By Linda C J Turner, Therapist & Advocate
Spain has a civil law system, meaning that while the police do not act as prosecutors themselves, they play a crucial role in the initiation and support of criminal proceedings. The official prosecutor is the Ministerio Fiscal (Public Prosecutor’s Office), but the police can and do initiate the process that leads to prosecution.
🔍 1. Reporting and Investigating the Crime
The first step usually begins with a report (denuncia):
- A victim or witness can file a report.
- The police can also file a report themselves if they witness or gather credible evidence of a crime, including breaches of restraining orders, assault, or harassment.
The police then conduct an initial investigation, including:
- Gathering evidence
- Interviewing witnesses
- Taking statements
- Compiling documentation for the court
🧾 2. Submitting the Case to the Prosecutor
Once the police gather evidence, they submit the case to the Public Prosecutor (Fiscalía) or directly to a Judge of Instruction (Juez de Instrucción) who oversees pre-trial proceedings.
In urgent or serious cases (e.g., domestic violence or restraining order violations), this can happen within 24 hours.
👩⚖️ 3. The Prosecutor Takes Over
The Public Prosecutor then decides whether to:
- File formal charges (acusación)
- Request precautionary measures (such as an extended restraining order or remand in custody)
- Drop the case if evidence is insufficient
The court may also act if the police report alone contains enough evidence of a criminal act.
🚨 When the Police Themselves Report the Crime
In some cases, the police act as the complainant, especially when:
- The victim is too afraid or unwilling to file a complaint (common in domestic violence cases)
- The crime is a matter of public safety or involves a breach of public order
- The accused has violated a previous sentence, such as a restraining order (orden de alejamiento)
This is part of Spain’s strong legal framework for protecting victims, particularly in gender-based violence cases. In such cases:
- The police can directly notify the court of the violation
- The court must act, even if the victim doesn’t push for it
🔥 Example: Breaching a Restraining Order
Let’s say someone breaks a restraining order. The Guardia Civil may:
- File a police report (atestado)
- Collect communications, photos, GPS data, CCTV footage, or witness statements
- Submit that to the court and the Public Prosecutor
- The Prosecutor can immediately request a hearing, and the court may issue a new arrest warrant or initiate new charges
📚 Legal Backing
Relevant articles in the Spanish Penal Code:
- Article 468: Breach of a restraining order
- Article 173: Domestic abuse and habitual violence
- Ley Orgánica 1/2004: Comprehensive Protection Measures Against Gender Violence
🧠 Why This Matters Psychologically
For survivors of abuse, it’s empowering to know:
- The legal system doesn’t solely rely on the victim to push for justice
- The police and prosecutor can and will act independently if evidence exists
- You’re not alone in enforcing the law or seeking protection
This kind of structure reduces the burden of proof and pursuit from the victim and shifts the accountability onto the perpetrator and the state.
✅ In Summary
| Action | Can the Police Do It? |
|---|---|
| Report a crime | ✅ Yes |
| Investigate and gather evidence | ✅ Yes |
| File charges in court | ❌ No (but they initiate the process) |
| Trigger prosecution | ✅ Yes (by submitting evidence to the Fiscalía) |
| Act independently of the victim | ✅ Especially in domestic violence, restraining order breaches |
— Linda C J Turner
Trauma Therapist | Neuroscience & Emotional Intelligence Practitioner | Advocate for Women’s Empowerment
