SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
2.7 Pre-Charge Powers Powers of the Judge to Order Asset Restraint Measures From the outset of proceedings, the Investigating Judge may order precautionary measures includ - ing: asset freezes, judicial administration, charges on property and prohibitions on disposal. The judge may also order confiscation of instruments, proceeds or profits of the offence. Legal Requirements The judge must assess whether the following require - ments are met: • there is sufficient evidence of financial offence(s); • there is a concrete risk of asset concealment, transfer or dissipation; and • the measure is suitable, necessary and proportion - ate to the gravity of the offence and harm caused. Applicable Legal Framework These powers derive from the Criminal Procedure Act (which cross-references to the Civil Procedure Act) and the Criminal Code. Cross-Border Effectiveness Within the EU, Regulation 2018/1805 enables direct transmission of freezing and confiscation orders between judicial authorities. Recognition is largely automatic with short execution deadlines. Outside the EU, cooperation proceeds through bilat - eral treaties and multilateral conventions (notably the 1990 Strasbourg Convention) or, failing that, letters rogatory. Extension to Third Parties Measures may extend to nominees, beneficial owners, shell companies and recipients of transfers made to evade justice. The Criminal Code provides for con - fiscation of assets held by third parties who knew or should have known of their unlawful origin.
Legal Recognition of Cooperation Spanish law recognises cooperation with authorities as a mitigating factor in corporate criminal liability. For individuals, the Criminal Code also recognises con - fession as a mitigating factor (see 6.2 Sanctions and Sentencing ). 2.6 Right to Not Co-Operate or Self- Incriminate Arrests and Questioning in Financial Crime Cases An arrest is exceptional, permitted only where there is evidence of a serious offence and a risk of flight or evi - dence destruction. Detainees must be brought before a judge within 72 hours for a decision on release or remand. In practice, suspects typically attend voluntarily before the Investigating Judge without prior arrest. Right Not to Cooperate and Privilege Against Self- Incrimination Suspects have a constitutional right not to testify against themselves or confess guilt (Article 24.2, Con - stitution). This includes the right to remain silent dur - ing questioning. Silence cannot be used as evidence of guilt or give rise to adverse inferences. Suspects cannot be compelled to give evidence or cooperate with the investigation. The burden of proof lies entirely with the prosecution. Investigative Powers of the Investigating Judge The Investigating Judge has broad powers to obtain evidence by reasoned order, without requiring the sus - pect’s cooperation. Available measures include: • search of the suspect’s home or offices; • examination of electronic devices; • interception of communications; and • tracking of movements. The judge may also order precautionary measures (see 2.7 Pre-Charge Powers ).
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