Our experienced teams can support you with:

• All Criminal charges
• Road traffic offences
• All cases in the Tribunal Superior de Justicia, Audiencia Nacional and Tribunal Supremo in Spain
• Health and Safety Executive prosecutions
• Local Authority prosecutions
• VAT frauds and offences
• Advice and attendance at police stations in the UK and Spain

At Scornik Gerstein LLP we understand that the stakes in a criminal case are higher than in any other area of the law. Thus, it is vital to have a sound knowledge of the operation of the legal system confronted and, most importantly, the language that is being spoken.

This is why the firm is committed to providing an excellent service to English speaking clients who are subject to criminal proceedings in Spain, whether they are acting as plaintiffs or defendants. Our criminal team offers expert advice on all sorts of offences, ranging from speeding and drink driving to fraud, environmental crimes, sexual abuse and bodily injuries, amongst others.

During the investigation stage all evidence, including police documents and witnesses' statements, will normally be released to the relevant parties - but not to the public. A judge can, nevertheless, in exceptional cases, e.g. those involving state security, severely restrict the access to papers, stating that the investigation shall be declared secret. This exception can only last 30 days, although it can be renewed on a monthly basis.

The Preliminary phase may last up to 6 months in ordinary cases, and up to 18 months in those cases classified as being of a “complex nature”. Cases involving international elements will normally be considered to belong to the latter category. In any case, both sorts of proceedings may be extended for a further 6 or 18 months’ period. In practice however, this phase can last years to conclude.

Once the investigation activities have been carried out, the Investigative Court will issue one of the following orders:

1. Declaring that the offence has not been committed or that the identification of the culprits was impossible and ordering the closure of the file;
2. Declaring that there is enough circumstantial evidence of the commission of the crime and the identification of the culprits to proceed.

Trial stage:

If it has been decided that there is enough evidence to proceed, the case will be allocated to the Criminal Court (Juzgado de lo Penal) that will deal with the trial stage of the proceedings. In cases where the maximum penalty prescribed by law is five years’ imprisonment or less, the competent Court for the Trial will be the local Criminal Court (Juzgado de lo Penal), and in cases where the maximum penalty is over five years, the appropriate Provincial Court (Audiencia Provincial).

However, serious cases which are deemed to be crimes against the State (i.e. major drug trafficking and certain monetary offences), crimes committed abroad by Spanish citizens or crimes in which there is an universal jurisdiction principle (genocide, crimes against the Humanity, extradition hearings etc) are dealt with by the Central Courts at the National Court (Audiencia Nacional) in Madrid. On a set of specific crimes, trial by jury may also be ordered, although this case is certainly less common in Spain than it is in England.

Trials held at a Juzgado de lo Penal are heard by a single professional Judge and legal representation for the accused is mandatory. Those held at the Audiencia Provincial or the Audiencia Nacional are heard by a panel of three professional Judges and legal representation for the accused is again mandatory. If the accused declares that they cannot afford a representative, the state will provide one.

Denuncia:

This is a formal complaint whereby a person reports to the authorities a criminal offence that he or she has witnessed. Reports can be made before the police, Public Prosecutor or Courts and they can be oral or in writing.

Reporting a crime is an obligation of all citizens. Victims and anyone who witnesses a crime have the duty to report it to the authorities. Nonetheless, those reporting the events will not become parties of the criminal proceedings that may start. Essentially, this means that they will not be notified of the investigative proceedings and/or any decisions made on the case. However, they may still be required to attend Court to file witness statements and be subject to expert analysis; and they may receive compensation if applicable, depending on the outcome.

Querella:

This is the act of lodging a lawsuit against a person or company for the commission of a criminal offence. They are subject to more formal requirements than denuncias: for instance, they can only be submitted in writing by a Spanish abogado and procurador (court assistant) and they must be filed before the competent Court.

Lodging a lawsuit is not an obligation: the submission of a querella is a right of the victim, who may only submit it if he or she wishes to automatically become a party of the proceedings - obviously, on the accusation side - alongside with the Public Prosecutor.

1. The offence must have been committed under the company’s name or on its behalf and,
2. The company must have obtained some gains as the offence’s result and,
3. The author of the offence must be a company’s legal representative or a person under the supervision of the latter and,
4. The company must have failed to comply with the required control and supervision standards.

When found guilty in accordance with the requirements above, companies may be sentenced to the payment of fines, suspension of activities and be banned from trading, amongst other penalties.

Further amendments were introduced by the Organic Law 1/2015. According to the new regulations, companies may be exonerated if they can prove that:

1. The company has a sound corporate compliance programme in place and,
2. The company has appointed a compliance officer to be in charge of the supervision of the said compliance programme and,
3. The offenders have unlawfully avoided controls and supervision and,
4. The company has not failed to exercise the appropriate controls and supervision.

While all the facts explained above may seem to be fairly vague, it is worth noting that on 29 February 2016 the Spanish Supreme Court declared a company to be criminally liable for the first time, finding that it was a key element of an organisation whose main goal was the smuggling of cocaine from Venezuela into Spain.

Facing all these developments, Scornik Gerstein LLP has expanded its areas of expertise to adapt the firm to the rapidly changing world of economic and financial crime. The firm offers legal assistance to companies wishing to establish corporate compliance programmes in accordance with Spanish law, and we also provide advice and representation to legal persons subject to criminal proceedings.

The United Kingdom’s legislature effectively implemented the Framework Decision through the amendment of the Repatriation of Prisoners Act. Thanks to its provisions, many British citizens sentenced to a term of imprisonment abroad have been given the opportunity to be transferred from the countries where they were convicted and imprisoned back to the UK to serve the rest of their sentence in their own home country.

In order to be eligible for transfer, applicants must be British citizens or with close family ties to the UK (e.g. permanent residence). The sentences being served must be imposed by final judgment, meaning that there is no room for any appeal to be lodged and it is normally required that six months of the sentence still be left to be served when the application is made. In addition, the offence for which the offender was convicted abroad must also be a criminal offence in the UK.

All the preliminary steps to apply for a transfer must be initially completed by the Spanish authorities. Once the preliminary stage has been completed, proceedings will be referred to the British Cross Border Transfer Section. Therefore, British authorities may take control of proceedings and intervene in favour of transferred prisoners only once the Cross Border Transfer Section has received the application, and not before.

Scornik Gerstein LLP has successfully transferred Britons from Spain to the UK developing a proven track procedure.