SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
1. Legal Framework and General Principles 1.1 Scope of Financial Crime and General Criminal Law Principles Definition of “Financial Crime” “Financial crime” is not a formal legal term under Spanish law. It is a broad category that covers offenc - es against property, the socio-economic order and market integrity. It also includes corporate offences, money laundering and offences against the Public Treasury and Social Security. Constituent Elements of an Offence Under Spanish criminal law, an offence requires three elements: • the conduct must match the statutory definition of the offence; • it must be unlawful; and • the offender must be culpable. Intent requires that the offender knows the essential facts of the offence and intends to bring them about. Negligence occurs when the offender breaches their duty of care, causing foreseeable and avoidable harm without intending to do so. As a general rule, only intentional conduct is punish - able. Negligent conduct is only punishable where the law expressly provides for it. Attempt and Inchoate Offences An attempt occurs when the offender begins to carry out the offence but does not complete it for reasons beyond their control. The penalty for an attempt is reduced by one or two degrees below the penalty for the completed offence. Inchoate offences are only punishable where the law expressly provides for them (for example, in relation to money laundering or market manipulation). There are three types: • conspiracy – when two or more people agree to commit an offence and decide to carry it out;
• solicitation – when a person who has decided to commit an offence invites others to participate; and • incitement – directly encouraging the commission of an offence through the media or before a large audience. Corporate criminal liability is addressed in 5.1 Corpo- rate and Individual Liability . 1.2 Burden and Standard of Proof Burden of Proof The burden of proof lies entirely with the prosecu - tion. The prosecution must prove both that an offence was committed and that the defendant was involved. Where the defendant is a company, the prosecution must also prove the organisational failings that give rise to the company’s liability (see 5.1 Corporate and Individual Liability ). The defendant does not have to prove their inno - cence or assist in their own prosecution. However, the defence may present evidence to challenge the prosecution’s case, which is known as “exculpatory evidence”. Standard of Proof A conviction requires proof of guilt beyond a reasona - ble doubt. If any reasonable doubt remains after hear - ing the evidence, it must be resolved in the defend - ant’s favour. Presumptions Spanish criminal law does not recognise strict liability offences, presumptions of guilt or any mechanism that Spanish criminal law punishes those who contribute to the commission of an offence. There are three cat - egories of participants: • instigator – a person who induces another to com - mit the offence; • necessary cooperator – a person whose contribu - tion is essential to the offence; and • accomplice – a person who plays an auxiliary role. reverses the burden of proof. 1.3 Aiding and Abetting
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