Private prosecutions: the participation of the victim in Spanish criminal proceedings

Although the “natural” accusing party in Spanish criminal proceedings is the Public Prosecutor’s Office, the victim of fraud can – and in fact does so in a large majority of cases – actively intervene in such proceedings as private prosecutor.

Thus, except in cases where the investigations are declared secret, the victim and es empowered to intervene in the proceedings on an equal footing with the other parties, including the Public Prosecutor’s Office. 

The victim is thus allowed to obtain full knowledge of the actions and to propose all kinds of investigative measures, as well as to request any precautionary measures of a personal and economic nature, including the tracing and the freezing of assets sufficient to cover the hypothetical civil liability derived from crime, or the confiscation of such assets, where appropriate.

The role of the Public Prosecutor’s Office in Spanish criminal proceedings

Notwithstanding the importance of private prosecutions, the Public Prosecutor’s Office has, according to Spanish law, the obligation to exercise all the criminal actions that it deems appropriate, regardless of whether or not the victim has appeared in the proceedings.

Likewise, Spanish law expressly indicates that civil action must be brought together with criminal action by the Public Prosecutor’s Office, unless the victim has waived his right to compensation.

On the other hand, the determination and precautionary freezing of sufficient assets to cover the payment of all and any civil liabilities derived from crime constitutes another of the missions of the investigative phase of the criminal proceedings. 

The processing of judicial proceedings aimed at this objective is carried out by applying the appropriate economic precautionary measures to cover all the corresponding economic liabilities, including costs and fines.

The Spanish General Public Prosecutor’s Office has recalled the importance of the procedural activity to be carried out in relation to this matter and the need to adopt, from the beginning of the investigation, the precautionary measures necessary for the economic and social protection of the victim.

Thus, it is an obligation of the Public Prosecutor to promote before the investigating Court the exhaustive asset tracing of the debtor to ensure the payment of all and any civil liabilities.

Asset tracing and recovery necessary to cover civil liabilities derived from crime

According to Spanish law, civil liabilities derived from crime cover all or some of the following items, depending on the circumstances: (i) the restitution of the defrauded assets; (ii) the repair of the damage; and (iii) the compensation of the material and moral damages.

Asset tracing and recovery in this respect consist of a civil action that Spanish law allows to exercise in the criminal proceedings itself, both by the Public Prosecutor’s Office and by the victim, or by the party that has been economically harmed by the crime. 

This aspect of criminal asset tracing and recovery employs the same means as those foreseen in civil proceedings and which we will study in further detail below:

• The debtor’s assets disclosure obligation.
• The Court’s official asset tracing methods, usually through electronic means.
• The mandatory cooperation from third parties, including banks and the Spanish tax authorities.

The tracing of the assets used to commit the crime and the profits resulting from it, for the purpose of their confiscation

The tracing of assets related to criminal activity is considered an effective formula to counteract the progressive proliferation of increasingly complex illegal behaviours (large scams, tax offences, activities related to corruption), many of them carried out by organised groups, whose activities in many occasions have cross-border implications. 

For this purpose, Spain (along with an increasing number of jurisdictions), following the guidelines established by the international fora that have addressed these issues, has developed a comprehensive regulation, both preventive and punitive, on money laundering.  This is complemented with the criminal characterization of various conducts that threaten the socio-economic interests of modern societies, as well as with the establishment of new criminal investigation techniques and various legal instruments aimed at international cooperation in the seizure and confiscation of benefits derived from criminal activities.

Asset confiscation

Under Spanish law, the confiscation of assets is possible in the case of intentional crimes, or when the assets belong to a person convicted for, among others, one of the crimes included in the following list:

• Computer-related crimes.
• Criminal fraud and crimes against the socioeconomic order, in cases of criminal continuity and recidivism.
• Offences related to fraudulent insolvencies.
• Crimes against intellectual or industrial property.
• Corruption among private parties.
• Handling of stolen goods.
• Money laundering.
• Tax and Social Security offences.
• Bribery crimes.
• Embezzlement crimes.
• Offenses committed within a criminal organisation or group.

On the other hand, for the purposes of confiscation, the Court must determine that the assets derive from criminal activity, although it will suffice if the convicted person does not prove their effective lawful origin.

Furthermore, it is noteworthy that Non-Conviction Based Confiscation is also available.

The Asset Recovery and Management Office (“ORGA”)

Confiscation frequently occurs through the intervention of the Asset Recovery and Management Office (“ORGA”, as per its Spanish acronym).  This is an administrative body under the Ministry of Justice whose tasks are the tracing, recovery, conservation, management and realisation of assets in connection with criminal activities.

The mission of ORGA is threefold: first, it is an instrument for the tracing of assets related to criminal activity; second, it has the necessary technical and legal means to manage and realise the seized assets; and third and mainly, it constitutes the appropriate channel for MLA with similar Offices in other jurisdictions, so as to ensure asset tracing and recovery, regardless of where the offenders may have placed those assets.

The ORGA only acts by virtue of a judicial order, either acting “ex officio” or at the request of a party, including the Spanish Public Prosecutor’s Office.

In turn, when necessary, the ORGA may request the collaboration of any public and private entities, which will be obliged to cooperate in accordance with its specific regulations.

The product of the realization of the assets will be applied to cover the costs and expenses caused in the conservation of the assets and in the procedure of realization of the same.  The remaining part will be affected to the payment of civil liabilities and legal costs declared in the procedure.

Parallel proceedings: a combined civil and criminal approach

The victim of criminal fraud has three possibilities: (1) to start a criminal and a civil action within the same criminal proceedings; (2) to start a criminal action in the criminal proceedings and reserve its civil action for a subsequent civil proceedings; and (3) to start a civil action within the criminal proceedings, provided that another party (typically, the Public Prosecutor) pursues a criminal action in the same proceedings.

However, it is generally not possible for the victim to follow parallel civil and criminal proceedings based on the same facts, if the facts that form the basis of the criminal proceedings can have a decisive influence on the resolution of the civil lawsuit.  In such situations, the civil proceedings will be stayed at the time the first instance judgment has to be rendered, pending the outcome of the criminal process.  This situation is known as “criminal prejudiciality”.

In any case, the possibility of following parallel criminal and civil proceedings does not make much sense under Spanish law, for the simple reason that, as previously noted, Spanish criminal proceedings allow the use of all asset tracing tools available in civil proceedings, as well as the intervention of the ORGA the use of precautionary measures of economic nature, necessary to ensure the availability of the debtor’s assets during the course of the proceedings.  In addition, as also mentioned above, Spanish law allows for a broad participation of the victim in criminal proceedings, in practical equal footing to the Public Prosecutor’s Office.

Cross-jurisdictional cooperation

International law

Spain has ratified the following international agreements that establish mechanisms for MLA, within the scope of each Convention, regarding very significant matters such as information sharing, taking of evidence (even bank, financial or commercial records), freezing of assets and evidence, asset recovery, confiscation and disposal of confiscated proceeds of crime or property, among others:

• United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, made in Vienna on 20 December 1988.
• International Convention for the Suppression of the Financing of Terrorism, made in New York on 9 December 1999.
• United Nations Convention against Transnational Organised Crime, made in New York on 15 November 2000.
• United Nations Convention against Corruption, made in New York on 31 October 2003.
• Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, made in Strasbourg on 8 November 1990.
• Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, made in Warsaw on 16 May 2005

EU Law

Spanish Act no. 23/2014, of 20 November 2014, of mutual recognition of criminal judgments in the European Union, has merged into one single piece of national legislation of all existing European mechanisms of mutual recognition of criminal judgments. 

Among other matters, the Act regulates, in cross-border cases within the EU: 

• the preventive freezing of those assets subject to a subsequent confiscation order or to be used as evidence in Court; 
• the enforcement of judicial confiscation orders, that can be sent simultaneously to several EU countries if there were doubts with regard to the location of the assets; and 
• the transmission and enforcement of the European Evidence Warrant (“EEW”), to obtain objects, documents or data for its use as evidence in criminal proceedings, including information on assets.

Mutual recognition of criminal decisions in the EU and international cooperation regarding freezing and confiscation of assets have been clearly reinforced by the creation of the ORGA and its coordination with its counterparts in other countries.  The ORGA may exchange information with other State entities with specific competences on asset tracing and recovery, when appropriate and in the exercise of their duties.