False Accusation vs. Crime Simulation (Art. 456-457 CP)

False accusation (Art. 456 CP) and crime simulation (Art. 457 CP) are two distinct offences in the same chapter of the Criminal Code, devoted to false accusation and the simulation of offences. Although they share a common legal interest (the proper Administration of Justice and protection against abuse of the State's sanctioning apparatus), they differ substantially in their structure, penalties and capacity to harm a third party's honour, which requires the defence to articulate specific strategies in each case.

False Accusation (Art. 456 CP)

Article 456 CP punishes whoever, with knowledge of its falsity or reckless disregard for the truth, imputes to a person facts that, if true, would constitute a criminal offence, where the imputation is made before a judicial or administrative officer with a duty to investigate. Penalties are graduated by the seriousness of the offence falsely imputed: 6 months to 2 years' prison and a 12-24 month fine for imputing a serious offence; a 12-24 month fine for a less serious offence; and a 3-6 month fine for a minor offence. The offence requires three essential elements: imputation of specific facts, identification of a determinate person, and knowledge or reckless disregard of the falsity.

Crime Simulation (Art. 457 CP)

Article 457 CP punishes whoever, before the officers mentioned above, simulates being responsible for or the victim of a criminal offence, or reports a non-existent one, thereby triggering procedural action. The penalty is a fine of 6 to 12 months. The essential difference is structural: simulation operates on an invented offence or an imputation directed at oneself, without naming an identified third party, which places it at a lower level of seriousness because it does not harm another's honour.

The Dividing Line

The boundary between false accusation and simulation turns, above all, on whether a specific person is imputed. If the report attributes criminal facts to an identified individual (even by sufficient description), it falls under Art. 456; if it invents an offence without naming an author or names indeterminate persons, it is simulation (Art. 457). Supreme Court case-law has consolidated the distinguishing criteria, although borderline cases are common in practice and require case-by-case analysis.

Procedure and the Prejudicial Question

False accusation requires, as a procedural prerequisite, a prior judicial declaration of the falsity of the reported facts —normally a final acquittal or a final dismissal order in the proceedings initiated by the report. This prejudicial requirement protects the reporting party from proceedings against them until the falsity has been judicially established. Simulation, by contrast, requires no specific prejudicial question and may be prosecuted autonomously.

Defence Strategy

We build the defence around the most favourable classification: challenging the subjective element (a genuine good-faith belief in the truth of the report, a real if imprecise factual basis, an error of perception); reclassification from false accusation to simulation where the imputation does not target a specific person; mitigating factors (early retraction, reparation, undue delay); and argument on the prejudicial question. We act before the Investigating Courts, the Criminal Courts and the Provincial Courts.

The procedural path and the competent court: from police report to verdict

Both false accusation or report under Article 456 and simulation of an offence under Article 457 follow the ordinary rules of criminal procedure. The notitia criminis arrives through a complaint by the injured party, a police report, or ex officio when the judge perceives sufficient indications. The investigating court (Juzgado de Instrucción) then opens the instruction phase and carries out the steps needed to establish whether there was an imputation against a specific person (Article 456) or merely an unjustified mobilisation of the judicial apparatus without pointing to anyone in particular (Article 457).

Competence to try the case is determined by the maximum abstract penalty under Article 14 of the Criminal Procedure Act. Because neither Article 457 (a fine of six to twelve months) nor Article 456 —whose maximum penalty is six months to two years' imprisonment in its gravest form, imputing a serious offence— exceeds the five-year ceiling, both are tried by the Criminal Court (Juzgado de lo Penal). The Provincial Court (Audiencia Provincial), reserved for penalties above that threshold, does not hear these offences. The National High Court never intervenes: these are not offences assigned to that body. Settling the legal characterisation early matters, because both the trial court and the procedural track depend on it.

The Article 456.2 prerequisite: why prosecution cannot yet begin

False accusation under Article 456 carries a procedural feature that sets it apart from almost any other offence: proceedings cannot be brought against the person who reported or accused until there is a final judgment, or a final order of dismissal or shelving, issued by the judge or court that heard the imputed offence. This is a prerequisite of prosecutability. Until the original proceedings have been definitively closed, the Article 456 case cannot be opened: the law requires waiting until it is judicially certain that the earlier imputation lacked any basis.

This requirement does not apply to simulation under Article 457, because there no act is attributed to any person and there is therefore no prior case against an accused on which prosecution depends. The practical consequence matters for the defence: if someone is investigated for false accusation before the underlying matter has ended with a final decision, that very procedural defect can be invoked so that the case does not advance until the statutory condition has been satisfied.

Evidence and the subjective element: intent and reckless disregard for the truth

Neither Article 456 nor Article 457 punishes simple error or a report that ultimately fails. False accusation and report requires the imputation to be made with knowledge of its falsity or with reckless disregard for the truth; in other words, intent. It is not enough that the reported facts went unproven: a case ending in acquittal or shelving does not automatically turn the earlier report into a crime, because reporting what one believes to be true, even if it later cannot be proven, is a citizen's right.

The burden of proving that subjective element falls on the prosecution, and much of the defence is decided there. The consistency of the initial account is examined, along with the presence or absence of animosity, the objective data the reporter knew, and the plausibility of their version. In simulation under Article 457, intent attaches to feigning being responsible for or the victim of a non-existent offence, or reporting one that never occurred, while aware that unnecessary procedural action is being triggered. Showing that the reporter acted in good faith, even if mistaken, is usually the soundest line against both offences.

Legal excuses and ways to close the case: retraction, relatives, plea agreement and reparation

The Code itself provides exits. Article 462 establishes an absolutory excuse for the false witness who retracts in time, within the framework of the falsehoods of the same title; where the conduct unfolded as testimony given within proceedings, that timely retraction may be relevant. Article 454, in turn, contains the relatives' excuse, which exempts from punishment in certain forms of concealment those acting in respect of a spouse or very close relations, a factor to weigh according to how the specific conduct was configured.

As for prescription, it is governed by Article 131 of the Criminal Code according to the maximum abstract penalty, with no intermediate three-year band: where the maximum does not exceed five years, the offence prescribes after five; if it exceeds five and does not pass ten, it prescribes after ten. Simulation under Article 457, sanctioned only with a fine, and the forms of Article 456 that do not surpass that threshold fall within the five-year period. In addition, repairing the harm and a well-negotiated plea agreement can mitigate the criminal response and shorten the course of the proceedings, always assessing the specific case.