New Spanish Criminal Code

Although the new Spanish criminal code that is entering into force on July 1st  2015  dedicates most of its new Articles to internal issues, such as illegal financing of political parties, criminal actions during strikes and demonstrations,  or the imposition of life sentences for very serious crimes or terrorist attacks, some of the new laws might affect foreign nationals and companies.

 

This new penal code substitutes the one approved 20 years ago (November 23rd 1995) and has some new features that should be taken into consideration by those with corporate interests in Spain, tourists and residents from abroad, such as the following:

 

  1. A new law specifies that a citizen of the European Union may be expelled from Spain if they represent a serious threat to public safety. So far this measure could only be applied to foreigners who are not citizens of EU countries.
  2. The age of sexual consent is raised to 16 years of age, instead of the previous 14 years required for having sex being an adult (An exception is provided where there is consent and it is between people of a similar age.
  3. Animal abandonment  will entail the payment of a fine, while for the first time the penal code criminalizes exploitation or abuse of animals, such as in cockfights or dogfights.
  4. Corporate Compliance Programs. Article 33 of the new Spanish criminal code sets forth the 6 elements to be met by a Compliance Program  established by a national or foreign company which would exempt legal entities from being held criminally liable. In Spain, since 2010, an officer or employee of a company can be held personally liable for the following offences:
  • Crimes against privacy and computer trespass (art. 197)
  • Proper and improper scams (art. 251 bis)
  • Punishable Insolvency: uprisings and punishable contests (Article 261 bis.)
  • Computer hacking and damage (art. 264)
  • Crimes against intellectual property (art. 288)
  • Offences against the market and consumers (art. 288), which is a wide are that includes:
    • Discovery and disclosure of company secrets (arts. 278-280).
    • Shortage of raw materials (art. 281).
    • Misleading advertising (art. 282).
    • Fraud investors and credit (art. 282 bis).
    • Mispricing (art. 283).
    • Handling market prices (art. 284.1 and 2).
    • Insider Trading (arts. 284.3 and 285).
    • Illegal access to radio and television (art. 286).
    • Corruption between private business and sports (art. 286 bis).
    • Money laundering (art. 302).
    • Offences Against the Treasury and Social Security (art. 310 bis).
    • Crimes against the rights of foreign citizens (art. 318 bis).
    • Crime on spatial planning (art. 319).
    • Crimes against natural resources and the environment (art. 327 and 328).
    • Offences relating to nuclear energy and ionizing radiation (art. 343).
    • Crimes risk caused by explosives (art. 348).
    • Bribery (art. 427).
    • Trading in influence (art. 430).
    • Foreign Official Corruption (art. 445).
Provided that the Compliance Program has been adopted before a crime is committed by any of its officers or employees and includes the following components:

 

  1. Risk assessment of the crimes that should be prevented.
  2. Standards and controls to mitigate any criminal risk.
  3. Financial management system in place to prevent the economic crimes.
  4. Obligation to report to the Compliance Body any violation of the standards and controls.
  5. Disciplinary system to sanction the violation by officers and employees of the Compliance Program.
  6. Periodical review of the Compliance Program, making the necessary adjustments when serious violations occur or when the company undergoes organizational, structural or economic activity changes.

In addition, the Spanish Criminal Code establishes that any foreign company will need to prove that it’s officers and employees have received proper training on the compliance program, in order for it to be effective.

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Testimonials for Criminal Law
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