Contributed By Geijo & Associates
Spain is a party to the following international conventions relating to anti-bribery and anti-corruption:
All relevant corruption-related criminal offences are provided in the Spanish Criminal Code (SCC) (Ley Orgánica 10/1995, de 23 de noviembre). Administrative offences may be found in the Organic Law 6/2002 on Political Parties (Ley Orgánica 6/2020, de Partidos Políticos), the Law 5/2006, of April 10th, on conflicts of interest of members of the Government and senior officials of the General State Administration (Ley 5/2006, de regulación de los conlfictos de intereses de los miembros de Gobierno y de los Altos Cargos del a Administración General del Estado) and the Law 19/2013 on Transparency, Access to Public Information and Good Governance (Ley 19/2013, de transparencia, acceso a la información pública y buen gobierno).
Interpretation and enforcement of criminal offences is carried out by the judiciary. It is important to recall that in Spain judges and magistrates are independent, and hence not bound by case-law (precedent). Likewise, international law is part of Spanish legislation and directly applicable insofar as the relevant international treaty has been published in the Spanish Official State Gazette (Boletín Oficial del Estado) (Article 96 of the Spanish Constitution).
The latest amendment of the Spanish Criminal Code (SCC) concerning corruption-related criminal offences took effect via the Organic Law 1/2019 of February 20th (Ley Orgánica 1/2019, por la que se modifica la Ley Orgánica 10/1995, del Código Penal, para transponer Directivas del a Unión Europea en los ámbitos financiero y de terrorismo, y abordar cuestiones de índole internacional). Specifically, it includes amendments to corruption offences committed in the private sphere and expands the conduct of corruption offences to foreign public officials of national public institutions or international organisations, jurors and arbitrators and legal entities, in accordance with the Council of Europe anti-corruption body Group of States Against Corruption (GRECO)’s recommendations.
Bribery of public officials is provided in Article 419 of the Spanish Criminal Code (SCC). This provision punishes a public official who, acting within his or her functions, requests, receives or accepts a gift, favour or payment of any kind either to act, to act against his or her duties, or unfairly to delay an act that must be carried out (passive bribery). Receiving and requesting rewards by an authority or public official is also punished. The definition of bribe also includes admitting receipt of a gift because of the role or function of the authority or public official.
It also criminalises the offer or giving of a gift or payment of any kind to the authority or public official (active bribery).
The crime may be committed by an authority or public official. A public official is broadly defined (Articles 423 and 427 of the SCC) as any person who participates in the exercise of public functions, including foreign public officials, national and international jurors and arbitrators, mediators, expert witnesses, administrators appointed by a court and liquidators. Only employees of state-controlled companies providing services in the public interest are included in this definition.
The definition of public officials also includes:
Article 286bis of the SCC also punishes bribery in business by private parties. The offence may be committed by any person who promises, offers or grants an unfair benefit or advantage in exchange for undue favour in the acquisition or selling of commodities, engagement of professional services or business relationships, and/or by managers, administrators, employees or collaborators of a company or legal entity that receives, requests or accepts any such unfair benefit or advantage.
Influence-peddling is criminalised in Articles 428 to 431 of the Spanish Criminal Code (SCC). The crime may be committed by an authority, public official or a private individual who improperly influences another public official to issue a decision that economically benefits the former, or anyone else. Those who request or accept gifts or payments of any kind, or who promise or offer in order to influence another improperly, are also criminally liable.
In order to be criminally liable, abuse of power is required from the public officials or the private individuals improperly influencing the decision, whether due to their position or a special relationship.
The definition of public official includes national and foreign public officials as defined in Article 24 SCC and for the criminal offence of bribery (Article 427 SCC) (See 2.1 Bribery).
Article 433 of the SCC punishes the following criminal conducts related to financial record-keeping committed by authorities or public officials:
The same definition of public official as the definition for bribery applies to these offences (Articles 24 and 427 of the SCC). See 2.1 Bribery. It also extends to liquidators, trustees of assets confiscated by public authorities and individuals entrusted with public funds. These offences may be also committed by legal entities.
Mismanagement of public funds is punished in Article 432.1 of the Spanish Criminal Code. It may be committed by a public official or authority that has been entrusted with the management of public funds. The offence requires patrimonial damage and use of the funds, thus failing to observe his or her duties. Examples of this offence include, for instance, making payments for services never carried out, authorising unapproved operations or not claiming credits in favour of the public administration.
Misappropriation of public funds is provided for by Article 432.2 of the SCC. The definition includes public officials or authorities entrusted with public funds that have taken funds for themselves or a third person, or have denied having received the public funds. There must be an obligation to deliver or return the public funds.
The aggravated conduct of these offences includes either of the following circumstances:
Value of the damage or taken assets of more than EUR250.000 is considered super-aggravated conduct.
A lesser penalty is provided for when the damage or appropriated asset/s amounts to less than EUR4,000.
The same definition of public official as that for bribery applies to these offences (Articles 24 and 427 of the SCC). See 2.1 Bribery. It also extends to liquidators, trustees of assets confiscated by public authorities and individuals entrusted with public funds. These offences may be also committed by legal entities.
Chapter VIII of the SCC also punishes public officials or authorities that:
Articles 419 to 422 of the Spanish Criminal Code also punish the receipt, request or admission of gift or payment of any kind through intermediaries.
In the Spanish system, statutes of limitations are determined based on the maximum penalty provided for the criminal offence (Article 131 of the SCC), namely:
In cases where the conduct amounts to two or more criminal offences, or in the case of connected offences, the limitation period would be the one provided for the most serious offence.
Spanish courts and tribunals have jurisdiction over criminal offences committed in Spain, notwithstanding Spain’s obligations pursuant to international conventions to which it is a party (Article 23.1 of the SCC). In this respect, Spain has jurisdiction over any criminal offence if it is so provided by an international convention to which it is a party or by legislation from an international organisation of which Spain is a member.
Criminal jurisdiction is also established over offences committed by Spanish nationals abroad (the active personality principle) in so far as the following requirements concur:
As for the matter concerned, Article 23.4 of the Spanish Organic Act on the Judiciary (Ley Orgánica 6/1985 del Poder Judicial) expressly establishes jurisdiction over corruption in the private sector or international economic transactions, provided that:
The Spanish Criminal Code (SCC) provides for corporate liability for corruption-related offences, namely, bribery (Article 427bis of the SCC), influence-peddling (Article 430 of the SCC), misappropriation of funds, as well as embezzlement and financial record-keeping (Article 435.5 of the SCC).
Legal entities are criminally responsible if the offence is committed in the name or on behalf of them, or by those under their supervision in performing the activities of the legal entity. Both individuals and companies can be held liable for the same offence. Also, the legal entity may be held responsible even if the individual criminally responsible has not been found and no criminal proceeding has been opened against him or her. Likewise, directors may also be criminally responsible, even if the offence was not committed directly by them.
General defences are found in Article 20 of the SCC and include insanity, intoxication, self-defence, necessity, insurmountable fear and legal duty/lawful capacity of office.
In the case of insanity or intoxication, penalties other than imprisonment may be imposed, namely: internment in a psychiatric institution, a detoxification centre or a special education centre, depending on the circumstances.
Mistake of fact and mistake of law also exclude criminal liability if the mistake could not be avoided. Otherwise, the offence would be considered committed by negligence in the case of mistake of fact, or as a mitigating circumstance in the case of mistake of law.
Regarding offences committed by directives or persons representing the legal entity, Article 31bis of the SCC provides the following defences for legal entities:
As for offences committed by subordinates of directors or legal representatives, legal entities shall be exempted from criminal liability if an appropriate management and organisation system is in place to prevent the offence.
No exemptions are established to the aforementioned offences.
No de minimis exceptions are provided for the aforementioned offences.
No particular sectors or industries are exempted from the aforementioned offences.
Under Spanish legislation, there are no safe harbour or amnesty programmes that exclude criminal liability of legal entities. However, the following circumstances are established as mitigating circumstances (Article 31 quater of the Spanish Criminal Code):
As for individuals, in the case of bribery, Article 426 of the SCC provides that an individual who reports an offence, before the criminal proceedings are opened and within two months from the date the criminal offence was committed, will not be held criminally responsible.
In addition, reparation of the damage caused and active collaboration with authorities is also expressly provided as a mitigating circumstance for misappropriation of funds, embezzlement and accounting offences by public officials (Article 434 of the SCC).
Reparations and self-reporting are also established as a general mitigating circumstance for individuals (Articles 21.4 and 5 of the SCC).
Generally speaking, penalties for corruption-related offences include imprisonment, prevention from public employment or role, prevention from passive suffrage, and a fine.
Specifically, the following penalties are imposed:
Bribery committed within the private sector:
Bribery by public officials (acting against duties, not acting or unfairly delaying an act):
Bribery by public officials (acting within functions in exchange for a gift, payment, offer or promise):
Bribery (accepting a gift):
Active bribery (offering or giving gifts or payment) is punished with the same penalties. Likewise, in cases where the act of the public official relates to procurement procedures, subsidies or auctions, a penalty of disqualification from obtaining them or tax or social security benefits from five to ten years shall be imposed on the individual or legal entity.
Legal entities shall be punished with a fine of an amount depending on the term of imprisonment provided for persons:
Influence-peddling by a public official:
Influence-peddling by a private individual:
Misappropriation and mismanagement of public funds by a public official:
Aggravated misappropriation and mismanagement of public funds:
Misappropriation and mismanagement of public funds of less than EUR4,000:
Accounting fraud without damage:
Accounting fraud with damage:
Guidelines to determine the penalty to be imposed are established in the First Book, Title III, Chapter 2, of the Spanish Criminal Code (SCC). Judges and tribunals must provide the reason for the sentence being imposed.
When it comes to completed offences, the sentence must be imposed considering the particular circumstances of the perpetrator and the seriousness of the offence.
A number of rules are stipulated about when mitigating and aggravating circumstances apply. Thus, if there is one mitigating circumstance, the sentence imposed cannot go beyond the first half of the penalty range. If two or more mitigating circumstances concur, the range of the penalty to be imposed would go from half of the minimum up to the minimum. Conversely, when an aggravating circumstance applies, the sentence is imposed within the second half of the penalty range. If two or more aggravating circumstances concur, up to one and a half the maximum established for the offence is imposed.
If aggravating and mitigating circumstances concur, the judge must assess whether qualified mitigating or aggravating circumstances exist.
If the person has been convicted at least three times for offences of the same nature, a sentence may be imposed of up to one and a half times the maximum.
In the case of an attempt, the judge must assess the risk and the stage of execution of the offence.
Penalties for accomplices range from half the minimum penalty established by law up to the minimum.
As for legal entities, the same rules apply. The following criteria shall be taken into account:
The penalty of liquidation of legal entities, of more than five years (or permanent) prohibition to perform certain activities or prevention to obtain financial aid, procurement contracts or tax or social security benefits of more than five years, can only be imposed if any of the following requirements apply:
Imprisonment of less than three months shall always be replaced by a fine, community service or house arrest. Each prison day is replaced by two days of fine or a day of community service or house arrest.
Generally, the maximum time to serve is 20 years, except if one of the offences is punished with up to 20 years of imprisonment (serving a maximum 25 years), one of the offences is punished with more than 20 years of imprisonment (serving a maximum 30 years), two or more offences are punished with more than 20 years of imprisonment (serving a maximum of 40 years). 40 years is also established as a maximum in the case of terrorism when one of the offences is punished with more than 20 years of imprisonment.
When the same conduct amounts to two or more offences, the sentence imposed must be within the second half of the penalty provided for the most serious offence, unless it is higher than the sum of the penalties of the offences separately.
Articles 31 bis and 31 quater of the Spanish Criminal Code provide for the extinction and the mitigation of criminal liability for legal entities that have devised and implemented an effective compliance programme. However, the failure to set up a compliance programme does not attract a legal consequence.
Legal entities will benefit from a complete exemption of criminal liability if:
In addition, organisational and management systems must:
In this regard, the Prosecutor Office in Spain has issued its guidelines to Spanish prosecutors on criminal prosecution of legal entities (Circular 1/2016 sobre la responsabilidad penal de las personas jurídicas conforme a la reforma del Código Penal efectuada por Ley Orgánica 1-2015). These guidelines identify the criteria to assess the efficiency of compliance programmes in light of the rules established in the Spanish Criminal Code.
Among others, the effectiveness in preventing crimes is considered as a main circumstance.
Finally, the fact that a legal entity has implemented a compliance programme before the beginning of the trial hearing will be considered as a mitigating circumstance.
There are no specific provisions imposing the disclosure of anti-bribery and anti-corruption violations. However, under Spanish legislation, individuals have the obligation to report crimes of which they become aware. Articles 259 and 262 of the Spanish Criminal Procedure Code [Real Decreto de 14 de septiembre de 1882 por el que se aprueba la Ley de Enjuiciamiento Criminal] require that those i) who witness a public criminal offence, or ii) who become aware of its commission because of their position, profession or job, report the offence to the public authorities. These provisions apply as well to bribery and other corruption cases.
The penalty provided for the breach of the reporting obligation amounts to the imposition of a fine of up to 250 pesetas (EUR1.5). The legislator has not converted this low amount into euros since in practice the provisions are not enforced.
In addition, the implementation of a compliance programme imposing the obligation to report potential risks and breaches is one of the conditions for the exemption of criminal liability of legal entities Thus, this would include the reporting of anti-bribery and anti-corruption violations.
There is no specific law on whistle-blowers' protection in Spain. However, the Spanish Prosecution Office, in its Circular 1/2016 (See 6.1 National Legislation and Duties to Prevent Corruption), has indicated that the obligation to report in compliance programmes cannot be imposed without the establishment of whistle-blowers’ protective measures.
In addition, the Supreme Court and the Constitutional Court have found wrongful dismissals both under the right to freedom of information (Article 20.1.d of the Spanish Constitution) and the right to freedom of expression (Article 20.1.a of the Spanish Constitution), when the employer has dismissed the employee after they have reported criminal offences.
Following the European Court of Human Rights jurisprudence, the Spanish Supreme Court has also accepted anonymous complaints as a basis to open criminal investigations.
Finally, data protection legislation protects the identity of the individual reporting offences in the private sector.
There are no incentives for whistle-blowers to report bribery or corruption offences in Spain.
There are no specific provisions regarding whistle-blowers in Spanish criminal legislation. There are some provisions regarding whistle-blowers in administrative legislation, for instance, in the Private Insurance Organisation and Supervision Act (Ley 20/2015, de ordenación, supervision y solvencia de las entidades aseguradoras y reaseguradoras), and in the Organic Law on Data Protection and Guarantee of Digital Rights (Ley Orgánica 3/2018 de Protección de Datos Personales y garantía de los derechos digitales).
In Spain, there are no specific anti-bribery and anti-corruption laws. As mentioned in 1 Legal Framework for Offences, corruption-related offences are provided for in the Spanish Criminal Code.
Administrative offences may be found on the Organic Law 6/2002 on Political Parties (Ley Orgánica 6/2020, de Partidos Políticos), Law 5/2006, of April 10th, on conflicts of interest of members of the Government and senior officials of the General State Administration (Ley 5/2006, de regulación de los conflictos de intereses de los miembros de Gobierno y de los Altos Cargos del a Administración General del Estado) and Law 19/2013 on Transparency, Access to Public Information and Good Governance (Ley 19/2013, de transparencia, acceso a la información pública y buen gobierno).
Law 19/2003 establishes a sanctions regime structured in three areas: infringements in matters of conflict of interest, in matters of economic-budgetary management and in the disciplinary sphere. Sanctions provided for include the dismissal from the public office held by the offender, prevention from receiving compensatory pensions, the obligation to restore the amounts unduly received and the obligation to compensate the Public Treasury. Furthermore, it is provided that perpetrators of very serious offences may not be appointed to occupy certain public positions for a period of between five and ten years.
In Spain, investigative phases are conducted by examining magistrates and any public prosecutor has the competency to prosecute corruption cases.
In addition, there is a specialised Anti-Corruption Prosecution Office (Fiscalia Especial contra la Corrupcion y la Criminalidad Organizada). This office is competent to investigate particularly important cases of economic crimes and corruption-related crimes committed by public officials in the exercise of their official duties. It has real investigative capacities accomplished by tax inspectors, auditors and members of the National Police, and the Civil Guard (Guardia Civil). It is composed of 29 prosecutors. The Anti-Corruption Prosecutor’s Office can also intervene directly in any criminal proceeding concerning corruption cases of special importance in the first instance or in appeal. The Attorney General (Fiscal General del Estado) evaluates whether a case is of special importance requiring the intervention or investigation by the Anti-Corruption Prosecutor’s Office.
Concerning administrative bodies, there is no national anti-corruption agency. In this respect, Spain does not have a general anti-corruption strategy. However, some local and autonomous communities have created anti-corruption agencies with investigatory powers, such as the Anti-Fraud Office of Cataluña; the Agency for the Prevention and Fight against Fraud and Corruption of the Valencian Community; the Office for the Prevention and Fight against Corruption in the Balearic Islands; the Accounts Council of Galicia; and the Municipal Office against Fraud and Corruption of the Madrid City Council.
Some of those agencies have only investigatory powers, whereas others can also impose administrative sanctions based on their statutes. For instance, the Valencian Agency can impose administrative sanctions on any person who obstructs whistle-blowers’ actions or provides untrue information.
Regarding administrative offences, the Council of Ministers and the Ministry of Finance and Public Administration are competent to institute disciplinary proceedings and impose sanctions, depending on the position of the offender and seriousness of the offence. The Conflict of Interests Office is competent to investigate in certain cases.
In Spain, prosecutors have limited powers concerning the gathering of information. Prosecutors may start an investigation after receiving a complaint from a private person or an administration, but they may also act ex officio. Following a preliminary investigation, prosecutors have to decide whether to dismiss the case or to refer it to the competent examining magistrate to carry out further preliminary proceedings. In turn, the examining magistrate has a broad range of tools to gather information and documents concerning the offence. In this case, prosecutors may only request the adoption of precautionary measures or investigative measures by the judge.
Spanish criminal legislation does not recognise pre-trial diversion, deferred prosecution agreements or other similar settlement mechanisms. As such, only Article 31 quater of the Spanish Criminal Code provides that the self-reporting of a criminal offence or the collaboration in the investigation are considered as mitigating circumstances.
Although nothing is provided in the Spanish legislation, the prosecutor may offer a more lenient sentence in exchange for the defendant pleading guilty.
Pursuant to the Spanish Criminal Procedure Code (SCPC) guilty pleas apply only if the penalty does not exceed six years of imprisonment. In any case, guilty pleas have to be approved by the competent court. If accepted, the trial does not take place and the court issues a judgment imposing the accepted sentence (Articles 781 and 655 of the SCPC).
Legal entities may plead guilty by nominating a specially designated person with a special power of attorney.
A court may not accept a guilty plea if it considers that the sentence should be higher in the case of minor sentences (Article 655 of the CPC), or to correct the qualification of the crime and impose an appropriate sentence in accordance with the law prior to acceptance of the pleading (Article 787.3 of the SCPC) in cases of prison sentences.
Any bribery and corruption act committed in Spain can be investigated by Spanish authorities.
Moreover, Article 23 of the Spanish Organic Act on the Judiciary (Ley Orgánica 6/1985 del Poder Judicial) establishes the rules for Spanish extraterritorial jurisdiction. Acts abroad may be investigated by Spanish courts if:
For corruption in business and in economic international transactions committed by Spanish citizens or foreigners abroad, extraterritorial prosecution is also allowed if:
Traditionally, Spain has used its extraterritorial jurisdiction to prosecute terrorism, torture, genocide, and crimes against humanity. However, recently, extraterritorial jurisdiction has been used to prosecute corruption and money laundering.
There are several high-profile cases concerning corruption charges in Spain. For instance:
Roberto Macias leaked files involving corruption made by the trade union UGT (General Union of Workers) in Andalucía. In May 2020, he was charged with revealing workplace secrets and sentenced to two years of imprisonment. He was denied immunity as a whistle-blower since Spanish legislation does not provide for this protection.
The Supreme Court has recently confirmed the conviction of the political party “PP” and 29 individuals in the Gurtel case. The political party has been found civilly responsible. The minimum sentence has been five months of imprisonment and the most serious sentence imposed on one of the defendants has been 51 years of imprisonment. The other four defendants’ sentences range between 27 and 40 years of imprisonment. Six defendants’ sentences range between 12 and 18 years of imprisonment. The rest of the defendants' punishments range between six months and nine years of imprisonment.
In the ERE case, the Provincial Court of Sevilla (Audiencia Provincial de Sevilla) convicted 19 out of the 21 of the accused individuals. Two individuals were sentence to nine years of special disqualification. Imprisonment sentences ranged from a minimum of six years to a maximum of seven.
The last OECD report on the implementation of the OECD Anti-Bribery Convention by Spain dated from 2015, when Spain had not yet amended its anti-bribery provisions. Among others, the OECD was concerned by the lack of prosecution-based corruption charges.
In 2019, the Group of States against Corruption (GRECO) of the Council of Europe, monitoring States’ compliance with anti-corruption standards, published two reports evaluating Spain on: i) “preventing corruption and promoting integrity in central Governments (top executive functions) and law enforcement agencies” and ii) “corruption-prevention in respect of members of parliament, judges and prosecutors.” The GRECO noted that Spain was implementing certain recommendations such as the adoption of a Code of Conduct for the members of the Congress of Deputies. However, GRECO recommended reinforcing the regime applicable to top executive functions, the police, and the Civil Guard. The GRECO also recommended that Spanish authorities prioritise the creation of a co-ordinated strategy against corruption.
Additionally, in 2019, Transparency International ranked Spain 30th out of 180 countries with a 62/100 score in its corruption perception index in the public sector.
Finally, in 2018, the European Green Party released the report “The cost of corruption across the EU” which indicated that in Spain corruption costs amount to EUR90 billion annually, representing 8% of its GDP.
Spain, as any other EU Member State, is required to transpose the Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law, by 17 December 2021. The Directive protects persons who report certain infringements of Union law, irrespective of how national law classifies them, whether administrative or criminal. This includes the reporting of anti-bribery and anti-corruption violations. Spain has already started work on preparing this transposition.
It must be noted that, in June 2020, the Spanish Parliament voted down a law proposal on anti-corruption (Ley integral de lucha contra la corrupción y proteccion al denunciante) which established, for the first time in Spain, a legal framework of anti-corruption provisions for both the public and private sectors. Under the regime, whistle-blowers benefited, among others, from an immunity against retaliatory measures carried as a consequence of their reporting.
The law proposal included the following titles:
In addition, in April 2020, the Ministry of Justice started drafting a proposed legislation to amend the Criminal Procedure Code (Ley de Enjuiciamiento Criminal). Among others, it is under consideration to allow prosecutors in the pre-trial stage to carry out judicial investigations without an examining magistrate. Under the current system, the examining magistrate has the power to conduct the investigation and prosecutors may only request the adoption of precautionary measures or investigative measures by the judge.