Withdraw a complaint Can a complaint be withdrawn? How?

As a general rule, a complaint cannot be withdrawn, except in the case of private offences such as defamation and slander. In the case of public or semi-public offences, such as theft or fraud, even if you decide not to proceed with the complaint, the Public Prosecutor's Office will continue with the proceedings. In this article, as expert criminal lawyers, we explain all the details.

Can a complaint be withdrawn?

No, as a general rule, it cannot. It is common for a conflict to arise, for example, due to threats made by a neighbour within a residential community, for another neighbour to report the matter and, once the situation has calmed down, for the complainant to want to withdraw the complaint.

As we mentioned, a complaint generally cannot be withdrawn, but there are exceptional cases involving private offences, such as defamation and slander. What can be done is to waive the right to continue with private criminal proceedings, although the Public Prosecutor's Office may continue with the prosecution.

What happens after filing a complaint?

The reason why a complaint cannot be withdrawn once it has been filed is that, when you file a complaint, you inform the State that an act which could constitute a criminal offence has taken place. The justice system must continue with the proceedings, even if the complainant has changed their mind. It should be borne in mind that virtually all offences regulated under the Criminal Code are public or semi-public and can be prosecuted ex officio, including, for example, gender-based violence offences, theft and homicide.

Therefore, what happens after filing a complaint is that the entire legal process is set in motion and may ultimately result in a trial. However, if neither the complainant nor the accused appears, whether due to an out-of-court settlement or simply because the complainant has decided not to proceed, the judge may be obliged to issue an acquittal due to insufficient evidence. Nevertheless, the proceedings themselves are not automatically brought to an end.

How can a complaint be withdrawn? Discontinuing criminal proceedings

We have already seen that a complaint cannot be withdrawn once it has been filed unless it concerns a private offence. What you can do is waive the right to pursue private criminal proceedings and state your intention not to continue. This often results in the Public Prosecutor's Office deciding to close the case if it considers that there is insufficient basis to continue with the proceedings. This situation is particularly common when there is no other evidence beyond the victim's testimony.

Consequences of withdrawing a complaint

We reiterate that, as a general rule, a complaint cannot be withdrawn, although it is possible to discontinue private criminal proceedings. However, doing so can have several consequences:

• Once the proceedings have been closed or an acquittal has been issued due to insufficient evidence for this reason
• There is no right of appeal or possibility of filing another complaint concerning the same events.
• There are situations in which the complainant is required to give evidence as a witness because they are not entitled to rely on an exemption provided for by law (as may be the case with spouses, ascendants, descendants, etc.). Failing to do so, refusing to testify or giving evidence that differs from the account initially provided may result in charges for disobeying a judicial authority or giving false testimony.

What is the time limit for withdrawing a complaint?

There is no specific time limit for withdrawing a complaint, except in cases involving privately prosecuted offences. In these cases, the competent court sends a notification to the complainant requesting that they confirm the complaint. This usually takes approximately two months. If the complaint is not confirmed, the proceedings are discontinued.

Withdrawing a complaint for domestic abuse

Gender-based violence is undoubtedly one of the most serious social problems of recent decades. For this reason, although withdrawing a complaint for domestic abuse is not possible, there can be particular difficulties in continuing with proceedings when the victim decides not to pursue private criminal action.

In these cases, the complaint is made against the victim's partner, who in many cases is also the father of the victim's children. As a result, continuing with the proceedings can be particularly difficult emotionally. Fear of reprisals and of causing harm to the partner may lead the victim to feel guilty and decide not to continue with the proceedings. Furthermore, when there is no medical report documenting injuries or similar evidence, it can be extremely difficult for the Public Prosecutor's Office or the judge to determine how to continue with the proceedings without the woman's testimony. It is important to make the victim aware that withdrawing a complaint for assault is not advisable, as there is a risk that the events may occur again.

In short, although a complaint cannot be withdrawn except in cases involving privately prosecuted offences, it may be possible to bring about the closure of the case or an acquittal due to insufficient evidence by waiving private criminal action. However, this can have very harmful consequences for the victim. Therefore, in order to understand how to withdraw a complaint and carefully assess the steps that should be taken, it is essential to seek advice from a specialist criminal lawyer.

At G. Elías y Muñoz Abogados, we have a team of criminal lawyers who will defend your interests in person in Madrid and anywhere else in Spain through a video consultation with an online lawyer.