Common Legal Defences in Spain following an Accusation of Criminal Behaviour

When accused of a crime in Spain, you will face the intricacies of Spanish law and the legal system. When accused of a crime, the initial issue to deal with is your defence. This may be a clear-cut as far as you are concerned; however, you will need to clarify the defence you can use and how it will be regarded in a Spanish court of law. When facing legal proceedings in Spain, you are strongly advised to instruct English-speaking Spanish criminal defence lawyers who understand the language and have experience solving cases similar to yours, as soon as possible.

This article will define the main legal defences in Spain, such as self-defence and identify the key principles that Spanish lawyers adhere to. We will also explore the rights of the accused during Spanish criminal proceedings and how our highly experienced team of criminal defence lawyers at Giambrone & Partners can help.

Main Types of Legal Defence in Spanish Criminal Law

Spanish criminal law recognises several types of legal defence that may either fully exonerate an individual accused of criminal activity or mitigate the severity of the sentence. These defences fall into categories similar to those in other European jurisdictions and can be applied in a manner consistent with the Spanish Penal Code (Código Penal).

Some of the most common defences include:

• Self-defence (legítima defensa): Where the accused acts to protect themselves, another person or certain property.
• State of necessity (estado de necesidad): Where unlawful conduct was the only way to avert greater harm.
• Mental incapacity or diminished responsibility: A defence based on mental illness, cognitive impairment, or other conditions that prevented the accused from understanding or controlling their actions.
• Duress or irresistible force: When an individual commits an offence under immediate threat of serious harm.
• Error or mistake of fact: If the accused acted under a genuine, reasonable mistake that negated criminal intent.

In addition to these “complete” defences, Spanish courts may also consider “attenuating circumstances” (such as voluntary confession, reparation of damage, or lack of prior criminal record), which can reduce the sentence even if guilt is established. Instructing an English-speaking Spanish criminal defence lawyer to assist and guide you in your defence is crucial. Not only do they understand the legal landscape, there are no communication barriers.

How to manage Self-Defence in Spain?

Self-defence is one of the most frequently used legal defences in Spanish criminal law. However, its scope and limits are carefully defined by the Penal Code.

For self-defence to apply, three conditions must be met:

• An unlawful aggression: There must be a genuine attack or imminent threat of attack
• Necessity of the defensive act: The accused’s actions must have been strictly necessary to repel the aggression
• Reasonable proportionality: The force used in defence must not have been grossly disproportionate to the threat faced

Spanish law allows for self-defence not only in the protection of oneself but also in defence of others and in certain circumstances, of property. However, courts take a careful approach to proportionality. For example, the use of lethal force in response to a minor assault is unlikely to succeed as a defence.

Spanish criminal lawyers operate within a framework that combines law with procedural safeguards several principles are central to their approach:

• Presumption of innocence: Every accused person is innocent until proven guilty. The burden of proof lies entirely with the prosecution.
• Strict legality: Spanish law requires lawyers and judges to adhere closely to the provisions of the Penal Code, reducing reliance on judicial interpretation.
• Adversarial and inquisitorial elements: Unlike the UK system, Spain incorporates inquisitorial procedures, meaning the investigating judge plays a significant role in gathering and presenting evidence. Lawyers must therefore be skilled both in procedural strategy and in courtroom advocacy.
• Human rights compliance: Spain is bound by the European Convention on Human Rights, ensuring that defence lawyers pay close attention to issues such as the right to a fair trial, the prohibition of torture and the right to legal assistance.
• Emphasis on mitigation: Where a full defence is not possible, Spanish lawyers often focus on identifying mitigating factors that may reduce the sentence.

For British nationals, this means that the style of defence will feel unfamiliar, as British barristers employ cross-examination and jury persuasion, Spanish lawyers are typically more involved in procedural stages of the case, ensuring due process is followed from the outset. If you find yourself involved in Spanish criminal proceedings, you should instruct Spanish criminal defence lawyers who will guide you. Giambrone & Partners has English-speaking Spanish criminal lawyers based in the UK, ensuring smooth communication throughout the entire procedure

The Rights of a Defendant during Criminal Proceedings in Spain

Defendants in Spain enjoy a number of rights that are considered essential to a fair trial. Some of the most significant include:

• Right to legal assistance: An accused person has the right to be represented by a lawyer from the moment of arrest. If they cannot afford one, legal aid can be provided.
• Right to interpretation and translation: Foreign nationals are entitled to interpretation services to ensure they fully understand the proceedings.
• Right to remain silent: As in the UK, defendants are not obliged to answer police or judicial questions.
• Right to be informed of charges: Defendants must be promptly informed of the accusations against them in a language they understand.
• Right to a fair and public hearing: Trials must be conducted transparently. Spanish proceedings can feel more formal and judge-led compared to trials in England and Wales.
• Right to appeal: Convictions can be appealed at higher courts, ultimately including to the Spanish Supreme Court (Tribunal Supremo) or, if based on human rights grounds, the European Court of Human Rights. For British nationals, these rights provide important safeguards, but practical barriers, particularly language and procedural unfamiliarity, make professional legal assistance indispensable. In Spain, the legal profession is strictly regulated to maintain high standards of competence and ethics.
• The General Council of Spanish Lawyers (Consejo General de la Abogacía Española) serves as the overarching regulatory authority.
• Local Bar Associations (Colegios de Abogados) supervise lawyers in specific regions. Membership of a local Bar Association is mandatory to enable lawyers to practice.
• Judicial oversight ensures that lawyers follow procedural and ethical rules during criminal proceedings.

Many British nationals turn to established international firms with a track record in cross-border criminal defence. Spanish criminal defence lawyers at Giambrone & Partners have considerable experience and can assist individuals facing criminal proceedings in Spain, which, for many, can be intimidating, especially when faced with language barriers and unfamiliar legal customs. For British nationals, getting legal representation from lawyers who understand both Spanish and British legal cultures is essential.

Giambrone & Partners has a strong presence in Spain and extensive experience in assisting British nationals with a range of legal matters. Our criminal lawyers combine in-depth knowledge of the Spanish Penal Code with a sensitivity to the expectations and concerns of our British clients.

If you would like to know more about how Giambrone & Partners can assist you, please click here.