Primary anti-bribery legislation and enforcement agencies
Criminal Code
Investigating and Prosecuting agencies: Anti-Corruption Prosecution Office as well as any prosecutor o judge
Offenses
Public Bribery (private to public):
Bribery can be committed by private individuals who try to corrupt a public official (active bribery) and by the corrupted public officials (passive bribery).
Bribery occurs whenever a public servant or authority receives or is offered a reward to: (1) carry out an act or omission breaching the duties required of his or her position; or (2) carry out any act relating to the performance of his or her duties. The offense can take the form of ‘passive bribery,’ where the initiative to commit the offense originates with the public official or authority (i.e., soliciting a bribe), or ‘active bribery,’ where the bribe is offered at the initiative of the individual paying it. To be punishable, it is necessary that such acts be committed maliciously, that is to say, intentionally.
Private Bribery (private to private):
As in the case of public bribery, the offense requires the act of offering, promising, giving, soliciting, accepting or receiving an unjustified benefit or advantage that, in this case, must be intended to secure preferential treatment in the acquisition or sale of goods or in hiring professional services, in breach of the recipient’s obligations.
Penalties
Public Bribery (private to public):
1. For individuals
The Spanish Criminal Code foresees the same penalties for corrupted public officials and for private individuals that corrupt public officials.
- Imprisonment for a period of six months to six years
- Daily fine (from a minimum of EUR2 to EUR400) the amount of which will depend on the accused party’s wealth and which may apply for 12 months to 24 months
- Disqualification from holding public office or employment for a period of seven years to 12 years
2. For legal entities
- A daily fine the amount of which will depend on the legal entity’s assets and which may apply from six months to five years (from a minimum of EUR30 to EUR5,000 per day), or up to five times the profit obtained, if such amount was higher
- Dissolution of the legal entity
- Suspension of its activities for up to five years
- Closure of premises and establishments for up to five years
- Temporary (up to 15 years) or indefinite prohibition to carry out the activities that have led to a crime
- Prohibition (up to 15 years) to benefit from public subsidies, enter into contracts with the public sector, or benefit from tax and social security incentives or benefits
- Judicial intervention for an unlimited time of all or part of the activities of the legal entity to protect general interest and employees
Private Bribery (private to private):
1. For individuals
- Imprisonment (for six months to four years)
- A fine amounting from the value of the illicit benefit or advantage to three times the said value
- Disqualification from the right to carry out an industrial or commercial activity (from one year to six years)
2. For legal entities
- Daily fine of up to five years
- Publication of the court judgment in the corresponding official gazettes and, if the victims so request, in the general newspapers
- Dissolution of the legal entity
- Suspension of the activity of the legal entity for up to five years
- Close-down of the legal entity’s facilities for up to five years
- Temporary (up to 15 years) or indefinite prohibition to carry out the activities that have made it possible for the crime to be committed
- Prohibition of up to 15 years to benefit from public aid, enter into contracts with the public sector, or benefit from tax and Social Security incentives or benefits
- Judicial intervention for an unlimited time of all or part of the activities of the legal entity to protect the interest of the general public and the employees of the legal entity in particular
Defense
Value of a compliance program to mitigate/eliminate the criminal liability for legal entities
Compliance programs are regulated under Section 31 bis paragraph 2 of the Spanish Criminal Code. To benefit from such exemption of liability, the legal entity will need to prove the following:
- The directors have adopted and executed in an efficient manner a compliance program.
- The functioning and supervision of the compliance program have been bestowed to a body of the legal entity with independent powers of initiative and control, or which has legally entrusted with the power to supervise the internal controls of the entity.
- The individual authors have committed the criminal offense while fraudulently eluding the compliance program.
- There has been no omission or insufficient exercise of the supervision and control functions by the abovementioned body
Additionally, Section 31 quáter considers as mitigating circumstance the adoption by the legal entity (once the offense has been committed) of one or more of the following actions:
- Confession to the criminal offense to the relevant authorities before any investigation is initiated
- Collaboration with the investigation by providing key evidence or information to solve the case
- Mitigation of damages caused as a consequence of the offense before the trial hearing takes place
- Implementation of a compliance program before the trial hearing takes place
Elements of a Compliance Program:
Legal framework
The Spanish Criminal Code sets out the requirements that a compliance program must have for a legal entity to avoid criminal liability. A compliance program must:
- identify the activities in which the offenses to be prevented can happen (risk assessment);
- establish the protocols or procedures defining the legal entity’s decision-making process and the execution of such decisions;
- implement adequate financial management models;
- impose the obligation to report potential risks and breaches to the body in charge of supervising compliance with the prevention model and its functioning;
- establish a disciplinary system to appropriately punish any breaches of the measures established by the model; and
- impose a periodic verification and, if necessary, amendment to the model when there have been significant violations of its provisions, or when organizational changes take place in the control structure or activity developed by the entity.