Criminal Lawyers in Retraction

Retraction by the witness or expert who has testified falsely is one of the few figures in the Spanish Criminal Code operating as a specific cause of penalty mitigation with automatic and graduated effect. Art. 462 CP provides that the witness or expert who retracts in time, stating the truth before judgment is rendered in the procedure where the false testimony was given, shall be exempt from penalty —or, according to majority case-law, may receive the lower-degree penalty—. The protected legal interest is the administration of justice, and the legislator positively values rectification so the court may rule on truthful data. Consolidated case-law demands three cumulative requirements: temporal opportunity, truthfulness of the rectification and spontaneity.

The temporal opportunity requirement demands that retraction take place before the trial court renders first-instance judgment in the proceedings where the lie was told. Once judgment is rendered, subsequent rectification loses the specific mitigating effect of Art. 462 CP, although it may operate as generic mitigation under Art. 21.4 (confession) or 21.5 (reparation) if their conditions concur. The truthfulness requirement demands that what is stated in the retraction be the actual historical truth; a false or partially mendacious retraction does not activate mitigation. The spontaneity requirement, the most jurisprudentially debated, excludes retractions forced by the imminence of discovery or by confrontation with overwhelming documentary evidence; the Supreme Court assesses case by case whether retraction stems from internal repentance or merely from factual impossibility of maintaining the lie.

The practical effects of timely retraction are substantial. In aggravated perjury under Art. 458.2 CP (against the defendant in criminal proceedings), the penalty drops from 1-3 years' prison and 6-12 months' fine to 6 months to 1 year prison and 3 to 6 months' fine. In the basic offence under Art. 458.1, the penalty drops from 6 months-2 years to 3-6 months' prison or fine. Retraction prevents activation of the mirror penalty in Art. 458.2 second paragraph if the witness rectifies before the unjust conviction becomes final, since avoiding the unjust conviction eliminates the aggravating premise. Moreover, timely rectification reduces civil liability by lowering the patrimonial and moral damages actually caused.

The defense strategy for a potential retraction rests on four technical axes. First, the prior risk-benefit analysis: retraction entails recognition of the original false testimony, facilitating conviction for the attenuated offence; counsel must assess whether evidence of the lie is sufficient and whether the attenuated penalty is preferable to a possible acquittal on reasonable doubt. Second, procedural formalisation: retraction may be made orally at trial (most recommended for its spontaneity effect) or by written submission to the court before judgment, ensuring reliable dating. Third, concurrence with other mitigators: Art. 462 CP retraction may accumulate with Art. 21.4 confession, Art. 21.5 reparation and even Art. 21.6 undue delay, adding sentence-reducing effects. Fourth, protection against reprisals: if the witness retracts after being induced by third parties, they may request the protective measures for threatened witnesses (Organic Law 19/1994).

In current forensic practice, effective retractions are relatively rare because they demand a delicate combination of sincere repentance, early legal advice and willingness to face the consequences of recognition. Organic Law 1/2025 on Justice Service Efficiency has consolidated mechanisms for full recording and digital access to the file that allow the witness to assess the solidity of the evidence against them before deciding to rectify. Recent Supreme Court case-law has clarified that spontaneity must be assessed by material rather than merely formal criteria, and that legal assistance to articulate the retraction does not deprive it of spontaneous character. At Alonso Sala, we advise each retraction decision with an exhaustive technical-procedural analysis: review of available evidence, assessment of alternative defence viability (lack of intent, material irrelevance, Art. 416 LECrim dispensation), preparation of the rectification on the most favourable terms and articulation of the defence for the final phase of proceedings, with over 15 years' experience in offences against the administration of justice.