SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
Instigators and necessary cooperators receive the same sentence as the principal offender. Accomplices receive a lesser sentence. Many financial crime offences are “special offences”. This means that only a person with a specific sta - tus can be the principal offender. For example, in tax fraud, only the taxpayer can be the principal. However, those who commit these offences without the required status are not unpunished. The Criminal Code allows the court to impose a reduced sentence on such par - ticipants. 1.4 Limitation Periods Limitation Periods The limitation period for a financial crime depends on the maximum sentence for that offence. Periods range from five to 20 years. The most serious offences, punishable by 15 years’ imprisonment or more, have a 20-year limitation peri - od. Offences carrying sentences of ten to 15 years have a 15-year limitation period. Those punishable by five to ten years’ imprisonment have a ten-year limitation period. All other offences have a five-year limitation period. When the Limitation Period Starts Where multiple offences are charged together, the limitation period for the most serious offence applies to all of them. The limitation period begins on the date the offence was committed. For offences defined by their result, this is when the prohibited outcome occurs. For offences defined by conduct, it is when the prohibited act takes place. For continuing offences (a series of related acts), the period begins from the last act. For ongoing offences (a continuing unlawful state), it starts In Spanish proceedings, the civil claim is typically brought within the criminal case itself (see 6.3 Pro- ceeds of Crime Recovery ). Commencing criminal proceedings suspends the limitation period for any related civil claim. If the victim chooses to pursue the civil claim separately, the limitation period is one year when the unlawful situation ends. Limitation Period for Civil Claims
(Article 1968.2, Civil Code), running from the conclu - sion of the criminal case. 1.5 Extraterritorial Reach and Cross-Border Co-Operation Jurisdiction Over Foreign Offences Spanish courts have jurisdiction over offences com - mitted in Spain. Spanish courts may also prosecute offences commit - ted abroad by Spanish nationals. This applies where: • the conduct is also a crime in the country where it occurred; the Public Prosecutor or the victim brings proceedings; and • the offender has not already been convicted or acquitted abroad. Spanish courts also have jurisdiction over bribery in international business transactions in certain circum - stances. These include cases where: • the offender is Spanish; • the offender is a foreign national living in Spain; • the offender acts on behalf of a company based in Spain; or • the offence is committed by a company registered in Spain. International Judicial Cooperation Spain is a party to the 1959 European Convention on Mutual Assistance in Criminal Matters. This requires signatory states to provide the widest possible mutual legal assistance, including conducting investigations, obtaining evidence and serving documents. Assis - tance may only be refused on specific grounds, such as where it would breach public policy or where Span - ish courts have exclusive jurisdiction. Mutual Legal Assistance Within the EU, Law 23/2014 transposed into Spanish law the main mutual recognition instruments: • the European Arrest Warrant;
• custodial sentences and measures; • probation and supervision measures; • the European Protection Order; • freezing orders for assets or evidence;
181 CHAMBERS.COM
Powered by FlippingBook