Article 118 LECrim: the Right of Defence of a Suspect in Spain

Almost every argument in a Spanish criminal case — whether a statement is valid, whether an investigative step was useful, whether a piece of evidence must be excluded — ends up pointing back to the same provision. Article 118 of the Spanish Criminal Procedure Act (Ley de Enjuiciamiento Criminal, LECrim) defines who counts as a suspect, from what moment that person may defend themselves and what the right of defence actually contains. It is worth reading in full at least once.

If You Are Under Investigation: When the Right of Defence Begins

Article 118.1 LECrim opens with a deliberately broad formula: "any person to whom a punishable act is attributed may exercise the right of defence, taking part in the proceedings, from the moment they are notified of their existence, have been arrested or made subject to any other precautionary measure, or their formal indictment has been ordered".

Three doors of entry, then: notice of the proceedings, arrest or a precautionary measure, and formal indictment. Only one needs to open for the person to stop being an outsider and become a party, with every power listed below.

Paragraph 5 closes the circle from the other end: "the admission of a criminal complaint, and any procedural step from which the imputation of an offence against a specific person or persons follows, shall be immediately brought to the knowledge of those presumed responsible". There are no secret investigations against a suspect except through the formal secrecy of the proceedings.

The Catalogue of Eight Rights

The same first paragraph requires that the suspect be informed "without undue delay" of eight rights, which the provision lists from a) to h):

• a) To be informed of the acts attributed to them "as well as of any relevant change in the subject matter of the investigation".
• b) To examine the case file before making a statement.
• c) To take part in the criminal proceedings in order to exercise the right of defence.
• d) To freely appoint a lawyer of their choice.
• e) To apply for legal aid, and to be told how the procedure works and what the conditions are.
• f) To translation and interpretation on the terms of Article 123 LECrim.
• g) To remain silent and to decline to answer some or all of the questions put to them.
• h) Not to testify against themselves and not to plead guilty.

The statute adds a requirement of form that is routinely overlooked: the information must be given "in comprehensible and accessible language", adapted to "the age of the recipient, their degree of maturity, disability and any other personal circumstance".

Letter a): Knowing What Is Alleged, and in What Detail

Article 118.1.a) LECrim is not satisfied with generic information: it requires the account to be given "in sufficient detail to allow the effective exercise of the right of defence". An allegation described as "an offence against property" does not meet that standard.

The duty is also a continuing one. Article 775.2 LECrim repeats it for abbreviated proceedings, the ordinary track for most offences: "where the outcome of the investigative steps produces any relevant change in the subject matter of the investigation and in the acts imputed, the Judge shall promptly inform the person under investigation".

Letter b): Access to the File Before Making a Statement

This is probably the most productive letter in practice. The right to examine the file is granted "with due advance notice" and "in any event, before a statement is taken".

Making a statement without having seen the police report, the complaint or the expert opinions leaves the defence working blind. Where access has not been granted, the prudent course is usually to ask for the statement to be adjourned and to have the incident recorded in the minutes.

The Lawyer: Free Choice, Private Interview and Court Representative

Article 118.2 LECrim describes the core content: the right of defence "comprises the assistance of a lawyer of free choice or, failing that, of a duty lawyer, with whom the person may communicate and hold a private interview, even before a statement is taken by the police, the public prosecutor or the judicial authority", and who "shall be present at all statements as well as at identification parades, confrontations of witnesses and reconstructions of the events".

Two details matter. The private interview is available before the statement, including at the police station. And the lawyer's presence is not confined to the statement: it extends to identification parades, confrontations and reconstructions.

Paragraph 3 adds representation: "in order to act in the proceedings, persons under investigation must be represented by a procurador and defended by a lawyer". The procurador is the court representative who files and receives documents on the party's behalf, a role separate from the defence lawyer. One is appointed by the court where the person does not name their own and asks for that appointment, and in any event where they lack the legal capacity to do so.

Silence and the Privilege Against Self-Incrimination

Letters g) and h) contain two distinct rights that are often merged. Silence is the power not to speak at all, or to speak only in part — answering questions from one's own lawyer and not those of the prosecution. The privilege against self-incrimination prevents any adverse consequence being drawn from the refusal to plead guilty.

Two levels are worth keeping apart: attending and testifying. Where the summons comes from a court, attendance is compulsory; testifying is not. The strategy for each stage is decided case by case and often differs between the police statement and the one taken by the investigating judge.

Confidentiality Under Article 118.4 LECrim

Paragraph 4 is categorical: "all communications between the person under investigation or charged and their lawyer shall be confidential". And it attaches a concrete consequence where that confidentiality is broken during an investigative measure: "the judge shall order the deletion of the recording or the delivery to the addressee of the intercepted correspondence, recording these circumstances in the case file".

The exception is narrowly drawn: it does not apply "where the existence of objective indications of the lawyer's participation in the offence under investigation, or of their involvement together with the person under investigation or charged in the commission of another criminal offence, is established". Objective indications, not suspicions.

Notice of the Imputation and the First Court Appearance

The duty in Article 118.5 LECrim takes concrete form at the first appearance under Article 775.1 LECrim, where the judge gives notice "in the most comprehensible manner, of the acts imputed" and the person under investigation is required to designate an address in Spain for service of documents, "with the warning that service at that address or on the person designated will allow the trial to be held in their absence in the cases provided for in Article 786".

That requirement carries more weight than it appears to: an address given carelessly can end in a trial held without the defendant present.

The Limits: Secrecy of the Proceedings and Article 527 LECrim

Article 118.2 LECrim accepts that the right is exercised "with no limitations other than those expressly provided for by law". There are two main ones.

The first is the secrecy of the proceedings under Article 302 LECrim, which the judge may declare by reasoned order "for a period of no more than one month" in order to avoid a serious risk to the life, liberty or physical integrity of another person, or to prevent the outcome of the investigation from being seriously compromised, and which "must necessarily be lifted at least ten days before the close of the investigation".

The second is the set of restrictions in Article 527 LECrim for incommunicado detention, which may remove the choice of a lawyer of confidence, the private interview and access to the file — save for those elements essential to challenge the lawfulness of the detention.

What the Defence Looks At

• Whether the rights were read out, and when. The record should show the moment; late information is a ground of challenge.
• How detailed the allegation is. Without concrete facts there is no effective defence, and Article 118.1.a) LECrim demands that detail.
• Prior access to the file. Making a statement without the papers rarely helps; an adjournment is requested and put on the record.
• The private interview with the lawyer. Before the statement, and with enough time to be of any use.
• The basis for any secrecy order. Secrecy declared without a reasoned order, or extended without grounds, weakens everything obtained under it.
• The general framework of the right of defence. Article 118 LECrim does not stand alone: it is read together with the general statute governing the defence.

If you have been notified that you are named as a suspect in criminal proceedings, the time to organise the defence is before the first statement. You can speak to us on +34 91 078 65 74 or read our criminal defence page.