SPAIN Law and Practice Contributed by: Gabriel Rodríguez-Ramos, RODRIGUEZ RAMOS ABOGADOS
4. Defences and Exceptions 4.1 Defences Defences available to natural persons normally include: • the non-existence of the facts or participation in the facts as considered by accusations (presump - tion of innocence); • the irrelevance of the facts for the criminal law (legality principle); • mitigating circumstances, such as: (a) confession to the authorities of the offence before knowing that judicial proceedings were directed against them; (b) reparation of the harm caused to the victim or to lessen its effects at any point during the proceedings and prior to the trial; (c) extraordinary and undue delay in the proceed - ing (not attributable to the accused); and (d) any other circumstance with similar signifi - cance; • exempting circumstances (rare in respect of these offences): (a) commit the criminal offence due to: (i) any mental anomaly or alteration; or (ii) in a state of full intoxication due to the consumption of alcoholic beverages, toxic drugs, narcotics, psychotropic substanc - es, or others that produce similar effects; (b) act driven by insurmountable fear; (c) act fulfilling a duty or in the legitimate exercise of a right, profession, or position; and (d) state of necessity; and • limitation periods. The defence of legal entities against potential criminal liability (in addition to the defence of natural persons) usually focuses on the existence and reliability of their internal control systems for compliance risks, particu - larly criminal. Due to the relative youth of this institution and the gradual assimilation of its content by the courts, it is often very useful to introduce an expert as a means of evidence. This expert can explain to the judicial body the reality of the company and its management of criminal risks.
instruments (Article 288 CC); and (h) money laundering (Articles 302.2 CC); • the legal entity has not taken the necessary organi - sational and management measures to neutralise that possibility. These measures must include, at least (Article 31 bis CC): (a) the identification of the activities within which crimes that must be prevented can be commit - ted; (b) protocols or procedures that specify the process of forming the will of the legal entity, making decisions, and executing them; (c) financial management models that are ap - propriate for preventing the commission of the crimes that must be prevented; (d) the obligation to report possible risks and non- compliance to the body responsible for moni - toring the prevention model; (e) a disciplinary system that appropriately sanc - tions the non-compliance with the measures established by the model; (f) periodic verification of the model and its poten - tial modification when significant violations of its provisions become evident or when changes in the organisation, control structure, or activi - ties carried out make them necessary; and (g) assigning the supervision of the model to a specific body within the legal entity with autonomous powers of initiative and control. Both natural persons and companies can be held liable for the same offence but: • when as a consequence of the same facts, a fine is imposed on both parties, courts shall adjust the respective amounts so that the resulting sum is not disproportionate in relation to the severity of those facts (Article 31 ter 1 CC); and • if the company has no material identity different from the owner who is considered liable, there will be no penalty for the company (non bis in idem). The transformation, merger, absorption, or division of a legal entity does not extinguish its criminal liability, which will be transferred to the entity or entities into which it transforms, merges, or is absorbed and will extend to the entity or entities resulting from the divi - sion (Article 130.2 CC).
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