The criminal offence of false testimony, defined at article 458.1 of the Criminal Code, punishes witnesses who do not tell the truth in the evidence they give in judicial proceedings or before International Courts. However, does the offence of false testimony arise in the case of witnesses who lie in arbitration proceedings?

While the said article of the Criminal Code is silent as to the possibility of this offence being committed by witnesses who are untruthful in arbitration proceedings, the fact is that the scarce caselaw that has examined this question points out that the reference made by article 458.1 of the Criminal Code to ‘judicial proceedings’ cannot be extended, for the purposes of the criminal law, to arbitration proceedings, and as such conduct of this kind is deemed to fall beyond the scope of the legislation.

In this regard, the Judgment issued by Section One of the Provincial Court of Guipuzcoa (84/2021, FD 3) dated 5 February 2021 addressed the commission of an alleged offence of false testimony by witnesses who gave evidence in arbitration proceedings, where the said evidence was of the essence to the award that was finally given. Specifically, the Provincial Court of Guipuzcoa ruled that: (i) the principle of criminal liability (set forth at article 25.1 of our constitution and article 4.1 of the Criminal Code) precludes any read-across from ‘judicial proceedings’ to ‘arbitration proceedings’, in so far as judicial proceedings have a constitutional and organic position that is notably different from that of arbitration proceedings; (ii) had the legislator intended for such proceedings to be considered equivalent for the purposes of article 458.1 of the Criminal Code, the said article would have been worded accordingly.

It should not be forgotten that in the last century, the Constitutional Court dispelled any possible doubt by establishing that the application of the offence of false testimony to arbitration proceedings is a clear example of the rules of the criminal law being extended in bad faith, contrary to the principles of legal certainty surrounding both the existence and the definition of criminal offences (Judgment of the Constitutional Court 142/1999 of 22 July, FD 4).

As such, we may conclude that in our legal system, the offence of false testimony does not apply to arbitration proceedings.

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