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Introduction
Asset recovery in cases of bribery and corruption (and other serious fraud cases) often pits criminal law remedies against civil litigation tools.
In common law jurisdictions such as England and the United States, practitioners frequently rely on civil asset tracing and recovery mechanisms – for example, freezing injunctions (Mareva orders), disclosure orders, and civil forfeiture actions – to locate, freeze, and ultimately recover illicit assets.
Spain, by contrast, similarly to other continental jurisdictions, offers an alternative path: leveraging criminal proceedings and the confiscation regime under its Criminal Code (Articles 127 et seq.) to achieve similar results.
This commentary examines how Spanish criminal law provides a viable and functionally equivalent alternative to civil litigation in international asset recovery.
By comparing tools like civil versus criminal freezing orders, exploring Spain’s proactive investigative powers, and highlighting institutions like the Spanish Office for Asset Recovery and Management (ORGA), we argue that Spain’s criminal framework can match the effectiveness of common law civil processes in tracing, freezing, and confiscating illicit assets.
Criminal vs. Civil Asset Recovery: Two Paths
When pursuing stolen or illicit assets, practitioners have traditionally chosen between initiating criminal proceedings or filing civil actions.
In common law settings, civil litigation has been attractive for victims of corruption and fraud because it grants direct control to the victim (now a plaintiff) and can deploy powerful tools like worldwide freezing orders, asset disclosure orders, and trusts or tracing claims.
Civil courts in jurisdictions like England can, for instance, issue a Mareva injunction to freeze a defendant’s assets worldwide, or order third parties (such as banks) to divulge information through Norwich Pharmacal orders – all without waiting for a criminal conviction.
However, civil action comes with hurdles: the plaintiff must fund and prove their case, meet high evidentiary thresholds for interim relief, and often act quickly and ex parte to prevent asset dissipation.
Moreover, civil courts in some jurisdictions (including Spain) are cautious and slow in granting interim asset freezes. In Spain specifically, preventive injunctions in civil cases are difficult to obtain with the necessary speed and typically require the applicant to post a security bond.
By contrast, criminal proceedings empower the state (police, prosecutors, investigating judges) to take rapid action against a suspect’s property without the need for the victim to independently secure relief or guarantee potential damages.
Spain’s legal system, rooted in civil law tradition, integrates the asset recovery process directly into criminal proceedings.
Spanish prosecutors and investigating magistrates can open a case for bribery or corruption and almost immediately seek judicial orders to identify, freeze (embargo), and eventually confiscate assets connected to the offence.
Notably, Spanish law allows an injured party (e.g. a defrauded company or government agency) to participate in the criminal case as a private prosecutor (acusación particular), asserting their rights and claiming damages within the criminal proceeding itself.
This obviates the need for a separate civil lawsuit to recover losses – a stark difference from common law systems where the criminal case focuses on guilt, and victims must often pursue civil claims for compensation separately.
In Spain, the criminal court will adjudicate civil liability alongside the criminal verdict, ordering restitution or damages to victims as appropriate.
Thus, Spanish criminal law offers a one-stop avenue: the same proceeding can establish guilt, restrain and seize assets, and restore those assets (or their value) to victims or the public treasury.
Freezing Assets: Mareva Injunctions vs. Spanish Freezing Orders
A critical early step in asset recovery is freezing assets to prevent their flight.
Common law practitioners often turn to freezing injunctions, such as Mareva orders in English courts, which restrain a defendant from dissipating assets up to a certain value.
These orders can be powerful – for example, a worldwide freezing order from a UK court can bind a defendant’s assets globally – but they come with procedural strictures.
To obtain such an order, a civil plaintiff must show a good arguable case on the merits, evidence of a real risk of asset dissipation, and typically must provide an undertaking (or bond) to cover damages if the injunction later proves unwarranted.
In cross-border situations, enforcing a freezing order in a foreign jurisdiction can require additional steps (e.g. an exequatur in Spain to recognize and enforce a foreign civil order), potentially losing valuable time.
Spain’s criminal procedure provides a roughly analogous tool: the preventive seizure (embargo preventivo) of assets ordered by an investigating judge in a criminal case.
Under the Spanish Ley de Enjuiciamiento Criminal (Criminal Procedure Act), if a person is charged with an offence that may result in monetary penalties or civil liabilities, the judge must take measures to secure assets sufficient to cover those potential obligations (fines, restitution, damages) – often by freezing bank accounts, seizing real estate, or attaching other assets of the accused.
This criminal freezing order is imposed ex parte (without warning to the suspect) and can be effected rapidly at the investigative stage, based on the gravity of the alleged crime and potential liability, rather than the full trial on the merits. Crucially, the court can do so swiftly and without requiring a victim to post a bond, unlike in civil proceedings.
In practice, a Spanish criminal freezing order achieves the same core objective as a common law freezing order: it preserves the asset’s value until a final decision.
For example, in a corruption investigation, a Spanish judge can swiftly freeze bank accounts, register a seizure against real property, or embargo luxury vehicles and yachts owned by the suspect.
These measures prevent the suspect (or colluding third parties) from moving or hiding assets during the trial. Similarly, authorities can impose a prohibición de disponer (prohibition on transfer) over shares or companies to halt any further dissipation.
By the time the criminal case concludes, the assets are safely under judicial control, ready to be confiscated or used to pay fines and compensation. The functional equivalence to civil freezing tools is clear – both aim to stop the money from vanishing – but the criminal route often has the edge in speed and enforcement power within Spain.
Investigative Powers and Proactive Discovery
Effective asset recovery requires knowing what and where to freeze or seize. This is another arena where Spanish criminal proceedings can outperform civil litigation.
In a civil case, even with an asset freeze in hand, a plaintiff may have limited information about the opponent’s holdings.
Common law courts provide some tools for discovery – for instance, an ancillary disclosure order can compel a defendant to list assets, and third-party disclosure (like Norwich Pharmacal orders) can force banks or intermediaries to reveal information.
However, these measures depend on the plaintiff’s initiative and are constrained by what the plaintiff can uncover or persuade a court to order.
By contrast, in a Spanish criminal investigation, the state wields robust investigatory powers that can be deployed to trace and secure assets proactively.
Once a bribery or corruption case is opened, Spanish authorities can: conduct search and seizures of premises, obtain bank records and financial information, intercept communications under judicial supervision, and utilize special techniques like wiretaps or undercover agents. Spain participates in international law enforcement networks that enable cross-border asset tracing.
The Spanish Asset Recovery Office (part of ORGA) can swiftly exchange information with counterpart agencies in other countries.
Spanish criminal procedure allows for compelling testimony and cooperation through plea bargains or leniency for collaborators, which can break open complex corruption schemes and reveal asset trails.
In summary, the proactive discovery powers inherent in criminal enforcement give Spain a potent toolkit to find the needle in the haystack of global corruption proceeds, without relying solely on civil subpoenas.
Confiscation and Forfeiture: Spanish Criminal Code vs. Civil Remedies
Freezing assets is only half the battle – the ultimate goal is confiscation or recovery. In common law, this is often done via (1) a civil judgment awarding damages or (2) civil forfeiture (in rem proceedings against property).
Spain’s Criminal Code (Código Penal), under Article 127, mandates confiscation of the proceeds, instruments, or gains of the offense upon conviction. This includes both direct and substituted assets. Courts are empowered to impose confiscation of equivalent value if original assets cannot be located.
Article 127 bis allows extended confiscation of any assets of illicit origin, even those not directly linked to the crime, when lawful origin cannot be established. Spain’s Article 127 ter enables non-conviction based confiscation in cases where the suspect is deceased, seriously ill, or absconding.
Article 127 quater authorizes confiscation of assets held by third parties who knew or should have known the criminal origin. Thus, the Spanish system reaches not just the immediate fruits of bribery, but also unexplained wealth, proxy-held assets, and assets transferred to shield them from forfeiture.
Institutional Support: The Role of ORGA and Coordination
Spain’s Office for Asset Recovery and Management (ORGA), created in 2015, supports judicial authorities in the localization, administration, and realization of criminal assets. ORGA locates assets both domestically and abroad, assists with preventive and final confiscation, maintains assets, and even arranges early liquidation when appropriate.
As Spain’s national Asset Recovery Office (ARO), ORGA is connected to the EU ARO network and plays a central role in international cooperation, allowing authorities to trace and freeze assets across borders. This infrastructure allows criminal proceedings in Spain to accomplish what a private litigant might need years and multiple jurisdictions to achieve through civil suits.
Victim Compensation and Efficiency Considerations
Unlike common law systems where criminal and civil proceedings are separate, Spain allows the criminal court to award civil compensation directly within the criminal case. Confiscated or recovered assets can be used to satisfy these awards. The victim participates in the criminal case and recovers damages if the defendant is convicted, eliminating the need for separate proceedings.
Conclusion
Spain’s criminal law framework provides a robust and integrated alternative to common law civil asset recovery. Through the use of preventive embargoes, proactive investigation, and a wide-reaching confiscation regime – supported by ORGA and international cooperation – Spain offers a streamlined route to asset recovery in corruption cases.
For international practitioners, especially when assets are located in Spain or involve Spanish defendants, engaging with the Spanish criminal process may provide faster and more cost-effective outcomes than launching parallel civil proceedings.
References
- Spanish Criminal Code (Código Penal) – Articles 127 to 127 octies. Consolidated text available at: https://www.boe.es/buscar/act.php?id=BOE-A-1995-25444
- Ley de Enjuiciamiento Criminal (Spanish Criminal Procedure Act), particularly Articles 334 et seq., regarding provisional measures and asset freezing.
- Regulation (EU) 2018/1805 of 14 November 2018 on the mutual recognition of freezing and confiscation orders. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32018R1805
- Directive 2014/42/EU of the European Parliament and of the Council on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union.
- Spanish Ministry of Justice, ORGA (Oficina de Recuperación y Gestión de Activos) – Annual statistical reports (2018–2022). Available at:
- Spanish Asset Recovery and Management Office (ORGA) official website: https://www.mjusticia.gob.es/es/areas-actuacion/oficina-recuperacion-gestion
- Almacén de Derecho – Ignacio González Vega, El decomiso sin condena penal: principales novedades introducidas por la reforma penal de 2015, 21 April 2016.
Available at: https://almacendederecho.org/el-decomiso-sin-condena-penal - Financier Worldwide Magazine, Bribery and corruption – Q&A: Spain, June 2022.
Available at: https://www.financierworldwide.com/bribery-and-corruption-qa-spain - El Derecho – Commentary on LO 1/2015 amending the Criminal Code regarding confiscation.
Extracts accessible via: https://elderecho.com - Conflict of Laws .net, blog posts discussing Spanish recognition and enforcement of foreign freezing and confiscation orders, including updates on the H Limited judgment and the broader EU context.
Hector Sbert 