SPAIN Law and Practice Contributed by: Gabriel Rodríguez-Ramos, RODRIGUEZ RAMOS ABOGADOS
These rules: • define (content) the penalties (Articles 32 to 60 CC); • cement the rules for the imposition of the penalties: (a) general rules (Articles 61 to 72 CC); and (b) when considering various crimes (Articles 73 to 79 CC); and • cement the rules for the execution of the penalties: (a) suspension (Articles 80 to 87 CC); (b) substitution (Article 89 CC); and (c) conditional release (Articles 90 to 92 CC). Anyone who witnesses the commission of any public crime is obligated to immediately inform the nearest investigating judge, prosecutor or police officer (Arti - cle 259 of the Spanish Criminal Procedural Law). When the natural or legal person can be considered liable for the offence, the privilege against self-incrimi - nation (Article 6.1 ECHR) prevails, and there is no obli - gation to inform to authorities. 6.2 Voluntary Disclosure Incentives 6. Disclosure Processes 6.1 Disclosure Obligations Self-incrimination and collaboration with authorities can have the benefits expressed in 4.5 Safe Harbour or Amnesty Programme . 6.3 Self-Disclosure Procedures There is no concrete process for self-disclosure infor - mation or documentation. Normally, it is a procedure led by the attorney of the self-incriminated, who co-ordinates the collaboration and negotiates the incentives with the prosecutor. Once the judicial process begins, it is also possible to achieve termination through an agreement with the prosecutor’s office. Apart from the requirements of a privileged regime to reduce penalties when considering crimes with a maximum penalty of less than three years of impris - onment, plea agreement terms are flexible and widely used as a legal instrument.
Over the last year, approximately 75% of cases relat - ed to crimes with penalties of less than three years’ imprisonment have been concluded with plea agree - ments. This figure drops to 65.4% for crimes carrying penalties ranging from three to five years of imprison - ment, and to 58.8% for crimes with penalties exceed - ing five years of imprisonment. 6.4 Protections Afforded to Whistle-Blowers In March 2023, a new law regulating the protection of individuals reporting regulatory violations and com - bating corruption (Law 2/2023, published on 21 Feb - ruary 2023, and entered into force on 13 March 2023) came into effect, transposing Directive 2019/1937. The law introduced the obligation, for both private and public entities, to implement systems to receive infor - mation and investigate regulatory violations constitut - ing crimes or serious administrative offences (Article 2.1.b Law 2/2023) with certain requirements and guar - antees. Private and public entities must, from now on, guarantee protective measures for the whistle-blower. • Prohibition of retaliation (Article 36 Law 2/2023), including: (a) suspension, dismissal, or termination of the employment contract; (b) damages, including reputational damages, or economic losses, coercion, intimidation, har - assment, or ostracism; (c) negative evaluations or references regarding work or professional performance; (d) inclusion on blacklists or dissemination of information in a specific sector that can affect the access to employment or the contracting of works or services; (e) denial or cancellation of a licence or permit; (f) denial of training; and (g) discrimination or unjust treatment. • Supportive measures (Article 37 Law 2/2023), including: (a) comprehensive and independent information and advice, easily accessible to the public and free of charge, regarding the procedures and resources available, protection against retalia - tion, and the rights of the affected person; (b) effective assistance from competent authorities before any relevant authority involved in their
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