SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
4.4 Venue and Specialisation Absence of Specialist Courts or Divisions Spain has no specialist courts or divisions for financial crime. Subject-matter jurisdiction is governed by the general rules of the Criminal Procedure Act and is primarily based on the penalty: • Criminal Courts try offences punishable by up to five years’ imprisonment; whereas • Provincial Courts hear all other cases; and • certain financial offences (such as bribery and embezzlement) are tried by the Jury Tribunal (which sits before the Provincial Court and is not a sepa - rate specialist jurisdiction). The sole exception is the National Court, as outlined below. Article 65 of the Organic Law of the Judiciary Branch confers on it jurisdiction over fraud and schemes to distort prices that have or may have serious conse - quences for the security of commercial transactions, the national economy or that cause financial harm to a large number of persons. It also has jurisdiction over offences whose investi - gation and prosecution are the responsibility of the European Public Prosecutor’s Office, particularly fraud affecting the financial interests of the EU. Right to the Legally Predetermined Judge Suspects cannot choose their court, jurisdiction or trial type. Article 24.2 of the Constitution enshrines the right to the ordinary judge predetermined by law, which means that jurisdiction is non-extendable and non-waivable, determined by the statutory penalty and place where the offence was committed. 4.5 Trial by Jury Jurisdiction of the Jury Tribunal in Financial Crime Cases The only offences with a financial dimension attributed to the Jury Tribunal are those involving public officials: bribery, influence peddling, embezzlement of public funds, fraud and unlawful exactions and prohibited dealings by officials.
Pre-trial detention is exceptional, permitted only where there are rational indications of criminal con - duct and heightened risk of flight, evidence conceal - ment or reoffending. As an alternative to detention, the judge may impose less restrictive interim measures, which are common in financial crime cases. These include: • posting bail; • surrendering the passport; • a prohibition on leaving the country; or • an obligation to appear periodically before the court. These measures may be combined and reviewed at The maximum duration of pre-trial detention is one year for offences carrying a penalty of three years’ imprisonment or less and two years for offences car - rying a higher penalty. In the first case, a single exten - sion of six additional months is permitted; in the sec - ond, a two-year extension may be granted. If these time limits are exhausted without the trial hav - ing taken place, the suspect must be released imme - diately, without prejudice to the imposition of alterna - tive interim measures. 4.3 Public or State Funding Spain recognises the right of all suspects to free legal assistance, provided they can demonstrate insuffi - cient financial means. any stage at a party’s request. Duration of Pre-Trial Detention The eligibility threshold is determined by reference to income level, for which the Tax Agency, the Land Registry ( Catastro ) and the Property Registry are con - sulted. Where external signs indicate a financial capacity exceeding that declared, the benefit may be refused. If, within the three years following the conclusion of the proceedings, the beneficiary’s financial circum - stances improve, the state may reclaim the amounts paid.
191 CHAMBERS.COM
Powered by FlippingBook