Statute of limitations

The vast majority of crimes cease to be prosecutable once a certain amount of time has elapsed since they were committed. This is what is legally known as the statute of limitations. This is a topic that is often in the news and which we would like to discuss in depth here.

Definition of statute of limitations

The statute of limitations is the extinction of the criminal liability that a subject may have as a consequence of having carried out an action that, according to the stipulations of the Criminal Code, was classified as a criminal offence.

Many people do not understand why a crime can be time-barred after a certain amount of time has elapsed. However, this is directly related to inescapable rights and principles within the Spanish Constitution.

Firstly, we are all subject to the principle of legal certainty, which is enshrined in Article 9.3 of the Spanish Constitution. But, in addition, this legal text also states that we must have a judicial process without undue delays in time.

When do crimes become time-barred?

In order to understand when offences are time-barred, we must bear in mind that the period begins to run from the moment the criminal action is committed. However, it is common knowledge that there are punishable offences that are carried out on a permanent or habitual basis. In this case, the time limit will start to run from the date of the last punishable act, from the end of the illegal situation or from the cessation of the conduct that gave rise to the situation.

The statute of limitations for minor offences

A misdemeanour is understood to be any criminal offence for which the maximum term of imprisonment is 5 years. This is the time that must elapse between the commission of the offence and the statute of limitations. This is the case except in the offences of libel and slander, which are subject to the statute of limitations in only 1 year.

The statute of limitations for serious offences

In this case, the legislation in force is much broader than with regard to the statute of limitations for minor offences and specifies that:

• The statute of limitations shall be 10 years for all offences for which the maximum term of imprisonment and/or disqualification is between 5 and 10 years.
• The statute of limitations shall be 15 years for all offences for which the maximum term of imprisonment and/or disqualification is between 10 and 15 years.
• The statute of limitations shall expire after 20 years for all offences for which the maximum term of imprisonment and/or disqualification is between 15 and 20 years.

Are there crimes for which there is no statute of limitations?

Yes, there are crimes that have a special consideration within the Spanish legal system and that, therefore, do not have a statute of limitations under any circumstances. Specifically, these are:
Genocide and crimes against humanity.
Crimes committed against property and persons in a situation of protection during armed conflicts.
Terrorism, provided that the punishable act involved the death of at least one person.

Other special cases

It may happen that the offence in question is committed against a person who is a minor. In this case, and with special reference to crimes of injury, non-consensual abortion, torture, trafficking in human beings and crimes against privacy, sexual freedom, the right to one's own image, moral integrity and freedom in general, the limitation period need not begin at the time when the punishable action was committed or when it ceased if it was a continuous act.

In this type of situation, the legislation establishes that the limitation period should start from the day on which the victim reaches the age of majority. However, if that person died as a consequence of that offence or for any other reason, it will start from the date on which the death occurred.

What are the grounds for interruption of the limitation period?

The law is very clear on this point. Specifically, in order for the limitation period of the criminal action to be temporarily or definitively interrupted, it is a sine qua non requirement that proceedings be brought against the person who committed the offence.

But how can such a directed prosecution that interrupts the statute of limitations period be initiated? There are two ways:

• Filing of a complaint with a competent judicial body: this must attribute to a subject the participation in an act constituting an offence. In this case, the interruption will be temporary in the first instance (6 months). This period will start to run from the date on which the complaint was lodged. In order for it to continue, it must not be dismissed and give rise to the commencement of the oral phase.
• Issuance of a reasoned judicial decision: this must determine that there are indications that a subject has committed an offence. This can be done either at the time the case is initiated or at a later stage.

Now it is time to ask ourselves another question: what happens if the 6 months from the filing of the complaint elapse without it being accepted for processing or if the subject is acquitted even though he has actually committed the crime? The statute of limitations will start to run again. In fact, in the case of the filing of the complaint, it will be applied retroactively and those 6 months will continue to count towards the statute of limitations of the punishable action.

Is there a statute of limitations on criminal records?

No, but this does not mean that they cannot be expunged. The reason why we give a negative answer is purely semantic. A criminal record cannot be subject to the statute of limitations because, for it to exist, the person who has it must have been convicted of an offence. However, for a crime to be subject to the statute of limitations, it must not even have been tried during the period from the time it was committed until the maximum time of conviction provided for in the Criminal Code has passed.

Now that you have an answer to the question of whether a criminal record is subject to the statute of limitations, we can tell you that, in order for it to be cancelled and disappear from the judicial record, it is necessary that the subject has not committed a crime for a certain amount of time since the completion of the sentence imposed:

• Minor offences: 6 months.
• Offences punishable by up to 12 months: 2 years.
• Offences punishable by up to 3 years that do not derive from imprudence: 3 years.
• Offences with less serious penalties of 3 years or more: 5 years.
• Serious offences: 10 years

In case the subject re-offends during the period necessary for the expungement of his criminal record, the account will be interrupted and resumed again when there is the corresponding court sentence.

Conclusions on the statute of limitations for punishable offences

In short, the vast majority of offences covered by the Criminal Code in force in Spain may be subject to a statute of limitations. In this sense, the amount of time corresponding to the highest penalty that could be imposed on the subject in the event of being tried is fixed. If this time passes without the initiation of legal proceedings against him, he will be free of any responsibility for the act.