Challenging/Contesting Witnesses (the so called "Tacha de Testigos") in Spanish Law
Updated: Aug 3, 2021
The Challenge of a Witness or the so called in Spanish "Tacha" is basically a warning made known to the Judge about the existence of facts that accompany the witness and that may undermine her/his impartiality. It should never be understood as a mechanism to prevent a witness from testifying though.
This has been stated on many occasions by the Supreme Court when it considers that the existence of a challenging cause is not necessarily associated with the lack of veracity of the witness, but rather that it is a procedural instrument, by which, based on objective data, it informs the Judge so that, according to her/his criteria, she/he may dismiss the statement, partially or in its entirety.
The causes that can be used as a witness's challenging are included as numerus clausus in article 377 of the Civil Procedure Law, which in the absence of other specific regulations in processes of another order, will be applied as a supplementary one. In this sense, in contentious-administrative proceedings the contesting of witnesses is prohibited.
These are the witnesses in whom any of the following causes concur could be challenged:
Those being or having been a spouse or relative by consanguinity or affinity within the fourth degree, that is, even the first cousins, both of the person proposing it and their lawyer or solicitor; or be linked to any of them by adoption, guardianship or bond of a similar nature.
Be the witness, at the time of giving her/his testimony, dependent on the person who proposed it, his lawyer or procurator, be at her/his service, or maintain with these a relationship that arises from a society or common interest.
The witness that has a direct or indirect interest in the matter debated in the process for which her/his statement is required.
Being a close friend or enemy of any of the parties to the process, her/his lawyer or procurator.
Those having been previously convicted of perjury.