SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
Questioning of Suspects and Witnesses The Investigating Judge may summon suspects and witnesses, as follows. • Suspects – they must be informed of the allega - tions against them and of their rights, including the right to remain silent (see 2.6 Right to Not Co- Operate or Self-Incriminate ). They must always have a lawyer present when giving evidence. If they fail to appear without a reason, the judge may order their arrest. • Witnesses: Everyone in Spain is required to give evidence, unless they are protected by professional privilege or a family relationship with the suspect. If a witness refuses to appear or testify, the judge may order their compulsory attendance. They may also face criminal liability for contempt of court. Powers to trace, freeze and confiscate assets are dis - Instruction 2/2026 of the General Council of the Judi - ciary Branch regulates the use of artificial intelligence by judges. The key principles are as follows. • AI must always remain under the effective con - trol of the judge. It cannot replace the judge in decision-making, the evaluation of evidence or the application of law. • The judge remains personally responsible for every judicial decision. • Judges may only use AI systems that have been approved and provided by a competent public authority. • AI may only be used for limited purposes: legal research, document analysis and structuring, inter - cussed in 2.7 Pre-Charge Powers . 2.4 Use of Technology and Data Use of AI by Judicial Authorities nal summaries and outlines (not forming part of any decision) and administrative or organisational support. • Judges may only use drafts generated by author - ised AI systems. Each draft must be subject to the judge’s critical, thorough and personal review before use. • The following are prohibited: profiling, behavioural prediction, risk assessment and classification of individuals (except where expressly authorised by
law). Mass or indiscriminate processing of judicial data is also prohibited. • Data from judicial proceedings must never be entered into any AI system. Use of AI by Administrative and Law Enforcement Authorities Both regulatory authorities and law enforcement deploy analytical technologies in financial crime pre - vention and investigation. These include mass data analysis, financial intelligence systems, digital foren - sics and cryptocurrency tracing (some incorporating AI). 2.5 Internal Investigations and Co-Operation The Central Role of Internal Investigations in the Corporate Criminal Liability Framework Internal investigations are key to the fight against financial crime. Companies have assumed preven - tion and detection functions traditionally reserved for the State. Their practical value is twofold: • they enable rapid fact-finding, evidence gathering and corrective action before regulatory interven - tion; • they demonstrate the effectiveness of the compli - ance programme, a key requirement for exemption from corporate criminal liability. Legal Professional Privilege Legal professional privilege protects confidential com - munications with in-house or external lawyers provid - ing legal advice. For consultants and forensic experts to benefit from privilege, they should be engaged and directed by a lawyer. Data Protection and Employment Rights Employers may monitor employees, but must respect their dignity and privacy. Access to corporate email, devices or surveillance systems requires prior notifica - tion of usage rules and monitoring practices. Personal data processing in internal investigations must comply with the principles of purpose limitation, proportionality and data minimisation.
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