufficiently strong in itself.

How to exercise this right properly: the role of the lawyer

The proper exercise of the right not to testify against yourself requires an informed decision, not a reflex based on panic or general distrust. The decision to remain silent, give a partial statement or give a full statement depends on the state of the evidence, the type of offence, what already appears in the case file and whether the person under investigation has a solid and coherent version that supports their defence. None of these variables can be assessed without first reviewing the case file.

Therefore, the lawyer’s role is not merely to accompany the person under investigation into the room. It is to analyse the case file, identify what the prosecution already knows, determine whether giving a statement adds anything to the defence that cannot be obtained by another means, and prepare the client for the possible scenarios. A well-prepared statement can strengthen the defence; a poorly prepared one can destroy it, even if the person under investigation tells the truth.

At Fechenbach Abogados, David Fechenbach Marcos, ICAM No. 122770, advises on the exercise of the right not to testify against oneself in each specific case. Legal assistance during a statement as a person under investigation includes prior review of the case file, guidance on whether it is advisable to give a statement and preparation of answers to foreseeable questions. The firm operates in Madrid, Ibiza and Cádiz, in Spanish, German and English.

It should be remembered, however, that the right against self-incrimination is not only relevant during a formal statement. It also applies when the police ask informal questions before arrest, when apparently harmless information is requested within an investigation, or when the person under investigation is asked to provide their own documents. In all these situations, the person under investigation may refuse and should know that such refusal cannot be sanctioned.

What happens when this right is waived without legal advice?

An implicit waiver of the right against self-incrimination — giving a statement without a lawyer, answering informal police questions without being aware of the consequences, or providing documents at the request of the prosecution without analysing their content — has direct and difficult-to-reverse consequences. What is said becomes part of the case file from that moment. There is no procedural mechanism that allows a statement already given to be withdrawn.

In addition, contradictions between the first statement and later statements are one of the most effective arguments available to the prosecution. A person under investigation who gives a spontaneous statement to the police and later changes their version before the investigating judge creates an inconsistency that the public prosecutor will use at trial. Therefore, acting without legal advice at that first moment often means giving away a procedural advantage that cannot be recovered.

Article 520 of the Spanish Criminal Procedure Act guarantees the right to legal assistance before any police statement. However, that right is only effective if the person under investigation expressly demands it and does not give in to pressure to testify immediately. Legal assistance at that first moment is the most effective safeguard of the right not to testify against oneself.

Contact Fechenbach Abogados

If you are going to give a statement as a person under investigation or have doubts about what you can and cannot say, Fechenbach Abogados can advise you before you appear.

We provide assistance in Madrid, Ibiza and Cádiz. Contact us without obligation at abogados.fechenbach.es.