False Testimony in Civil and Employment Cases (Art. 458 CP)

Lying before a court is not just a question of credibility: it can amount to a crime. False testimony in civil or employment proceedings is set out in Article 458 of the Spanish Criminal Code (CP) and punishes a witness who lies in their evidence before a non-criminal court, with both imprisonment and a fine. As criminal defence lawyers specialising in offences against the administration of justice, we explain exactly what this provision punishes, how it differs from false testimony in criminal cases and how the defence is built.

What Article 458 CP punishes

False testimony belongs among the offences against the administration of justice (Chapter VI of Title XX of the Criminal Code, Arts. 458 to 462 CP). The protected legal interest is twofold: the sound administration of justice, which needs the evidence given before the court to be truthful, and the interests of the parties, whose fortunes in the case depend largely on what witnesses and experts say.

Article 458.1 CP punishes the witness who lies in their testimony in judicial proceedings. Where those proceedings are not criminal — that is, in civil, employment, commercial and administrative-litigation cases — the penalty is six months to two years in prison and a fine of three to six months. This is worth stressing, because it is sometimes wrongly said that civil false testimony is punished "only with a fine": Art. 458.1 CP also provides for a custodial penalty.

In which proceedings it applies

False testimony in non-criminal cases arises frequently in disputes where witness evidence is decisive and where there is a strong personal or financial dimension:

• Family. Divorce, custody or contact proceedings, where evidence about a party's conduct or capabilities can tip the decision.
• Succession. Inheritance and estate-division disputes, in which witnesses give evidence about intentions, deliveries or family relationships.
• Employment. Dismissals, claims for sums due or recognition of an employment relationship, where colleagues or managers testify about what actually happened at the company.
• Commercial and civil property matters. Contractual claims, liability disputes or shareholder conflicts in which the witnesses' account proves decisive.
• Capacity. Proceedings on support measures for people with disabilities, in which evidence is given about the person's situation and circumstances.

In all of them, classifying the conduct as a crime depends on the elements of the offence being met, not on one party believing the witness did not tell the truth.

Who can commit it: the parties are not subjects of the offence

A central — and often misunderstood — question is who can commit this offence. Article 458 CP refers to the witness; Articles 459 and 460 CP, to experts and interpreters. These are the subjects of the offence.

The parties to the civil case — claimant and defendant — do not commit false testimony when they lie during their questioning (Article 301 of the Civil Procedure Act). They give evidence about their own affairs and without the duty of impartiality required of a witness, so their departure from the truth may affect how the evidence is weighed, but it does not, on its own, make out this offence.

Nor do statements made in mediation, conciliation or a settlement amount to false testimony: they are not statements given as a witness before a court in the course of taking evidence.

Experts, interpreters and distortion of the truth

The Criminal Code grades its response according to who gives evidence and how the truth is departed from:

• Experts and interpreters (Art. 459 CP). Where they maliciously depart from the truth in their report or translation, they are given the penalties of the preceding articles in their upper half, plus a specific disqualification from their profession, trade, employment or public office for six to twelve years. The reproach is greater because of the technical role and the trust the court places in their assessment.
• Distorting the truth without an outright lie (Art. 460 CP). A witness, expert or interpreter who, without substantially departing from the truth, distorts it through reticence, inaccuracies or by withholding relevant facts or data, is punished with a fine of six to twelve months and, where applicable, suspension from public employment or office, profession or trade for six months to three years. This is the mitigated form: no false version is invented, but the truth is distorted in a criminally relevant way.

Presenting false witnesses (Art. 461 CP)

Article 461 CP punishes anyone who knowingly presents false witnesses or lying experts or interpreters with the same penalties laid down for them. It is the route by which liability can reach not only the person who lies, but the person who instrumentalises that lie in the case. Where the person responsible is a lawyer, court representative, employment-law graduate or representative of the Public Prosecutor acting professionally, the penalty is imposed in its upper half with a specific disqualification. The defence against this offence requires proof of actual knowledge of the falsity, which is not presumed from the mere act of calling a witness.

The elements of the offence: intent and materiality

Not every inaccurate statement is a crime. False testimony requires two elements that strictly limit its scope:

• Intent. The witness must depart from the truth knowingly, aware that what they are stating does not match reality. Errors of perception, gaps in memory, good-faith confusion and subjective impressions of events all fall outside the offence.
• Materiality. The lie must bear on facts that are relevant to the subject of the proceedings. An imprecision about an incidental or irrelevant detail does not make out the offence, which reserves criminal reproach for departures from the truth capable of affecting the court's decision.

The settled case law of the Supreme Court insists on this restrictive nature: false testimony cannot become a tool for pursuing every witness whose account displeases one of the parties; it requires proof of intent and of the significance of the lie.

The retraction defence (Art. 462 CP)

The Criminal Code offers a way out for the witness who has lied but corrects course. Article 462 CP declares exempt from punishment anyone who, having given false testimony, retracts in time and tells the truth before judgment is delivered. The retraction must be complete — acknowledging the falsity and providing the true version — and timely, that is, made while the proceedings can still take the correction into account. For that reason, where testimony did not match reality, acting early is decisive: correcting it as soon as possible may exclude or, at the very least, mitigate liability as cooperation with the justice system. This route should be assessed with criminal-law advice from the outset.

Lines of defence

The defence against a charge of false testimony in a civil or employment case is built on several technical pillars:

1. Absence of intent. Showing that the gap between what was stated and reality stems from an error of perception, a gap in memory or a good-faith interpretation, rather than a knowing decision to lie.
2. Lack of materiality. Establishing that the inaccuracy bears on an incidental or irrelevant point, so that it does not affect the court's decision.
3. The witness's procedural status. Checking whether the person gave evidence as a witness or as a party; in the latter case, the conduct falls outside the offence.
4. Quality of the testimony. Examining how the statement was given, the oath or affirmation and the conditions of the questioning before the court.
5. Retraction. Assessing the application of Art. 462 CP where it is still possible to correct the statement before judgment.
6. Limitation. Verifying whether the five-year period (Art. 131 CP) from when the statement was given has elapsed, which extinguishes criminal liability.

Reviewing the record or recording of the hearing, the context of the statement and the evidence taken in the original case is, in these matters, decisive for establishing what was really said, with what intention and with what significance.

Criminal defence in Madrid and throughout Spain

At Alonso Sala we are a firm dedicated exclusively to criminal law, based at Velázquez 27, Madrid and covering the whole of Spain. We take on the defence and private prosecution in proceedings for false testimony in civil, employment, commercial and administrative-litigation cases, with particular attention to intent, to the materiality of the statement and to the use of retraction. If you are facing a situation of this kind, you can contact the firm so that we can review your case.