Criminal Lawyers in Instrumental Complaints

False accusation typified in Art. 456 CP and simulation of crime of Art. 457 CP are the two criminal figures sanctioning the undue and mendacious use of the criminal procedural machinery with knowledge of its falsity. False accusation proper requires that a specific and determined person be imputed with the commission of an apparently criminal act, before judicial or police officer, with knowledge of its falsity or reckless contempt for the truth. Simulation of crime, in contrast, consists of simulating before judicial or police officer one's own or others' commission of a criminal act or one's own condition of victim without imputation to a specific person. The protected legal interest is double: the administration of justice and, mediately, the honour and freedom of the falsely accused. Supreme Court case-law demands evidentiary rigor for conviction, given the risk of inhibiting legitimate complaints.

The phenomenon of instrumental complaints has acquired special relevance in the field of gender and domestic violence, where the urgent criminal procedure (Organic Law 1/2004) and the system of automatic precautionary measures (protection order of Art. 544 ter LECrim) may be used spuriously to obtain advantages in family proceedings: attribution of exclusive use of the home, precautionary suspension of visitation regime, provisional custody of children, high maintenance pensions. Supreme Court and Provincial Court doctrine have identified suspicious objective indicia: temporal coincidence between the complaint and the start of divorce or custody proceedings, absence of prior complaints despite allegation of prolonged violence, substantial internal contradictions of the account, absence of correlative physical or forensic signs, contemporary digital communications inconsistent with the complainant's version, and immediate exploitation of precautionary measures to fix the position in the civil litigation.

The penalties are significant. False accusation under Art. 456 CP is graduated by the entity of the falsely imputed offence: 6 months to 2 years prison and 12 to 24 months' fine when serious offence is imputed; 12 to 24 months' fine for less serious offences; and 3 to 6 months' fine for minor offences. Simulation of crime under Art. 457 CP carries 6 to 12 months' fine. Civil liability ex delicto includes moral damages caused to the falsely accused (especially substantial when there has been detention, provisional imprisonment, public exposure or job loss), legal defence expenses and, where appropriate, compensation for the affectation of parental rights if the precautionary measures entailed suspension of the visitation regime or loss of custody. Concurrence with perjury of Art. 458 CP, when the complainant lies in court ratifying the complaint, configures real concurrence with additional penalties (6 months to 2 years prison, or 1 to 3 years when given against a defendant in criminal proceedings).

The procedural strategy of defence against an instrumental complaint is built on four consolidated axes. First, the investigation of the spurious motive: documentation of coincidence with divorce proceedings, WhatsApp messages or emails evidencing instrumental planning, witness statements who heard prior threats or know the context. Second, forensic digital evidence: expert dump of phones, recovery of deleted conversations, geolocation analysis through telephony data or iCloud/Google Timeline, contrast with the complaint's affirmations to prove temporal or material inconsistencies. Third, the preservation of the presumption of innocence through specialised technical attention from the first lawyer assistance at the police station: absence of statement until strategic analysis, immediate collection of exculpatory evidence, reasoned opposition to disproportionate precautionary measures. Fourth, the subsequent complaint after acquittal: once the acquittal is final, exercise of Art. 456 CP through false accusation complaint with full claim of civil liability.

In current forensic practice, the Spanish judicial system moves towards greater recognition of the phenomenon of instrumental complaints without renouncing the principle of comprehensive protection of the real victim. Organic Law 1/2025 on Justice Service Efficiency, Organic Law 1/2004 on Comprehensive Protection Measures against Gender Violence, Organic Law 10/2022 on comprehensive guarantee of sexual freedom and Organic Law 8/2021 on comprehensive protection of children against violence configure a robust normative framework demanding balance between effective protection and procedural guarantees of the investigated. Constitutional doctrine on the presumption of innocence and consolidated Supreme Court case-law on the assessment of the victim's statement as sole evidence impose strict criteria: subjective credibility, persistence in incrimination and peripheral corroboration. At Alonso Sala, with 15+ years' experience, we undertake the integral technical defence of those suffering instrumental complaints, articulating coordinated criminal and civil-family procedural strategies and, after acquittal, the honour-reparatory complaint through prosecution of the false accusation.