The Victim's Exemption to Testify and the Private Prosecution: The Supreme Court Clarifies Art. 416 LECrim

The exemption to testify under Art. 416 of the Criminal Procedure Act (LECrim) is one of the most debated institutions of Spanish criminal procedure, and especially so in gender-based violence cases. The Supreme Court, in a judgment of 21 May 2026 (appeal 10639/2025), returns to it to clarify a point of great practical relevance: a victim who has become a private prosecutor and has testified during the investigation phase does not regain the exemption merely by later ceasing in that procedural role. As a firm dedicated exclusively to criminal law, we offer below an informative commentary on this doctrine, which does not amount to advice on any particular case.

What the exemption of Art. 416 LECrim is

Art. 416 LECrim grants certain relatives of the accused the right not to testify as witnesses against him. The circle of exempt persons comprises, essentially, the spouse or a person joined by an analogous emotional relationship, ascendants and descendants, and siblings. It is neither a prohibition on testifying nor a duty of silence, but a power: the relative may testify if they wish, but the law does not compel them to do so.

The most important procedural consequence is the duty to warn. Before taking the statement of a witness in one of those family relationships, the court must inform them that they are exempt from the obligation to testify. The omission of that warning, where it is due, may compromise the validity of the testimony. For this reason, the question of when the duty to warn exists is not a formal detail but a point that conditions the evidence.

Why this exemption exists

The rationale of the exemption is the protection of family and emotional ties. The law recognises that requiring a person to testify against their spouse, parents, children or siblings places the witness in a conflict that is hard to bear: that which pits the duty to tell the truth against loyalty and affection towards the closest relative. Faced with that conflict, the legislator chooses not to compel the statement and leaves the decision to testify or not in the relative's own hands.

It is, therefore, an exception to the general duty to testify that falls on anyone with knowledge of facts relevant to a criminal case. Like any exception, its scope is defined by its purpose: it protects someone caught in that tension between the truth and the family tie, not someone who has chosen to take sides against the relative. This idea explains its loss when the victim takes on the role of prosecutor.

How it is lost by acting as a private prosecutor

The private prosecution is the position assumed by the person harmed by the offence when they appear in the proceedings to exercise the criminal action — and, where appropriate, the civil action — against the accused. A person who becomes a private prosecutor ceases to be a mere family witness and becomes an active party to the proceedings, seeking the conviction of their relative.

That decision is hard to reconcile with the rationale of the exemption. If Art. 416 LECrim protects someone who does not wish to act against their relative, it makes no sense to invoke it from the position of someone who is precisely seeking their conviction. For this reason, the doctrine holds that, by appearing as a private prosecutor, the victim voluntarily leaves the protective scope of the provision. She has made a choice incompatible with the silence the exemption shields.

The decisive step taken by the judgment of 21 May 2026 (appeal 10639/2025) is to clarify what happens when that victim, after having become a private prosecutor and having testified during the investigation, later ceases in that procedural role. The Supreme Court concludes that the subsequent cessation does not return the exemption to her: she does not regain the right not to testify of Art. 416 LECrim merely by dropping the prosecution. Consequently, since she appeared at the time as a prosecutor, the court was not obliged to warn her of the right not to testify.

Settled doctrine that the judgment reiterates

This conclusion is not an isolated novelty but the reiteration of settled doctrine. The Criminal Chamber has consistently held that the status of an exempt family witness and that of a prosecuting party respond to opposing logics, and that the choice of the latter cannot later be undone in order to recover the advantages of the former. The judgment of 21 May 2026 confirms that criterion in a case of habitual abuse.

What matters is the idea of procedural coherence: the decisions the harmed party makes about their position in the proceedings produce effects and cannot be ignored when they cease to suit. Ceasing in the private prosecution is legitimate, but it does not retroactively erase the meaning of the earlier acts.

Why it matters in gender-based violence

The practical reach of this doctrine is clearly seen in gender-based violence proceedings, and in particular in offences of habitual abuse under Art. 173.2 CP. In such cases, the victim's testimony is usually evidence of the first order, and the exemption of Art. 416 LECrim allows, where applicable, that statement not to be given. Hence the question of whether the victim retains the right not to testify carries decisive weight in the outcome of the proceedings.

The Supreme Court's doctrine brings legal certainty to particularly sensitive ground. These proceedings demand a delicate balance between respect for the will of the victim, who may be subject to pressures of very different kinds, and the need for the criminal process not to be left devoid of content. Defining with precision when the duty to warn under Art. 416 LECrim exists and when it does not, and what effects appearing as a private prosecutor produces, helps to avoid nullities and to make the system's response foreseeable. The concrete application of the exemption, in any event, depends on circumstances that can only be assessed individually.