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Legislation

Spain commits to strictly enforce its asset recovery legislation, including through non-conviction based confiscation, extended confiscation and confiscation from a third party.

Country: Spain

Status: complete

Themes: Asset recovery

Last updated: December 2020

Classification:

Concrete: Somewhat Concrete | New: New | Ambitious: Ambitious

  • 5 Evidence:

    The Office of Asset Recovery and Management 2018-2020 Strategy

    What is the Office of Asset Recovery and Management (ORGA)?

    Commitment 16 as outlined by the Spanish Government - Updates from the Spanish Office for Asset Recovery and Management (ORGA)

    Analysis of non-conviction based confiscation measures in the European Union

    Recent paper of the European Commission analysing the Transposition of the Objectives and main elements of Directive 2014/42/EU could be used as evidence

  • 3 Notes:

    The confiscation of criminal proceeds is an essential component of the fight against serious and organised crime, since it deprives criminals of their financial gains and ensures that crime does not pay. The asset recovery process includes several phases:

    • identification and tracing of the illegally acquired assets;

    • freezing and seizure of the assets with a view to their possible subsequent confiscation;

    • management of frozen and seized assets to preserve their value;

    • confiscation of the illegally acquired assets;

    • disposal of the confiscated assets, which could include their reuse for public or social purposes.

    In 2014, the European Parliament and the Council adopted Directive 2014/42/EU (‘the Directive’), which sets minimum rules for the freezing, management and confiscation of criminal assets. The Directive introduced a number of new and advanced asset recovery measures including the provisions on non-conviction based confiscation (at least if the accused or suspected person absconds or is ill). Spain was one of the 8 countries that transposed the directive by the deadline of 2016, and is listed as having some level of NCBC.

    Article 10(3) requires the Member States to consider reusing confiscated property for the public interest or social purposes. Spain has legislation on this, which makes a strong case for compensation of victims of some sort.

    Spain has a conviction-based system, which nevertheless includes some elements of non-conviction based confiscation. Spanish legislation foresees non-conviction based confiscation of assets and instrumentality in case of death, illness, absconding, prescription of criminal responsibility and exemption thereof (Article 127 ter). Legislation also foresees in absentia proceedings in case of non-conviction based confiscation due to death, illness and absconding of the suspect or accused person. This legislation would correspond to Models 1 and 2.

    Updated: October 31, 2020

    Spain has non-conviction based confiscation of assets (confiscation of assets without a criminal conviction) under its legal framework. This is managed by ORGA , the Office of Asset Recovery and Management. More in-depth information is to be found in the 2018-2020 ORGA action plan.

    Updated: April 30, 2020

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