On 3 February 2022, Criminal Court 3 of Parla issued a court order setting a bond of €1,552,934.76 for the defendant during the preliminary investigation phase of proceedings in order to meet any financial liabilities given the criminal evidence against him.
In October 2020 a police operation was carried out in the city of Parla, Madrid, where thousands of infringing products counterfeiting several well-known trademarks and machinery for manufacturing these products were seized.
The plaintiffs requested that the court set the defendant a bond in order to meet any possible financial liabilities in accordance with article 589 of the Spanish Criminal Procedure Law.
The Criminal Court 3 of Parla acknowledged that case law arising from the Spanish courts of appeal establishes certain criteria that must be fulfilled in order for a preliminary injunction to be adopted. These criteria, although the same for different areas of law, have particular implications when related to criminal law in order to safeguard the rights of the defendants. The principles are as follows:
- rule of law – the court is not authorised to limit any fundamental right unless authorised by law to do so expressly and in advance;
- prima facie case – in the framework of a criminal procedure, the adoption of a preliminary injunction is only appropriate when rational evidence of a criminal offence exists in relation to any legal asset that requires immediate protection;
- urgency – if the preliminary injunction is not granted, this may cause harm during the course of the procedure, thus preventing the legal protection of the legal asset;
- proportionality – this principle requires the following to be weighed up:
- all the interests at stake;
- the interest of the state in the criminal procedure;
- the interest of those involved in the procedure; and
- the interest of any third parties who might be affected by the preliminary injunction adopted;
- exceptionality and subsidiarity – the preliminary injunction operates as a mechanism that is able to protect the affected legal assets. Further, there must be no other less restrictive measures that would have the same effect; or
- accessory or instrumentality – this is a feature common to all preliminary injunctions given their temporary nature, since preliminary injunctions will subsist only as long as the circumstances that determined their adoption also subsist. The preliminary injunction serves the process; therefore, their evolution will depend on whether the procedure is shelved or acquitted (thus being cancelled) or a condemnatory sentence is achieved (thus being substituted by a penalty or another measure).
The court order stated that, in relation to the prima facie case, there was rational evidence of an IP criminal offence. In particular, the court understood that from the preliminary investigation proceedings carried out, the police entries and registrations, and the huge amount of products seized, there was obvious evidence of a criminal offence.
Therefore, the court deemed it appropriate in this case to set the defendant a bond in order to meet any financial liabilities, since there was criminal evidence against him. The defendant was granted a 20-day term to pay such bond. As this term has now lapsed, if not paid, the Court will obtain the bond by enforcing a recovery.
Article 589 of the Spanish Criminal Procedure Law allows judges to grant a bond whenever enough criminal evidence arises from the preliminary investigation phase of proceedings, in order to meet any financial liabilities deemed convenient. However, when related to IP offences, plaintiffs seldom require this measure during the preliminary phase of proceedings, and they are granted even less often by the judge ex officio. In fact these bonds are normally agreed by the court only when opening the oral phase of proceedings – at a very late stage in the procedure – once the formal written statements of accusation have been filed, as stated in article 783.2 of the Spanish Procedure Criminal Law.
At this stage, however, it can be too late for the injured parties, since they need to have some guarantee that, in the event of a condemnatory sentence for the defendants, they will receive some compensation.
On the other hand, given that criminal procedures sometimes take longer than expected, requesting a bond during the preliminary investigation phase of proceedings may operate as a powerful pressure mechanism for defendants. Indeed, since they are requested to provide a bond, their properties are directly affected, indicating the severity of the situation, since the bond is obtained by means of a recovery should they not grant it voluntarily. This also persuades the defendant from committing further infringements until a possible first-instance condemnatory sentence is issued.
Other criminal courts have also used this measure under similar circumstances. However, as mentioned, this is still rather unusual.
For further information on this topic please contact Ana Ramognino at Grau & Angulo by telephone (+34 93 202 34 56) or email ([email protected]). The Grau & Angulo website can be accessed at www.ga-ip.com.