CMS Expert Guide To Mandatory Reporting Of Criminal Offences For Companies And Their Responsible Persons in Spain

A distinction must be made between purely public crimes and private or semi-private crimes. Public crimes are those that are prosecuted ex officio, without the need for a complaint or lawsuit. On the other hand, private crimes are those that require the filing of a lawsuit. Between these two categories are semi-public crimes, which require a complaint from the aggrieved party or their legal representative in order to be prosecuted.

This distinction is important because -although some exceptions apply – articles 259, 262 and 264 of the Spanish Criminal Procedure Act obliges to immediately report public crimes to the pertinent Authorities.

Also, it must be highlighted the Spanish Law 2/2023, that extensively regulates whistleblowing systems, the protection of whistleblowers, among other related topics. This regulation requires for whistleblowing system management procedures the immediate referral of information obtained through the system to the Public Prosecutor's Office when the facts could constitute a crime. If the facts would affect the financial interests of the European Union, they shall be referred to the European Public Prosecutor's Office.

According to the provisions of articles 259, 262 and 264 of the Spanish Criminal Procedure Act, offence should be reported by:

1. the person who witnessed the perpetration of the public crime (art. 259)
2. the persons who, due to their position, professions or trade have knowledge of the public crime (art. 262), and
3. anyone that by any means other that those mentioned, becomes aware of the perpetration of any crime that must be prosecuted ex officio (art. 264).

Offence should be reported to the Investigative Judge or to the Public Prosecutor but also, depending on the article, other authorities are foreseen to be reported such as the police, the competent Court, the municipal Court, the peace Judge or the local Judge.

Finally, when the facts (that could constitute a crime) had been informed through the company whistleblowing system, Spanish Law 2/2023 requires to immediately report them to the Public Prosecutor's Office (or to the European Public Prosecutor's Office if they would affect the financial interests of the European Union). Spanish Law 2/2023 does not specify who in the company must report such facts to the Public Prosecutor, and due to the recent enter into force of this law, for the time being there is not any specific case law nor judiciary resolutions thereof.

As foreseen by the Spanish Criminal Procedure Act, failure to report a public crime shall entail fine from 25 up to 250 pesetas (EUR 0.15 – EUR 1.50). In addition, as foreseen by art. 262 (omission to report by persons who, due to their position, professions or trade have knowledge of the public crime) other responsibilities may rise due to the omission according to the applicable laws.

In addition to the above, failure to report those facts (received by means of the whistleblowing system) that could constitute a crime, shall be considered a breach of the Spanish Law 2/2023, which would entail financial penalties for the responsible individuals and for the responsible legal entities (even if this breach may be considered a minor breach, it could not be categorically excluded that this could be considered a serious or very serious violation, that would potentially entail increased penalties).

Reporting a criminal offence to the Authorities should not entail any specific responsibility, except those corresponding to the criminal offences that may have been committed by means of such report, or on the occasion of such report.

However, under certain circumstances, reporting a criminal offence by a legal entity may rise a criminal proceeding that could involve such entity. In this regard, the obligation to report criminal offences by the company may potentially rise its own criminal liability in those cases when the legal entity is responsible of the criminal conduct (e.g. criminal conduct included in the list of those that may rise criminal liability of legal entities, committed by the company employees / directors, on behalf of the company, resulting in the benefit of the company, etc.), as foreseen by art. 31 bis.1 of the Spanish Criminal Code. In addition, potential civil liabilities may also rise as a consequence of such potential criminal liability.

In addition to the explanations above, anyone that has knowledge of a criminal offence committed and, without having intervened in it as a perpetrator, subsequently intervenes in its execution, in any of the following manners, shall be criminally liable:

1. Aiding the offenders or accomplices to benefit from the gains, product or price of the criminal offence, without intending personal profit
2. Hiding, altering or destroying the evidence, effects or instruments of a criminal offence, to prevent it being discovered
3. Aiding the suspected criminals to avoid investigation by the authority or its agents, or to escape search or capture, under certain circumstances.