SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
A whistle-blower acting in good faith is protected from civil and administrative liability for disclosing informa - tion. There are no financial rewards for whistle-blow - ers in Spain. Retaliation against whistle-blowers is classified as a very serious infringement. Companies may face fines of up to EUR1 million. Additionally, the Criminal Code makes it a criminal offence to try to influence, threat - en or attack whistle-blowers, witnesses or lawyers in order to change their testimony in legal proceedings. Anonymous Reporting The Whistle-Blower Protection Act expressly permits anonymous reports through both internal and external channels. The Supreme Court has confirmed that an anonymous report can be sufficient to trigger a police investigation. 6. Resolutions, Sanctions and Remedies 6.1 Prosecution and Resolution Mechanisms Mandatory Prosecution: No Prosecutorial Discretion Spain operates a system of mandatory prosecution. The public prosecutor must bring criminal proceed - ings whenever there are indications that an offence has been committed. There is no discretion to decline prosecution on grounds of expediency or public interest. Unlike some other jurisdictions, Spain has no equivalent to deferred prosecution agreements or non-prosecution agreements. The public prosecutor cannot agree to drop criminal proceedings in exchange for cooperation or future conduct commitments. However, co-operation is commonly taken into account when determining the sentence. Conformidad: The Only Route to Early Resolution Conformidad is the only mechanism for resolving criminal proceedings early. It allows the defendant to accept the facts and the sentence proposed by the Public Prosecutor, avoiding a full trial. This is not a free-form negotiation. The agreed sentence must fall within the legal limits for the offence.
In practice, where the parties agree on the amount of compensation in a financial crime case, the pub - lic prosecutor will often seek a significantly reduced sentence. If formal charges have not yet been filed, the prosecutor may even request that proceedings be discontinued. 6.2 Sanctions and Sentencing Penalties for Individuals The main penalties for individuals are imprisonment, fines and disqualification from practising a profes - sion or holding directorships. The length and severity of these penalties depend on the seriousness of the offence, the amount involved and any aggravating factors. Aggravating factors include membership of a criminal organisation or the use of corporate struc - tures to conceal the offence. Penalties for Companies The penalties available for companies are: • fines calculated in proportion to the benefit obtained; • dissolution, resulting in the permanent loss of legal personality; • suspension of activities or closure of business premises; • a ban on carrying out the activities connected to the offence; • disqualification from public-sector contracts and from receiving subsidies, tax incentives or Social Security benefits; and • judicial intervention to protect the rights of employ - ees or creditors. Mitigating Factors The main mitigating factors are: • confessing before the suspect learns that an inves - tigation has begun; • cooperating with the authorities; and • compensating the victim. For companies, implementing a compliance pro - gramme may also reduce liability, as explained in 5.2 Compliance Programmes .
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