An extract from The Asset Tracing and Recovery Review, 8th Edition

Seizure and evidence

i Securing assets and proceeds

Although criminal procedures have several disadvantages (e.g., length of the procedure or the need to overcome the presumption of innocence), the powers entailed in securing a defendant's assets are extensive and relatively swift. Criminal procedures allow the court to act promptly by issuing, inter alia, the attachment or freezing of assets, which is not possible in civil proceedings. Certainly, a victim may request securing and freezing orders by way of injunction in civil actions, but injunctions tend not to be obtained in Spain with the necessary speed. Moreover, those who do obtain them must generally post bonds to secure any damage that may be incurred in the event of an unwarranted claim.

The Criminal Code has mechanisms that are intended to provide more effective legal instruments for the recovery of assets from crime, and for the economic management of them. In this regard, the Criminal Code follows the European Directive 2014/42/EU of 3 April on the freezing and confiscation of assets and the proceeds of crime in the EU.

These mechanisms are confiscation without trial; confiscation expanded to assets not particularly related to the criminal activity for which a procedure is initiated; and confiscation of the property of third parties. In all these types, cases are extended to allow more effective securing of property.

The Criminal Code also allows the possibility that, in cases in which the confiscation of property or proceeds of crime is not possible, the judge can determine an amount that shall be authorised for confiscation.

Finally, the Office of Recovery and Asset Management for conservation, performance or use of seized goods is a governmental agency established to cooperate with the courts, the public prosecutor and those countries that seek assistance from the Spanish authorities.

Plaintiffs can also request and obtain injunctions without hearing the defendant, even if the competent jurisdiction is that of the courts of another state. Once granted, in the event that a party has not previously started relevant proceedings on the merits before the competent jurisdiction, that party must produce evidence of the filing of a claim in the competent state within 20 days of an injunction being granted.

To apply for and obtain an injunction, it is necessary that the applicant has a presumed right to obtain the injunction. Therefore, the law does not require an exhaustive test of law; it is sufficient to establish an appearance of sufficient rights. It also must be proven that were the injunction not granted, there is some risk that the assets would disappear by the time a future judgment is enforced.

The main obstacle to overcome is time, because the success of an injunction will depend on how quickly it is granted. In these circumstances, the criminal jurisdiction is more effective than the civil jurisdiction.

ii Obtaining evidence

Obtaining evidence in criminal matters is carried out at first by the judicial police at the request of both the investigating judge and the public prosecutor. A private prosecutor may also request the taking of evidence from the investigating judge.

The Criminal Procedure Act provides that evidence must be produced at trial. However, it is during the period of investigation that the evidence that will be used to support the charges must be obtained. Since the crimes related to fraud are public, each party is obliged to cooperate with the investigating judge in obtaining evidence. This also applies to third parties, who may face criminal charges in the event they refuse to cooperate. In these circumstances, even banks cannot justify avoiding the provision of evidence to an investigating judge on the grounds of banking secrecy.

In civil cases, the parties are required to disclose all evidence in their possession at the request of the other party, so there is a duty of disclosure. Third parties, however, are not obliged to provide evidence unless the court issues an order to that effect, provided they do not violate rights such as privacy or confidentiality. In civil proceedings, evidence is obtained in different stages. Documentary evidence must accompany the statement of claim and defence, and producing documentary evidence after this stage is allowed only in very few cases. As a rule, expert evidence must also be submitted with the claim or defence, but its production by defendants is allowed at a later stage in some cases. The rest of the evidence has to be produced at trial.

Evidence must be relevant and be directly related to what it is intended to prove. Therefore, judges may reject evidence they consider redundant or irrelevant. Evidence obtained in breach of constitutional rights will also be rejected.