SPAIN Law and Practice Contributed by: Gabriel Rodríguez-Ramos, RODRIGUEZ RAMOS ABOGADOS
4. Defences and Exceptions 4.1 Defences
(c) financial management models that are appropriate for preventing the commis - sion of the crimes that must be prevent - ed; (d) the obligation to report possible risks and non-compliance to the body responsible for monitoring the prevention model; (e) a disciplinary system that appropriately sanctions the non-compliance with the measures established by the model; (f) periodic verification of the model and its potential modification when significant violations of its provisions become evi - dent or when changes in the organisation, control structure, or activities carried out make them necessary; and (g) assigning the supervision of the model to a specific body within the legal entity with autonomous powers of initiative and control. Both natural persons and companies can be held liable for the same offence but: • when as a consequence of the same facts, a fine is imposed on both parties, courts shall adjust the respective amounts so that the resulting sum is not disproportionate in rela - tion to the severity of those facts (Article 31 ter 1 CC); and • if the company has no material identity differ - ent from the owner who is considered liable, there will be no penalty for the company (non bis in idem). The transformation, merger, absorption, or divi - sion of a legal entity does not extinguish its crim - inal liability, which will be transferred to the entity or entities into which it transforms, merges, or is absorbed and will extend to the entity or entities resulting from the division (Article 130.2 CC).
Defence of natural persons normally includes: • the non-existence of the facts or participa - tion in the facts as considered by accusations (presumption of innocence); • the irrelevance of the facts for the criminal law (legality principle); • mitigating circumstances, such as: (a) confession to the authorities of the offence before knowing that judicial pro - ceedings were directed against them; (b) reparation of the harm caused to the victim or to lessen its effects at any point during the proceedings and prior to the trial; (c) extraordinary and undue delay in the pro - ceeding (not attributable to the accused); and (d) any other circumstance with similar sig - nificance; • exempting circumstances (rare in respect of these offences): (a) commit the criminal offence due to: (i) any mental anomaly or alteration; or (ii) in a state of full intoxication due to the consumption of alcoholic bever - (b) act driven by insurmountable fear; (c) act fulfilling a duty or in the legitimate exercise of a right, profession, or position; and (d) state of necessity; and • limitation periods. The defence of legal entities against potential criminal liability (in addition to the defence of natural persons) usually focuses on the exist - ages, toxic drugs, narcotics, psy - chotropic substances, or others that produce similar effects;
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