By Juana Navas Garcia,
Abogada at De Cotta McKenna y Santafé

Question:

Please could you shine some light on the term ‘denuncia’? I understand that it entails making a formal complaint against someone, but how is it done, what are the legal implications and what is the potential outcome?

Answer:

A denuncia is the formal term for advising the authorities of a situation or event that appears to have been a crime which has been witnessed by one or more persons. Everyone indeed has an obligation to make a report of a crime or a “denuncia” even if they are not themselves a victim. This obligation has certain exceptions and there are certain circumstances such as someone having suffered an injury where only the injured party may make the denuncia.

The denuncia can be made to the state security forces (namely the Guardia Civil, Policía Nacional or the Policía local in Spain) or directly to the Juzgado de Guardia (criminal court) in the locality of where the event took place. The best method for making a denuncia is to present it in writing and to then obtain a stamped copy of the statement. One must take into account that if you present the denuncia to the security forces and if they ultimately decide that a crime has occurred, they will send the matter to an appropriate Judge who has the power to continue the investigation and decide what steps need to be taken.

Once the denuncia has been submitted, if it is thought that the facts are relevant, the accused (el denunciado) must be made aware of this and must make a statement on the events in question. If he does not admit to the allegations, the investigation will still proceed to determine whether or not a crime has in actual fact been committed. With regard to this, it is important to clarify whether the victim of a crime is considered to be merely an aggrieved witness which is the case if he does not formally request to proceed with a private prosecution. If he does not proceed, then the Public Prosecutor will represent him in the matter, but should he wish to prosecute himself he would be able to play a more active role in the investigation and also the final hearing.

Once the investigation has been completed, the judge must make a decision on the matter. If he is of the opinion that there is not enough evidence to show that the event constituted a crime or the matter is merely a civil one, the matter will simply be filed and no prosecution will be pursued. If he thinks however that there is sufficient proof that an offence has been committed he will formally charge the perpetrator and issue an order for a further hearing, the scale of which will depend on the severity of the charges. Said proceedings will be heard either before the same court or a higher one, culminating in a ruling or sentence which in turn can be appealed before another superior court.

Juana Navas Garcia is a Lawyer at De Cotta McKenna y Santafé, a law firm specialising in dealing with all aspects of Spanish Law for English speaking clients. The Nerja office is at:

Calle Diputación 6, 2A
29780 Nerja

Tel: 952 52 70 14
Fax: 952 52 34 28