The Constitutional Court has declared that hidden camera documentaries contravene the Constitution by breaching the right to personal privacy and one's own image. Despite this type of documentary being aired for many years in Spain, this is the first time that the Constitutional Court has had the chance to analyse the legal dilemmas surrounding this controversial method of journalism.
Amendments to the Criminal Code were recently published in the Official State Gazette, making changes to the regulations regarding criminal liability of companies. The most significant change is the new importance attributed to compliance programmes, which – where appropriately designed and executed – could not only mitigate (as has been the case until now) but even exempt companies from criminal liability.
The Supreme Court recently confirmed that under Spanish law, the Spanish courts have jurisdiction "over the cases foreseen in international agreements" applicable to piracy, terrorism, drug trafficking, human trafficking, smuggling of migrants and offences against safe navigation committed in marine areas. The international agreement need not expressly grant jurisdiction to Spain, but need only foresee the relevant criminal conduct.
More than 45 criminal proceedings have been launched based on information obtained from the Falciani lists, created from data allegedly stolen from HSBC Private Bank (Suisse) by Hervé Falciani. However, the Spanish courts have not yet analysed whether the use of the information included in the lists as evidence for the prosecution is constitutionally acceptable within the framework of criminal proceedings.
In 2002 the vessel Prestige sank 138 nautical miles off the Spanish coast, spilling 63,000 tons of fuel oil into the sea. The Criminal Provincial Court of A Coruna acquitted all the defendants of criminal offences against the environment. However, an appeal is pending before the Supreme Court; should the judgment be confirmed, the victims would still have legal avenues open to them in order to seek compensation for damages.
The Criminal Code establishes the possibility of punishing legal persons which have been held liable for criminal offences with a prohibition on entering into contracts with the public administration. Given the political climate in Spain, and with the public increasingly calling for tougher punishment for corruption, it is likely that the courts and public administration will impose this penalty more often.
The Council of Ministers has drafted a preliminary bill which would introduce a number of amendments to the Criminal Code, including a new criminal offence of unlawful administration. The bill focuses on creating a new independent criminal offence that encompasses misconduct taking place both within and outside the scope of an administrator's competence.
The Organisation for Economic Cooperation and Development (OECD) Working Group on Bribery has adopted the Phase 3 Report on Implementing the OECD Anti-bribery Convention in Spain. The working group expressed its serious concerns that, almost 13 years after the entry into force of the Spanish foreign bribery offence, no individual or company has yet been prosecuted or punished under this offence.
The Organic Law Amending the Spanish Criminal Code on Transparency and Combating Tax and Social Security Fraud was recently passed. For the first time in Spanish law, political parties and unions will be subject to criminal liability in the same way as private legal persons. In addition, the new law sets down ways in which liability for tax fraud can be considerably reduced.
Legal reforms introduced at the end of 2010 played a significant part in regulating the criminal liability of legal persons for the first time in Spanish law. The general public prosecutor has since circulated interpretive guidelines in this area. Among other things, they specify the activities for which legal persons may be held liable, clarify the penalties to which they may be subject and address the issue of mitigation.