Practices  |  

About us   |  

Blog  |  

Contact

                                                                                                                                                                  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •  •

 

Blog

27 July 2017

 

 

Recent criminal convictions against legal entities

 

Following the reform put into place by Organic Act 5/2010, of 22 June 2010, which introduced into Spanish law the criminal liability of legal entities, the Spanish Courts have ordered various convictions against different legal entities for their participation in criminal activities. 

 

 

Click here to read the complete article. 

 

6 April 2017

 

Supreme Court Ruling 222/2017 of 29 March: Legal Costs of the Private Prosecution

 

The Supreme Court upholds an appeal for reversal filed by Sánchez-Cervera Abogados involving the legal costs of the private prosecution.

 

Click here to read the complete article.

 

1 March 2017

 

Moral damages resulting from offences of a patrimonial nature

 

You can download from the link below an article that deals with the requirements under Spanish law for granting moral damages resulting from offences of a patrimonial nature:

 

Moral damages resulting from offences of[...]
Documento Adobe Acrobat [504.2 KB]

2 January 2017

 

Access by the defense to case files declared secret

 

Having access to the materials of a case to which our client is a party is unquestionably important, including where a case has been declared secret and pre-trial detention has been ordered. Otherwise, the possibilities for defense against such a grave precautionary measure could be seriously undermined...

 

Click here to read the complete article.

 

 

17 October 2016

 

Extradition: Simultaneous criminal proceedings against different persons for the same events 

 

In the recent decision of 16 September 2016, the Supreme Court upheld the judgement in a jury trial case issued by section three of the Madrid appeals court and upheld by the Madrid High Court of Justice in which the defendant was convicted of crimes of falsifying public documents and murder.

 

The criminal investigation began when the person under investigation was extradited to Spain and concluded with a conviction by a jury of the crimes of falsification of public documents and murder. A separate case had been brought months earlier against another person who had been under investigation for the same events. In that case, the defendant was exonerated.

 

In their appeal for reversal, the defendant’s legal counsel argued that their client had not been included as a defendant in the previous proceedings against the other accused who was ultimately exonerated, arguing that the outcome should have been the same for his client, that is, that he should have been acquitted.

 

One of the most relevant points of this supreme court ruling can be found in the affirmation that “There is no constitutional right that guarantees the same outcome for all defendants charged in a case by the office of the public prosecutor."

 

The high court emphasises another important point when it affirms that: "a criminal investigation that begins when a suspect is extradited to Spain can be conducted at the same time as a separate criminal case in which the presiding judge has already committed the case for trial but the oral proceedings have not yet begun”. 

 

What is important about this ruling, therefore, is the fact that it allows for legal proceedings to be initiated simultaneously with other proceedings previously brought against a different accused party for the same events, if the first case has already been committed for trial and the accused is awaiting trial. 

 

The full text of the ruling is available here.

 

 

15 September 2016

 

Judgement declaring the minimum interest rate clause of a loan agreement null and void

 

Sánchez-Cervera Abogados has successfully represented a client in a lawsuit against a financial entity (today part of Liberbank) requesting the Courts to declare the so-called “mortgage-floor clause” of the client`s home-loan agreement null and void. This clause established a minimum yearly interest rate of 4 per cent (much higher -at current rates- than the agreed variable rate of Euribor plus 1.5 points). In a ruling on 19 September 2016, the Civil Court no. 7 of Guadalajara fully allowed the claim and ordered the financial entity to reimburse the client all amounts paid in excess of the agreed variable rate with retroactive effects since 9 May 2013 (the date of the famous judgement of the Spanish Supreme Court declaring the nullity of similar clauses). The defendant is also ordered to pay interest and the legal expenses of the claimant. Click here to download the judgement (in Spanish):

 

 

Sentencia cláusula suelo.pdf
Documento Adobe Acrobat [615.2 KB]

 

7 April 2016

The ECHR again finds against Spain for refusing the accused a hearing in an appeal

 

On the 29th of March of 2016 the European Court issued a judgment against Spain considering that the Spanish Courts did not held a fair trial because they did not hold a public hearing before convicting the defendant at second instance after he had been acquitted at first instance.

 

The European Court condemned Spain in the past for the same reason, as this judgements violated the European Convention on Human Rights, and the right to a second criminal hearing recognized in international covenants.

 

You can read here the judicial decision.

 

 

 

27 March 2016

The Supreme Court pronounces for the first time on the criminal liability of legal persons.

 

The Criminal Division of the Supreme Court has confirmed the sentence imposed by the National High Court on three companies for their participation in public health offences. These companies face stiff fines and two of them shall be wound-up.

 

The points of law detail the requirements for the legal person to be criminally liable, pursuant to Article 31 bis of Spanish Criminal Law, with the first requirement being that there must be proof of an offence committed by a physical person who forms part of the legal person (in this case, de facto and de iure directors) and, furthermore, that the company has failed in its obligation to establish crime-prevention vigilance and control measures.

 

This Sentence establishes that the core of the responsibility of the legal person in this case "is none other than the absence of the appropriate control measures to prevent the commission of offences". 

 

This Sentence makes clear, for the first time, the importance of implementing a crime-prevention system adapted to the specific activity of the company.

 

Click here for the full Sentence.

 

 

15 February 2016

 

Circular 1/2016 of the Public Prosecutor’s Office on the criminal liability of legal persons.

 

The State Public Prosecutor’s Office gives a detailed analysis of some essential aspects of the recently reformed Code of Criminal Law and offers an interpretation which is essential to the correct interpretation of the regime established under Article 31 bis of Criminal Law.

 

Click here for the Public Prosecutor’s Circular of 22 January 2016.

 

 

15 July 2015

 

Criminal Code reformed under Basic Law 1/2015, of 30 March: Main changes

 

Basic Law 1/2015, which introduced the modifications to the Criminal Code, which entered into force on 1 July 2015, was published in the Official State Gazette on 31 March 2015.

 

One of the main changes introduced under this reform is "permanent reviewable prison", which has generated a certain amount of social and political controversy.

 

It also defines new crimes under Spanish law, such as the new offence of the illegal funding of political parties.

 

It also eliminates misdemeanours, some of which will henceforth be called “minor offences”, abolishing other criminal offences, which will in the future fall under civil or administrative law.

 

The reform also stiffens sentences for certain offences and modifies other fundamental aspects of the general area of Criminal Law, such as suspended prison sentences, giving greater discretion to judges in this area.

 

It brings in an important change affecting business, specifically with respect to the criminal liability of legal persons, bringing crime prevention or “compliance” programmes to the fore.

 

(See our section on “Compliance”).

 

Finally, there are new regulations regarding the concealment of assets and criminal bankruptcy, and modifications to other white-collar crimes, such as criminal mismanagement and business corruption.

 

 

9 June 2014

 

Sentence for the use of false commercial documents 

 

Sánchez-Cervera Abogados brought a private prosecution for an offence of falsehood in a company document committed by the Chairman of a company to the prejudice of one of its employees.

 

The accused, the Chairman of a limited liability company in the communications sector, held a meeting in which he appointed our client as a member of the Board of Directors of the company and filed the appointment in the Companies Registry, without the knowledge or consent of that person.

 

As a consequence, the Social Security authorities opened proceedings against our client for joint and several responsibility for the Social Security debts of the company.

 

The Sentence considered the accused to have committed the offence of falsehood in a company document committed by an individual, under Article 392 of the Code of Criminal Law, sentencing him to 6 months’ imprisonment and the payment of costs.

 

The appointment of our client as a member of the Board of Directors of the company was declared null and void and the company was ordered to inform the Companies Registry for the corresponding registry entry to be cancelled.

 

To read the complete Sentence, click on the link below:

 

sentencia-condena-falsedad-documento-mer[...]
Documento Adobe Acrobat [1.4 MB]

13 december 2013

 

Sánchez-Cervera Abogados collaborates with Nine Lives Media (Manchester UK) in the production of a documentary about crime in Spain

 

Sánchez-Cervera Abogados collaborates with Nine Lives Media (Manchester UK) in the production of a documentary about crime in Spain

Nine Lives Media publicly thanks Sánchez-Cervera Abogados through Facebook and Twitter for their support in the production of a documentary:

 

5 november 2013

 

Acquittal in two cases of sexual assault

 

During 2013 our law firm has been engaged in two cases of sexual crimes, representing the males accused of sexual assault and grievous bodily harm.

 

The first case started due to a complaint filed with the police by a 16 year old minor who accused our client to have used violence and intimidation to have sexual encounters with her. The client denied ever having had physical contact with the minor, stating that the only contact had been virtual –through social media- and not intimidating for the minor.

 

The thorough criminal investigation lasted for approximately one year and included the declaration of several witnesses, the examination of the places where the assaults had theoretically taken place, investigation of telephone lines, computers, identification parade, and others.

 

The criminal investigation Court finally decided to stay the proceedings, as the evidence confirmed the statement of our client, who was acquitted free of all charges without having need to stand trial.

 

In a second case, which dates from 2010, our client had been identified by a woman in a supermarket as the person who sexually assaulted her in the year 2005. Our client denied knowing the victim and from the beginning the facts pointed towards a mistake in the identification of the suspect.

 

The criminal investigation court, nevertheless, following the public prosecutor’s advice, decided to put the suspect in custody. Our law firm was engaged when the client was already in prison.

 

After one month of preventive custody the High Court of Madrid ordered the release of the suspect, who then had to suffer an investigation that lasted more than two years, until the trial was held before the summer of 2013. Abundant evidence was provided that supported our client’s lack of relationship whatsoever with the facts under investigation.

 

In September 2013 the High Court rendered its judgement, acquitting the client due to the lack of evidence of his participation in the criminal act. The decision of the High Court is final.

 

 

 

11 april 2013

 

Sánchez-Cervera Abogados successfully represents the shareholders and management of a company which filed for insolvency, accused of fraud by two of the company’s suppliers

 

In a decision of 19 March 2013, the High Court of Madrid granted the appeals filed by our law firm on behalf of the company’s main shareholder and management and ordered the stay of the criminal proceedings.

 

The criminal complaint had been filed by two wholesale suppliers of electronic goods who alleged that our client had been purchasing goods during several months without informing the sellers of its critical financial situation, which eventually lead to insolvency, leaving unpaid bills to the amount of several hundred thousand Euros.

 

The reason behind the decision is that, as was highlighted in the appeals, the complainants did have knowledge of the purchaser’s difficult financial situation, as the purchaser had already breached the payment terms agreed with said suppliers on several occasions, with outstanding debts dating back to more than a year. In fact, the suppliers were also aware of the fact that the purchaser had been included in a debtors blacklist. With this information in their possession, they voluntarily chose to continue supplying goods to the struggling company. The Court considered that there had been no false representation in order to obtain credit or property.

 

Moreover, the proceedings also found that the suppliers had enjoyed a lasting commercial relationship with the company later declared insolvent. In the past, the company had always fulfilled its payment obligations, but in the most severe years of economic crisis it started showing signs of inability to meet its credit obligations (following the bankruptcy of several of its clients), a fact that, in the opinion of the High Court, also pointed towards the absence ofmens rea in the performance of the company’s management.

 

The decision of the High Court is final.

 

 

18 October 2012

 

Master in Legal-Financial translation at Comillas Pontifical University starts this week

 

This week marks the beginning of the new Master in Legal-Financial translation at Comillas Pontifical University. It is a postgraduate program that offers advanced training in the methodology and practice of translating highly specialized texts.

 

Eduardo Sánchez-Cervera is a faculty member for the Master, and will be responsible of teaching two courses: “Fundamentals of business organization and operation” and “Theory and practice of translation in the criminal law field”.

 

Sánchez-Cervera Abogados carries on its enduring relationship with Spanish universities.

 

For more information about the Master, click here

 

 

25 September 2012

 

Recovery of a private jet seized by authorities

Sánchez-Cervera Abogados represent a USA corporation, owner of a private jet which had been seized by Spanish authorities in relation to drug trafficking charges.

 

The jet had been leased to third parties who allegedly made illicit use of it. After being held for several months at a Spanish airport, judicial authorities authorized the restitution of the jet to its owner until a final judgment is pronounced in the ongoing criminal proceedings.

 

Over the last few months, Sánchez-Cervera Abogados has advised the owners and their insurance company on various practical matters, such as the securing of authorizations to carry out maintenance operations on the aircraft while it was being held, the removal and delivery of the flight recorders and their subsequent analysis by judicially appointed experts, the payment of airport fees, flight permits and other aspects.

 

In the photo, Eduardo and Belén Sánchez-Cervera with the flight recorders, recovered after being analyzed by experts.

 

25 August 2012

 

English Legal Methods, University of Cambridge

 

Eduardo Sánchez-Cervera attends the prestigious English Legal Methods (ELM) Summer Course at the University of Cambridge  held between July 9th and August 3rd 2012. Mr. Sánchez-Cervera was awarded a grant by the Madrid Bar Association (ICAM).

 

The course, which has been taking place since 1948, extends over four weeks, and contains morning lectures from Monday to Saturday, given by distinguished law academics and professionals of the United Kingdom.

 

In the afternoons, Mr. Sánchez-Cervera attended a specific seminar on Criminal Law directed by Professor Graham Virgo one of the most prominent experts on this field.

 

Group photo taken in Selwyin College , where the assistants to the course were accommodated.

 

Click here for more information about the English Legal Methods course.

 

Here, Eduardo Sánchez-Cervera receives his certificate from the course director Doctor Roderick Munday , Fellow and Director of Studies in Law at Peterhouse College.

 

 

Copyright © 2017 SÁNCHEZ-CERVERA ABOGADOS, S.L. CIF: B87461513 Telf.: (+34) 91 411 48 78 / Fax: (+34) 91 411 50 23. E-mail: info@sanchez-cervera.com

Office: C/ General Oráa, 26 (Madrid - 28006).

Recorded in the Madrid Companies Register in volume 34.303, of the 8th Section, sheet 131, page number M-617104.