The offence of perjury, regulated by Article 458.1 of the Spanish Criminal Code, penalises witnesses who lie in judicial proceedings, including cases before international tribunals. However, the question arises as to whether this offence applies to witnesses who lie during arbitral proceedings.
Difference between judicial proceedings and arbitral proceedings
Current legislation does not explicitly mention the inclusion of arbitral proceedings in the offence of perjury. Case law has made it clear that the concept of a “judicial proceeding” cannot be equated to that of an “arbitral proceeding”. In this regard, the Provincial Court of Guipúzcoa (AAP Guipúzcoa 84/2021) stated that, in line with the principle of criminal legality, arbitral proceedings do not share the same legal nature as judicial proceedings, and therefore cannot be subject to Article 458.1 of the Criminal Code. If the legislator had intended to include arbitral proceedings under this criminal provision, it would have explicitly stated so in the law.
The interpretation of the Constitutional Court
Even the Constitutional Court, in STC 142/1999, confirmed that extending the offence of perjury to arbitral proceedings would contravene the principle of criminal legality and undermine legal certainty. This high court clarified that any attempt to apply criminal law to arbitration would be an expansive interpretation of the law, negatively impacting fundamental rights.
Conclusion: The non-existence of the offence of perjury in arbitration
In light of constitutional doctrine and existing case law, it can be concluded that the offence of perjury cannot be applied in the context of an arbitral proceeding. The principle of criminal legality prevents any expansive interpretation that equates arbitration with judicial proceedings, as both have different natures and purposes. Equating the two would violate the principles of precision and criminal legality, which are fundamental in Criminal Law.
As a result, witnesses who lie in an arbitration cannot be penalised for perjury under current law. This approach ensures legal certainty and upholds the integrity of criminal law application, respecting the boundaries set by the Constitution and case law.
