Retraction of False Testimony (Art. 462 CP)

False testimony is a crime, but the Spanish Criminal Code rewards anyone who corrects course. Retraction under Art. 462 CP is the "golden bridge" the legislator extends to the witness, expert or interpreter who has lied in criminal proceedings: tell the truth in time and you are exempt from punishment. As criminal defence lawyers specialising in offences against the administration of justice, we explain how this absolutory excuse works, what it requires and where its limits lie.

What retraction under Art. 462 CP is

Retraction belongs among the offences against the administration of justice (Chapter VI of Title XX of the Criminal Code, Arts. 458 to 462 CP) and closes the regime on false testimony. It is neither an offence nor merely another mitigating factor: it is an absolutory excuse — a ground that, even though the offence is already complete, leaves the offender unpunished for reasons of criminal policy.

Article 462 CP declares exempt from punishment anyone who, having given false testimony in criminal proceedings, retracts in time, telling the truth so that it takes effect before judgment is delivered in the case concerned. The rationale is clear: the State has a greater interest in the court learning the truth — and deciding correctly — than in punishing someone who undoes their own lie. Acknowledging the falsity allows the court's decision to rest on the real facts, which is precisely the legal interest that false testimony endangers.

Full exemption: the rule in the statute

It is worth pinning down the scope of the rule precisely, because it is sometimes presented in a misleading way. In criminal proceedings, Art. 462 CP establishes full exemption from punishment as the general rule. This is not a mere reduction: a person who corrects course in time and proper form bears no criminal liability for the false testimony.

The only exception is set by the provision itself: where the false testimony had already caused the deprivation of liberty of a person, retraction stops exempting and the lower-degree penalties — below those laid down for the false testimony committed — are imposed. In other words, the rule is exemption; the reduction without exemption is reserved for the more serious situation in which the lie has already resulted in someone being deprived of their liberty.

The three requirements of a valid retraction

The settled doctrine of the Supreme Court has distilled three requirements that must be met cumulatively for a retraction to produce its exempting effect:

• Timeliness. The correction must take place before judgment is delivered in the proceedings in which the false testimony was given. This is the strictest condition: once that moment passes, Art. 462 CP no longer applies.
• Truthfulness. The new statement must match the historical truth of the events. It is not enough to disavow what was said earlier: the true version must be provided. A second lie to cover up the first is not a retraction.
• Spontaneity. The correction must be free and voluntary, not extracted by the imminence of discovery. The case law values the person undoing the lie of their own decision, rather than as a mere reaction to the certainty of being exposed.

The presence of these three elements is what distinguishes a criminally relevant retraction from a simple change in the statement. Establishing them — the timing, the content and the circumstances of the correction — is therefore the heart of the defence work.

The timing: before judgment

Art. 462 CP fixes a clear time limit: the retraction must arrive in time to take effect before the judgment in the case in which the witness testified. This means the witness may correct course in their own statement, in a later appearance, by written submission or at the hearing itself, provided the court can still take the truth into account before deciding.

Once judgment is delivered, the absolutory excuse closes. Hence the critical importance of acting promptly: a person who realises their statement was untruthful should not wait for the outcome of the proceedings, but immediately assess — with criminal-law advice — whether to correct course while the route under Art. 462 CP remains open.

The effect on the "mirror penalty" of Art. 458.2 CP

One of the most significant practical effects of retraction is that it prevents the aggravated penalty of Art. 458.2 CP from taking effect. That provision punishes false testimony given against the defendant in criminal proceedings for an offence with one to three years in prison and a fine, and raises the penalty — imposing the next degree up — where, as a result of the testimony, a conviction has been handed down.

This is the so-called "mirror penalty": the false witness who helps bring about an unjust conviction faces a particularly severe response. A timely retraction neutralises that risk, because it undoes the lie before judgment is delivered and, with it, before the aggravated penalty can ever apply. Correcting course in time not only avoids the reproach for the false testimony: it cuts off its gravest consequence at the root.

Witnesses, experts and interpreters

Retraction is not unique to the witness. The false-testimony regime also covers those who take part in the proceedings in a technical role, and Art. 462 CP reaches them equally:

• Experts and interpreters (Art. 459 CP). Anyone who maliciously departs from the truth in their report or translation faces the penalties of the preceding articles in their upper half plus a specific disqualification of six to twelve years. Their retraction is likewise governed by Art. 462 CP, so that a truthful and timely correction by an expert or interpreter can also bring exemption from punishment.
• Anyone presenting false witnesses (Art. 461 CP). They face the same penalties laid down for the witnesses themselves; if they act as a lawyer, court representative, employment-law graduate or representative of the Public Prosecutor in a professional capacity, the penalty is imposed in its upper half with a specific disqualification of two to four years. The logic of retraction extends across this entire regime.

Partial retraction and concurrence with other mitigations

Retraction allows for nuances worth knowing. Where the correction is partial — the falsity is acknowledged only as to some points — the effect can be graded in proportion to what is actually corrected, without necessarily extending full exemption to the testimony as a whole.

In addition, retraction may be combined with other circumstances that favour the person giving evidence. Telling the truth before the authorities before learning that proceedings are being directed at you may constitute the mitigating circumstance of confession (Art. 21.4 CP), and making good the harm caused by the false statement, the mitigating circumstance of reparation (Art. 21.5 CP). These routes are especially useful once judgment has been delivered and Art. 462 CP can no longer apply: even where full exemption is no longer possible, acknowledging the truth retains mitigating value.

What happens after judgment: review

Once judgment is delivered, Art. 462 CP ceases to apply, but acknowledging the truth keeps a far-reaching projection. If the false testimony was decisive for a conviction, the correction may ground the extraordinary review remedy (Art. 954 of the Criminal Procedure Act), an exceptional channel that allows a case already closed by a final judgment to be reopened where it appears that the judgment rested on false evidence.

So the truth told late does not save the false witness from their own liability — which is then governed by the mitigating circumstances — but it may be the key that repairs the miscarriage of justice suffered by a third party. This dual projection — exemption before judgment, review afterwards — makes retraction a figure to handle with care, in which every decision must be weighed deliberately.

Keys to the defence

The defence linked to retraction of false testimony is built on several technical pillars:

1. Fitting the absolutory excuse. Establishing that the correction meets the three requirements — timeliness, truthfulness and spontaneity — so that the full exemption of Art. 462 CP applies.
2. Checking the procedural moment. Verifying that the retraction took place, or can still take place, before judgment in the original proceedings, without which exemption is not possible.
3. Defining the deprivation-of-liberty scenario. Analysing whether the false testimony had already caused someone's deprivation of liberty, the only case in which the lower-degree penalty applies instead of exemption.
4. Subsidiary mitigation strategy. Where judgment has already been delivered, deploying the mitigating circumstances of confession and reparation (Arts. 21.4 and 21.5 CP) and, where appropriate, assessing the review remedy under Art. 954 of the Criminal Procedure Act.
5. Reconstructing the testimony. Examining the record or recording of the statement to establish precisely what was said, when it was corrected and to what extent — the basis of the whole strategy.

The timing of a retraction is, in these matters, a question of hours or days: acting quickly and with legal judgment is what allows Art. 462 CP to deliver its full effect.

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 in false-testimony proceedings and advise on retraction under Art. 462 CP, weighing the timing, the requirements and the effects of correcting course before it is too late. If you are facing a situation of this kind, you can contact the firm so that we can review your case.