SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
This is an endangerment offence, which is complete upon the creation of the risk, without the need for harm to materialise. The penalty is six months to two years’ imprisonment, a fine and disqualification. Penalties are aggravated where human health is endangered. Greenwashing Spain has no standalone criminal offence for green - washing. Investigation and Enforcement Environmental offences are investigated by local Courts of Investigation, supported by the Coordinat - ing Prosecutor for Environmental Offences and SEP - RONA (Nature Protection Service), which acts as a specialist judicial police. At the administrative level, regional (and where appli - cable, national or local) environmental authorities hold sanctioning powers and prepare technical expert reports. Where administrative proceedings reveal potential criminal conduct, authorities must refer the matter to the Public Prosecutor and suspend administrative proceedings pending the criminal outcome. The distinction between administrative infringement and criminal offence lies in severity: criminal liability is reserved for pollution capable of seriously endanger - ing natural systems or human health. 4. Prosecution and Trial Process 4.1 Initiating a Prosecution Routes for Commencing Criminal Proceedings See 2.2 Initiation of Investigations for details on com - mencing proceedings. Summons and Arrest of the Suspect • The investigating judge typically summons finan - cial crime suspects by formal notification, served through their court agent or at their address.
• Failure to comply with the summons without cause may result in the suspect being brought before the court by the police. • Arrest is only appropriate where there are rational indications of criminal conduct and a risk of flight, evidence concealment or reoffending. • Only the investigating judge may summon a suspect, though the Public Prosecutor or private/ popular prosecution may request it. See 6.1 Prosecution and Resolution Mechanisms for the decision to prosecute, discretion and regulatory framework. Applicable Rules Criminal proceedings are governed by the Spanish Constitution, the Criminal Procedure Act and the Criminal Code. In addition, the decision to prosecute financial offenc - es is frequently contingent upon a breach of a non- criminal provision, as in cases where the criminal law refers to other branches of the legal system, such as Financial crime proceedings typically take longer than others, due to their greater technical and evidentiary complexity. It is common for the investigating judge to request extensive documentation from public and private enti - ties and to appoint accounting, tax or financial experts without prejudice to expert reports commissioned by the parties. The cross-border dimension of many cases – which requires letters rogatory, European Investigation Orders or mutual legal assistance – and the frequent involvement of multiple suspects and prosecuting par - ties (public, private and, where applicable, popular), all of which multiply the procedural steps required. Custody Status of the Suspect The general rule is that suspects remain at liberty until trial. tax and environmental offences. 4.2 Due Process and Bail Duration of Financial Crime Proceedings
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