SPAIN Law and Practice Contributed by: Gabriel Rodríguez-Ramos, RODRIGUEZ RAMOS ABOGADOS
and Social Normalisation in Catalonia was pub - lished. Since the approval of the Spanish Constitution in 1978, no amnesty for criminal responsibilities has been enacted, and the implementation of this Amnesty Law has sparked profound debates regarding its constitutional basis, particularly its potential incompatibility with the principle of equality before the law. The Amnesty Law is facing several challenges. • Its application to the ongoing investigations of independence leaders by courts, including the Spanish Supreme Court. • The request for the declaration of unconsti - tutionality of the law, filed before the Consti - tutional Court by the Spanish Supreme Court and various other entities. 2. Bribery and Corruption Elements 2.1 Bribery Bribery is defined as follows: • with reference to the national public sector, as any gift, favour, or retribution of any kind, offer or promise (Articles 419, 420 and 422 CC); and • with reference to the private sector and inter - national public procurement, as unjustified benefit or advantage of any nature (Articles 286 bis and 286 ter CC). There is not a specific definition of corruption, but the term is used to systematically embrace bribery affecting the private sector (Article 286 bis CC) and foreign public bribery affecting pub - lic procurement (Article 286 ter CC), assuming the terminology of the Council Framework Deci -
sion 2003/568/JHA of 22 July 2003 on combat - ing corruption in the private sector and of the United Nations (UN) Convention against Corrup - tion, adopted by the UN General Assembly on 31 October 2003, by Resolution 58/4. Spanish law incriminates both public and pri - vate bribery and corruption conduct carried out nationally and internationally by natural and legal persons. • Bribery and corruption related to the public sector. (a) Affecting national public administration: (i) improper influence over public offi - cials and authorities (by other public officials or authorities – Article 428 of the Spanish Criminal Code, CC – or by a non-public person – Article 429 CC); (ii) bribery of public officials and authori - ties to engage in improper conduct (both the public official who pro - motes or receives it – Article 419 CC – and the private individual who pro - motes or pays it – Article 424 CC), to gratify proper conduct (Articles 420 and 421 CC), due to his public condition (Article 422 CC); (iii) misappropriation of public funds, including the misappropriation of public assets (Article 432 CC), their use for private purposes (Article 432 bis CC) or for a purpose different from the one intended (Article 433 CC), with a new regulation which entered into force in January 2023; (iv) fraud in public procurement (Article 436 CC); and (v) actions not falling under the previ - ous provisions, but involving unfair decisions in public functions incom -
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