SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
2. Enforcement Architecture 2.1 Investigative and Enforcement Authorities Authorities Responsible for Investigation and Prosecution • Investigation phase: The facts are examined and evidence is gathered by an Investigating Court at the place where the offence occurred. For complex cases, matters of national importance or cases involving organised crime, jurisdiction lies with the Central Investigating Courts of the National Court. • Trial phase: Once the investigation is complete, the case is transferred to a different court for trial. Jurisdiction depends on the severity of the poten - tial sentence. Criminal Courts hear cases punish - able by up to 5 years’ imprisonment. Provincial Courts try more serious offences. Where the investigation was conducted by the Nation - al Court, the trial is heard by the Central Criminal Court or the Criminal Chamber of the National Court, depending on the seriousness of the offence. Who Can Bring Criminal Charges Unlike other legal systems, where only the public prosecutor can bring criminal charges, Spanish law allows multiple parties to do so: • public prosecutor – the prosecutor is responsible for the administration of justice and must bring criminal proceedings where there is evidence of an offence; • private prosecution – the victim or injured party may join the proceedings and bring both criminal and civil claims, regardless of whether the public prosecutor supports the case; and • popular prosecution – a distinctive feature of Span - ish law; any Spanish citizen may bring criminal pro - ceedings in the public interest, even if they are not personally affected (this mechanism is often used by associations, trade unions and political parties in corruption and financial crime cases). Parallel Enforcement Regimes Spanish law prohibits punishing a person twice for the same conduct.
If a public authority (such as the Tax Agency, the CNMV, SEPBLAC or another regulator) finds irregu - larities that may constitute a criminal offence, it must report them to the public prosecutor. Once criminal proceedings begin, any administrative penalty pro - ceedings are suspended until the criminal case con - cludes. 2.2 Initiation of Investigations A criminal investigation may be initiated in the follow - ing ways: • by a complaint brought by the Public Prosecutor, the victim or any Spanish citizen (see 2.1 Investi- gative and Enforcement Authorities ); • by a police report – the Police may identify evi - dence of an offence during their investigations and submit a report to the Investigating Court; and • by a referral from regulators – certain authorities, including the Tax Agency, the CNMV, SEPBLAC, the Bank of Spain and the Labour Inspectorate, must report to the Public Prosecutor if they find evidence of an offence in the course of their work. Prosecutorial discretion is addressed in 6.1 Prosecu- tion and Resolution Mechanisms . 2.3 Investigatory Powers Requesting Documents and Information Investigating Judges have full powers to order any individual or company to produce information and documents. However, suspects have the right not to cooperate (see 2.6 Right to Not Co-Operate or Self- Incriminate ). Public Prosecutors may also request information before a judicial investigation formally begins. Searches and Seizures Searching private premises requires prior judicial authorisation, unless the occupant consents or the offence is being committed at that moment (in fla - grante delicto). The judge may order searches of com - pany offices, professional premises and computer systems where there are sufficient grounds to believe they contain evidence. Any items connected with the offence will be seized and preserved.
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