If you have been arrested in Spain for carrying out an assault on another person, it can be very useful to understand how the Criminal Justice system in Spain works in general, and the penalties for assault in particular. Let's start at the beginning.
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1. What is assault in Spanish law?
Under the Spanish Penal Code, the offence of assault is committed when anyone causes to another an injury that impairs their bodily integrity or their physical or mental health, provided that the injury objectively requires for recovery, in addition to initial medical assistance, MEDICAL OR SURGICAL TREATMENT. If the injury requires only initial medical assistance but DOES NOT NEED medical or surgical treatment, it is considered as a misdemeanour.
In this case the offence is less severe and the penalty is also less severe. In order for the complaint to be submitted, the victim must go to a medical center as soon as possible and obtain a certificate of medical assistance, which must be passed to the national police (Policía Nacional) or civil guard (Guardia Civil) at the time the complaint is filed.
Even when the injury is not serious, and it is only a bruise or a scratch or even when there were no physical signs at all, in any case, it is compulsory to report it with the complaint. Even in the case that the certificate of medical assistance states that the victim complains of pain to the doctor but there are no physical signs of injuries.
A victim may file a complaint without the assistance of a lawyer, although it is not recommended to do so. However, the accused or alleged aggressor has the right and the obligation to always be assisted by a lawyer, both in the proceedings before the police and those that take place in the Court.
It is important that the victim of an assault offence formulates the report correctly, providing all the necessary and essential data in an appropriate way. In this sense, it should be pointed out that, although it is not compulsory according to the law, it is highly recommended to be assisted by a lawyer to file the complaint, since mistakes made when filing the complaint later cannot be remedied and will impact the entire procedure.
This is important, among other reasons, because normally in the legal proceedings that follow in an assault offence, both parties appear as complainants and defendants, as the existence of mutual attacks and injuries frequently takes place. In these cases, it is very difficult to successfully maintain the claim that one of the two parties acted in self-defence. In fact, without proper legal assistance from the beginning, it is almost impossible to defend in front of the Court that one acted in self-defence.
2. What penalties can be imposed on the person who commits an assault offence? Is the victim entitled to compensation?
Penalties for Assault in Spain - The penalty can be a fine or imprisonment and depends on the severity of the injury, the vulnerability of the victim (if the victim is a minor, disabled or elderly person, etc.) and the means used to cause the injury (if the aggressor used weapons or possesses a special skill such as being a karate black belt, for example).
In addition to the penalty imposed on the person who committed the crime, the victim has the right to be compensated (civil liability) for any damages that may have been caused.
The amount of this compensation will depend on the injuries that have occurred and the time required for healing or the consequences that have arisen. Civil liability also includes repairing the damage by paying the corresponding amount if glasses, mobile phones, clothing, etc. have been broken when the victim was injured.
The severity of the penalty (fine or imprisonment) depends on the type of medical assistance that the victim must receive to achieve healing. If the victim only has to go to the doctor once, it is considered a misdemeanour assault or DELITO LEVE DE LESIONES. and if the victim requires medical treatment, we will be facing a felony assault or DELITO DE LESIONES, with more severe penalties.
Therefore, it will be a felony assault if the injury requires medical treatment, that is when the victim has to go to the doctor more than once. For example, the victim is admitted to the hospital or has to undergo surgery or has to receive stitches or an arm or leg is in plaster or he/she is receiving physiotherapy treatment.
On the other hand it will be a misdemeanour, if the victim only goes to the doctor once for a first cure or has no apparent visible injury. To make the calculation of the fine, the economic capacity of the accused/aggressor will be taken into account, his/her income from work or from others.
The fine that can be imposed on an entrepreneur whose company has a profit of 10,000 euros per month is not the same as the one that can be imposed on a worker who only has a pay-cheque of € 1,000 per month. To determine the financial capacity of the accused, only the income, not the family or other charges of the person, are taken into account.
To make the calculation of compensation or civil liability to be paid to the victim, the severity of the injury, the days it has taken to return to full health (receive medical discharge) and the consequences that those injuries have left in the victim will be taken into account.
The forensic doctor (doctor from the court) makes a report after studying the medical documentation provided by the victim and the doctor provides a report with the basis for calculating compensation for the injuries based on tables that are set-out in law.
The misdemeanour assault (hitting or mistreating another without causing injury) is punishable by a fine of one to two months. For example, a slap, kick, or punch, which does not involve stitches, plaster, or hospital admission, etc. is punishable by a fine to be paid to the court of approximately 200 euros and the payment to the victim of compensation of approximately 150 euros.
The felony assault is punishable by imprisonment for a period of between three months to three years or a fine of six to twelve months. For example, if the victim receives 3 stitches on the lip, it could be punished with a fine of 1,000 euros and compensation of approximately 2,000 euros.
The SERIOUS ASSAULT OFFENCE or DELITO DE LESIONES AGRAVADO is punishable by prison terms of between two to five years, if dangerous weapons, objects or means are used, there is cruelty, the victim is under twelve years old or especially vulnerable or if the victim is or had been the wife or partner of the aggressor. It is punished with a prison term of between six to twelve years if the injury involves the loss or permanent incapacity of a major organ, impotence, sterility, serious deformity or serious somatic or mental illness.
Rarely, in practice will the aggressor be condemned to go to prison after pleading guilty for an assault offence. For example, in a real case, a person who, after giving a tug to steal a 75-year-old woman's purse, caused the woman to fall to the floor and break her hip, and she had to be admitted to the hospital, this aggressor was given a 2 year prison term.
Usually, in case of fights in which neither party is a vulnerable person, even if hospital admission or surgical interventions occur, the sentence will never be imprisonment. The sentence will normally be a fine that the aggressor should pay to the court and the victim will receive from the aggressor a compensation or civil liability. However, if the convicted person does not pay the fine or does not pay civil liability, he could go to prison.
3. Penalties for Assault in Spain: what if the injuries were caused by negligence?
If the injury is caused by recklessness, that is, unintentionally or by accident, the penalty is greatly reduced. In such cases there is no intention to injure, but the injuries are caused by a reckless act.
If it is a “serious imprudence”, the penalty can be imprisonment or a fine depending on the severity of the injuries produced. Also relevant here is the fact that should the accused leave Spain, they could be subject to an extradition warrant to have them brought back to Spain for trial.
If it is a “less serious recklessness”, the penalty will always be a fine. It is the Judge, upon examining the specific circumstances of the case before the Court, who will set the parameters to classify an imprudence as serious or less serious. Mild recklessness is not typified in the penal code.
4. Penalties for Assault in Spain: Domestic Violence Cases
While in English law, domestic violence cases are grouped together under one heading, in Spain there is a separate area dealing with 'Violencia de Genero' which pertains only to violence perpetrated by men against women, specifically when the victim of a physical assault is or has been a wife or girlfriend, even if they do not live together in the same house or have never lived together, the author will be punished with imprisonment of six months to one year or receive a community order for between thirty-one to eighty days.
However, if it is established that the aggressor routinely exercises violence against her, for example, that he has assaulted her on 2 different occasions in a year, the prison sentence will be from 6 months to 3 years. Bear in mind that a slap, push, or scratch may be considered as an assault.
The prison sentence may be higher if the injuries require more than one medical treatment (for example, stitches, surgery, broken bones, rehabilitative or physical therapy treatment). In these cases, the penalty can be up to 5 years in prison. If there are children, and the Judge or Court deems it appropriate, the aggressor can also be punished with a limitation on visitation rights to see his children or make decisions about the education or health of his children for up to five years.
In addition, in any case the Judge will impose a restraining order from the first moment of the complaint and until a sentence is passed and if the sentence finally condemns for a crime of gender violence, the restraining order will be extended. Depending on the circumstances, the restraining order can be extended, lasting between 4 months and 10 years.
It is a common belief, even among lawyers and legal professionals, that the aggressor has no possible defense and that it is even better that he acknowledge the facts and reach an agreement in court in order to obtain the lowest possible penalty. However, a lawyer who is specialized in this matter knows that each case has its own special characteristics and that the popular belief that the law is in favor of women and that is why men are always condemned is not true. It is not that simple.
Similarly, it is also not true that women have difficulty accrediting that she has ben assaulted and that real cases of violence against women go unpunished.
Actually, the truth is that the victim's testimony can only be sufficient proof if it meets certain requirements In any case, it is important to contact a lawyer from the beginning, before reporting, if you are the victim or before going to testify at the police station if you are the reported.
The events that may be the subject of a complaint for violence against women usually occur in private, without witnesses, so the statements of the parties are often the only evidence and in any case are the main evidence and the details that include those statements should be clearly outlined with the help of a lawyer experienced in this field.
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5. How should the victim act in a case of violence against women?
- Contact a solicitor to guide you during the process from the beginning, first of all to accompany you when reporting the assault to the police. The sooner the better.
- Go to the Health Services, before reporting to the police, in order to obtain the healing of possible wounds, and a diagnosis of the injuries suffered, even if they are of minor consideration (bruises or scratches). Take photos of the wounds.
In general, in medical centers, hospitals, etc., when they care of a victim of violence, they must transfer the admissions form section to the Court, being very important to note that the injuries are the consequence of an assault, and if it is possible to detail possible psychological damages, if any.
The medical staff will attend to you and heal your wounds, certify your ailments, even those that are not visible to the naked eye, and administer medications to prevent infections, unwanted pregnancies or infections if necessary. The hospital report should be taken to the police to be attached to the complaint.
- Don't modify your appearance. Do not take shower or wash your clothes. Do not alter the place of aggression. These are evidence.
- Stay calm. Understand that you are not alone. The Police and the Civil Guard are there to help and protect you. Do not stand silently or be tolerant of your attacker. Report the facts immediately. Your complaint strengthens your safety and prevents future attacks on yourself.
- Notify the nearest Police or Civil Guard by the phone and inform them that you are coming with your lawyer and then go personally accompanied by your lawyer to your nearest police department.
Before going, when you phone the police, ask them for an interpreter of your language to be present to express yourself better. It is your right, even if you speak Spanish, it has no cost and you can express yourself better. Ask them to let you know at what time the interpreter arrives so that you don't have to wait.
Submit your complaint always accompanied by a lawyer, to be able to correctly write the facts, since you will not be able to modify them later or else you will lose credibility. Provide the identity or description of your attacker and any data you consider of interest for the investigation. Your lawyer will help you to give the details the police needs.
At the police station, you will be informed about your rights as a victim of domestic violence and the associations and social services available in your area, to access possible help designed for you and even provide you with shelter for you and your children and whose location is secret so you do not have to go back to your house, nor do you have to see your aggressor again.
- Report every situation of sexual abuse or assault of which you are a victim as soon as it occurs. If you have reported assaults on other occasions, you should mention it.
- Remember that filing a complaint is a right and a duty of the victim in order to avoid further attacks.
6. How should the defendant act in cases of Domestic Violence in Spain?
- If you have had a discussion with your partner in which there has been mutual aggression and you have suffered injuries, even if they are of minor consideration (scratches, bruises, etc.), you should go to the nearest hospital, in order to obtain the healing of possible injuries, and a diagnosis of the injuries sustained. Take photos of the wounds.
- Don't modify your appearance. Do not take a shower or wash your clothes. Do not alter the place of aggression. These are evidence.
- Remain calm and call a lawyer to accompany you to the police and before going ask the police for an interpreter of your language to be present. It is your right, even if you speak Spanish, it has no cost and you can express yourself better. Ask the police to let you know at what time the interpreter arrives so that you don't have to wait for him.
- If the police arrest you and you have not had time to locate a lawyer, you should never speak to the police before having a private interview with you lawyer. It is your right. If the police ask you a question, you should only say that you have the right not to talk until your lawyer arrives and that you want to exercise your right. You must ask the police to call the lawyer of your choice or alternatively you can call a friend or relative in order that they can find an appropriate lawyer for you. In the absence of your own lawyer, the Police will call a duty lawyer, in which case, you should not talk with the police, you have the right not to make any statement.
