Gender violence complaint withdrawn or dismissed: what to do

Many women come to our office with the same question: “I want to drop the complaint. How do I do it?” Others, on the contrary, receive a dismissal order and feel that nobody believed them. And many men under investigation want to know whether a dismissal means it is all over. All three situations have a legal answer, and it is worth knowing it before making any decisions.

Why a gender violence complaint cannot be withdrawn

Offences committed within a relationship (abuse under art. 153 of the Criminal Code, CP; threats under art. 171.4; coercion under art. 172.2; habitual abuse under art. 173.2; causing injury, etc.) are public offences (delitos públicos). This means that once the authorities are aware of the facts, the Public Prosecutor (Ministerio Fiscal) is obliged to bring criminal proceedings, whether or not there is a private prosecution (acusación particular) (art. 105 of the Criminal Procedure Act, Ley de Enjuiciamiento Criminal, LECrim).

Furthermore, forgiveness by the injured party only extinguishes criminal liability for minor offences that can only be prosecuted at the request of the victim, or where the law expressly provides for it (art. 130.1.5 CP), and that is not the case for these offences. That is why going to court to say “I withdraw the complaint” does not bring the proceedings to an end.

What the victim can do is:

• Waive her role as private prosecutor, in other words, stop taking part in the proceedings with her own lawyer. The Prosecutor continues to prosecute.
• Invoke the exemption from testifying against her partner or ex-partner, if the requirements are met.
• Waive any compensation she may be entitled to.

The exemption under article 416 LECrim and its exceptions

Article 416 of the Criminal Procedure Act exempts the accused’s spouse or person in an equivalent relationship, among other relatives, from testifying against them. The judge must expressly inform the witness of this.

Following the reform introduced by Organic Law 8/2021, the exemption does not apply in the following cases:

1. Where the witness is the legal representative or de facto guardian of a victim who is a minor or a person with a disability in need of special protection.
2. Where the offence is serious, the witness is an adult and the victim is a minor or a person with a disability in need of special protection.
3. Where, because of their age or disability, the witness cannot understand the meaning of the exemption.
4. Where the witness is or has been a party to the proceedings as private prosecutor.
5. Where the witness has agreed to testify during the proceedings after being duly informed of their right not to do so.

The last two exceptions are the ones that most affect victims of gender violence: if at any point you joined the proceedings as private prosecutor, or you testified after being informed of your right not to, you will no longer be able to invoke the exemption later on.

If the victim does not testify, this does not always lead to dismissal. If there is other evidence (injury reports, witnesses, officers who saw what happened, messages or recordings), the case can go ahead. We explain this in the role of witnesses in gender violence cases.

What it means when a complaint is dismissed

“Dismissal” (archivo) is, technically, a stay of proceedings order (auto de sobreseimiento). The LECrim distinguishes between two types, with very different effects:

How to appeal a dismissal order

If you are the victim and you disagree with the dismissal, you have several options:

• Application for reconsideration (recurso de reforma) before the same court, within 3 days of notification (art. 211 LECrim).
• Appeal (recurso de apelación) to the Provincial Court (Audiencia Provincial), within 5 days (art. 766 LECrim). It can be filed directly, without first applying for reconsideration, or in the alternative.
• If you are not a party to the proceedings, the law allows you to appeal the dismissal within 20 days (art. 779.1 LECrim and the Victims of Crime Statute, Estatuto de la Víctima). The order is sent to you by email or post, and is deemed to have been served five days after it is sent.

A good appeal does not merely express disagreement: it points out which investigative steps were not taken (witnesses, medical reports, messages, forensic report) and why they are relevant. That is why it helps to prepare the evidence from the start, as we explain in our evidence guide.

How to reopen a dismissed case

A provisional dismissal can be set aside if new facts or evidence come to light: a witness who did not testify, recovered messages, a new incident confirming a pattern of habitual abuse. You must apply to the same court, providing that material, before the offence becomes time-barred. For example, abuse under article 153 CP, punishable by up to one year in prison, is a less serious offence that becomes time-barred after five years (art. 131 CP).

If the new facts are a subsequent assault, the usual course is to file a new complaint, which can be assessed together with the previous one.

What happens to protection measures and family proceedings

Criminal interim measures, such as a restraining order (orden de alejamiento), depend on the criminal proceedings. If the case is dismissed, they are normally lifted. The civil measures in a protection order (orden de protección) last 30 days, unless family proceedings are filed within that period, in which case they remain in force for a further 30 days from the filing until the civil judge confirms, modifies or revokes them (art. 544 ter.7 LECrim).

Dismissal also affects family proceedings. Articles 92.7 and 94 of the Civil Code (Código Civil) rule out joint custody and contact when a parent is involved in criminal proceedings for violence against the other parent or the children, or when there is well-founded evidence of violence. If the criminal case is dismissed, the first situation no longer applies, although the family judge may continue to assess the evidence. If you have divorce or custody proceedings under way, it is advisable to review the strategy with your lawyer at that point. You can see how we work in child custody with gender violence.

If you are under investigation: what dismissal means for you

• A provisional dismissal is not an acquittal. The case can be reopened if new evidence emerges. Remain cautious and do not contact the complainant if any prohibition is in force until it has been formally lifted.
• Dismissal does not create a criminal record, which only arises from a final conviction.
• You can apply for a review of the family measures that were adopted because of the criminal proceedings.
• Dismissal does not mean the complaint was false. To prosecute a false accusation (art. 456 CP), there must be a final dismissal or judgment and, in addition, evidence that the complainant knew the facts were false or acted with reckless disregard for the truth. If this is your situation, read how to prove your innocence against a false accusation.

Frequently asked questions

Can I withdraw a gender violence complaint?

No. Gender violence offences are public offences and the Public Prosecutor is obliged to continue even if the victim wishes to drop the case. The victim can waive her role as private prosecutor and any compensation, and can invoke the exemption from testifying under article 416 LECrim if none of the exceptions applies, but the proceedings do not end simply because she wants them to.

Can I refuse to testify against my partner or ex-partner?

In principle, yes, thanks to the exemption in article 416 LECrim, which covers a spouse or equivalent partner. Since Organic Law 8/2021, you cannot invoke it if you are or have been a party to the proceedings as private prosecutor, if you have already agreed to testify after being informed of your right not to, or in the other situations listed in the law, such as where the victim is a minor.

What is the difference between provisional and final dismissal?

Provisional dismissal (art. 641 LECrim) is ordered when the offence or the identity of the offender has not been sufficiently proved; it halts the case, but it can be reopened with new evidence as long as the offence is not time-barred. Final dismissal (art. 637) is ordered when the act did not take place, is not an offence or the person under investigation is exempt; once it is final, it closes the case permanently.

How long do I have to appeal a dismissal?

If you are a party to the proceedings, you have 3 days to apply for reconsideration before the same court and 5 days to appeal to the Provincial Court, which can be done directly. If you are a victim and not a party to the proceedings, the LECrim gives you 20 days to appeal the dismissal order from the date it is communicated to you.

Does the restraining order remain in force if the case is dismissed?

Normally not. Criminal interim measures depend on the proceedings, and when the case is dismissed they are usually lifted. Until the court expressly orders them to be lifted, the prohibition remains in force and breaching it may be a criminal offence of breach (quebrantamiento). The civil measures in the protection order follow their own 30-day rule or whatever the family judge decides.

Whether you are thinking about “dropping” a complaint, have just received a dismissal, or are the person under investigation, the most important thing is not to act blindly. Celeste Pérez Bleda has spent 20 years practising criminal law and knows well how these proceedings are handled in Alicante, including fast-track trials for gender violence (juicios rápidos). You can find out more about defending women who are victims or defending men who have been reported, or call 607 449 491, 24 hours a day.