Suing for insults or slander in Spain: prior conciliation, the one-year limit and retraction

In offences against honour, procedure decides as many cases as the merits. A publication may be objectively defamatory and still never reach trial because a police report was filed where a private prosecution was needed, because the prior conciliation hearing was not evidenced, or simply because the one-year limitation period was allowed to run out. This guide runs through those requirements in order, both for anyone considering proceedings and for anyone who has just received a conciliation summons.

You have been reported over something you said: why honour requires a private prosecution

Art. 215.1 CP is categorical: no one may be punished for slander or insults except on a private prosecution brought by the person offended by the offence or by their legal representative. Slander under art. 205 CP and insults under art. 208 CP are, as a general rule, private offences: they are not prosecuted automatically and police enquiries are not enough.

The difference from a police report is not a nuance. A report simply brings facts to the attention of the authorities; a private prosecution exercises the criminal action, is filed through a court agent with a lawyer’s signature, and turns the person bringing it into a prosecuting party, with the burdens that entails. That is why a police file on insults between private individuals usually ends up shelved without further steps: nobody is sustaining the accusation in the form the law requires.

For the person on the receiving end, this design has an immediate reading: the proceedings depend on a specific individual, not on the public prosecutor. That opens room for a negotiated solution which does not exist in other offences, and which is examined below.

The prior conciliation hearing (art. 804 LECrim)

Before the private prosecution there is a step that is frequently forgotten. Art. 804 LECrim provides that no private prosecution for insults or slander against private individuals will be admitted unless a certificate is produced showing that the claimant held a conciliation hearing with the defendant, or attempted it without effect. In general terms, art. 278 LECrim lays down the same requirement for offences prosecutable only at the instance of a party.

Three points are worth making about this requirement:

• Attempting it is enough. The law does not require the conciliation to succeed. Non-appearance by the other party or a failure to agree serve equally: what is filed is the certificate that it was attempted without effect.
• It only applies to private individuals. Art. 804 LECrim confines it to insults or slander "against private individuals", which links to the exception in the following section.
• It uses up time. Listing and holding the hearing takes time, and that time runs inside the one-year limitation period. That is why the step should be started early rather than in the final month.

For anyone summoned to conciliation, attending is a strategic decision best taken with advice: what is said there may end up in the later proceedings, and a poorly framed correction can read as an admission.

The exception: offences against officials, authorities or agents

Art. 215.1 CP adds that prosecution proceeds automatically where the offence is directed against a public official, an authority or an agent of the authority concerning acts relating to the exercise of their office. Both earlier requirements then disappear: no private prosecution by the injured party and no prior conciliation hearing are needed, and the public prosecutor may sustain the charge.

The exception has two limits that are often overlooked. The first is functional: the offence must relate to acts in the exercise of the office. An insult aimed at an official over a strictly private matter returns to the general regime of private prosecution. The second appears in art. 210 CP, which exempts from liability anyone who proves the truth of the allegations where they are directed against public officials over acts of their office or concerning the commission of administrative infringements. In other words, the same status that makes prosecution easier also widens the defence available.

Outside the offence proper, less serious conduct runs through other routes, such as the minor insult or unjust vexation of art. 173.4 CP within the circle of persons of art. 173.2 CP, which requires a report by the aggrieved party.

The time limit: one year, the shortest in the Code

Art. 131.1 CP closes the limitation scale with this rule: five years for all other offences, except minor offences and the offences of insults and slander, which become time-barred after one year. The law therefore groups offences against honour with the least serious infringements for limitation purposes, even though slander with publicity can carry six months to two years in prison under art. 206 CP.

One year is little room for a sequence that normally involves identifying the author of an anonymous or pseudonymous publication, preserving and evidencing the content before it is deleted, arranging the conciliation hearing and filing. Two practical consequences follow:

• For the injured party, securing the evidence comes before anything else. Content posted on a social network can disappear within hours, and recovering it later is costly and uncertain.
• For the person prosecuted, the date of the events is the first check the defence makes. Where posts are repeated or reproduced by third parties, identifying the dies a quo is not always obvious and is open to argument.

Insults and slander uttered in court: leave of the tribunal

Statements made within proceedings have their own regime. Art. 215.2 CP provides that no action may be brought for slander or insults uttered in court without prior leave of the judge or court hearing or having heard the case, and art. 805 LECrim requires that authorisation to be evidenced with the private prosecution, adding that the leave "shall not be regarded as sufficient proof of the allegation".

The rationale is plain: procedural debate requires wide latitude to make submissions, and without that filter any defence or prosecution pleading could become the seed of fresh litigation. For written material, art. 806 LECrim adds a common-sense rule: where the insult or slander was made in writing, the document containing it shall be produced where possible.

Retraction (art. 214 CP) and the injured party’s pardon (art. 215.3 CP)

These offences offer two exits that do not exist in most of the Code.

Retraction under art. 214 CP works as follows: if the accused acknowledges before the judicial authority that the allegations are false or unproven and retracts them, the court shall impose the penalty one degree lower and may refrain from imposing the disqualification of art. 213 CP —the one provided for slander or insults committed for a price, reward or promise—. The second paragraph requires a record of the retraction to be given to the injured party and, if they so request, published in the same medium in which the offence was made, in identical or similar space and within the period the court sets.

The injured party’s pardon under art. 215.3 CP extinguishes the criminal action, by reference to art. 130.1.5 CP, which requires it to be granted expressly before judgment is delivered and the injured party to be heard beforehand. In practice, retraction and pardon are usually negotiated together, and often alongside the reparation of art. 216 CP, which in these offences also covers publication of the judgment at the convicted party’s expense.

A note for anyone who spread the content through a media outlet: art. 212 CP makes the natural or legal person owning the medium jointly and severally liable in civil terms for slander or insults made with publicity within the meaning of art. 211 CP.

Proof of truth: two different rules

The two provisions governing the exceptio veritatis should not be mixed up, because their scope is very different:

• Slander (art. 207 CP). The accused is exempt from all penalty by proving the criminal act alleged. It is a full exemption with no restriction as to who the target was.
• Insults (art. 210 CP). The exemption applies only where the allegations are directed against public officials over acts of their office or concerning the commission of administrative infringements. Against a private individual, proving that what was said was true does not automatically exempt.

To that must be added the filter in art. 208 CP itself: only insults which, by their nature, effects and circumstances, are regarded in public opinion as serious amount to an offence, and those consisting of allegations of fact are not regarded as serious unless made with knowledge of their falsity or reckless disregard for the truth. That clause, together with the scope of freedom of expression, is where most of these cases are decided.

What to do (and what not to do) when facing a defamation case

If proceedings are announced or a conciliation summons arrives:

• Check the calendar before the merits. The date of the events and of the conciliation attempt decide whether the action is still alive.
• Review the procedural requirements. A missing conciliation certificate, the absence of leave for statements made in court, or proceedings brought by someone who is not the injured party are defects to be raised at the outset.
• Do not delete or edit the content without advice. Hasty removal does not destroy the evidence, which the other side has usually secured, and it weakens your own position.
• Weigh retraction carefully. It is a statutory reduction, but it means acknowledging that what was said was false; its effects should be measured before accepting it.

If you have been reported or proceedings for insults or slander have been announced, you can contact us at +34 91 078 65 74. You can also look at our page on offences against honour and at the practical difference between a police report and a private prosecution.