Under criminal law, there are two basic types of criminal case scenarios. One is where you are accused of a criminal offence and need to offer a defence. The other is where you yourself are the victim of a criminal offence and need to take a case to court.
With our experienced lawyers for criminal law and commercial criminal law, De Micco & Friends are able to successfully represent their clients in the event that you are charged with an offence or need to institute proceedings against another party. We speak Spanish, German and English.
Your criminal defence lawyers in Spain
In Spain, criminal proceedings can also be used for the enforcement of claims under civil law, such as, for example, damage compensation or cancellation (rescission) of a transaction. In the case of a querella (complaint), a criminal offence is reported and a civil claim may also be asserted at the same time. A combined case such as this is only recommended, however, in the event of an unequivocal, de facto criminal offence. If the court should ascertain at the investigation stage that there is no de facto offence under the criminal law criteria, the entire case will be dismissed and any claims under civil law would then have to be asserted in new proceedings.
Your specialised lawyers for criminal law and commercial criminal law
Representation for defending a case or taking a case to court
Anyone accused of a criminal offence in Spain has the right to offer a defence. As in many other European countries, the ‘presumption of innocence’ principle also applies in Spain. This means that any person accused is considered innocent until their guilt is proven in a court hearing and a guilty verdict given.
In order to ensure transparency regarding the costs of a criminal defence case or of reporting an offence, and ensure they are straightforward to calculate, we deal with these cases in three phases, invoiced prior to their commencement.
Phase 1: Case analysis, research
In the analysis phase, we investigate the case, the charge and the evidence – that is, all existing facts, data, witness statements and evidence. All relevant documents for the case are procured, analysed, collated and interpreted. If necessary, witnesses are researched and interviewed. The result is a legal assessment of the case that takes into account all the relevant facts and prevailing norms. On the basis of this analysis, we draw up possible defence or attack strategies.
In many cases, in addition to criminal law aspects, claims under civil or contract law may also play a part, as in, for example, a claim for damages resulting from a criminal offence. In particular, claims for damages will be asserted in cases of commercial or financial crimes or fraud. In such cases, it is not just expertise in criminal law that is required – business experience and a sound knowledge of corporate and business law are also vital. In a combined criminal case (querella), a key factor at the analysis stage is whether a de facto criminal offence has been committed. If no criminal offence exists, then any potential claims must be asserted under civil law. The result is the conception of a statement of claim or a defence statement for a civil court.
Phase 2: Investigation phase
In the investigation phase, there is communication with the investigating authorities. In Spain, these are the procurator (through whom all communication between lawyers, the public prosecutor’s office and the court takes place), the investigating judge and the public prosecutor’s office. As outlined, the investigation phase serves to determine whether a de facto offence has been committed under criminal law.
A criminal offence exists if three conditions are met:
- Categorisation (tipicidad)
- Illegality (antijuridicidad)
- Culpability (culpa)
Under the Spanish Criminal Code (Código Penal), an act may only be prosecuted if all three conditions are met. A criminal offence is therefore defined as an act or omission that is categorised as such and is illegal and culpable. Thus, for the authorities, the investigation phase always focusses initially on the question of whether the criteria for a criminal offence are fulfilled.
In the investigation phase, petitions are also filed, e.g. for the issuing of an arrest warrant, the securing of property or the surrender of information. The court can, at the request of the plaintiff or the public prosecutor, issue decrees for accounts to be examined or assets to be secured.
In Spain, if criminal proceedings are approved, the amount of any damages claim is also negotiated, in addition to the criminal law elements. Depending on the complexity of the case, the investigation phase can take between 6 months and several years.
Criminal proceedings as a strategic tool for the enforcement of damage compensation in Spain
In some instances, it can be useful to instigate criminal proceedings in order to enforce a civil claim. Victims of and parties injured by criminal offences who have suffered material damage are often not so concerned with whether the perpetrator is punished; they are more concerned with receiving compensation for damages. If a criminal offence is proven de facto, then it can be useful to instigate criminal proceedings with a damages claim, under the condition that if the damages and the associated costs are compensated, the proceedings will be withdrawn. In most cases, the investigating authorities agree to this type of settlement and cease the proceedings, as long as the case does not involve a serious crime that necessitates prosecution in the public interest (such as, for example, murder, grievous bodily harm or major fraud, etc.). In many cases we have succeeded, in the interests of all concerned, in stopping the proceedings shortly before the reporting stage, i.e. prior to the start of the investigation phase, by achieving an agreement between the parties concerned.
Costs for representing plaintiffs and defendants in criminal proceedings in Spain
- Representation of an accused person in simple criminal proceedings
De Micco & Friends calculate the fees according to the phases of the criminal proceedings. The amount of the fee is based on the fee calculations of the Bar Association in Madrid (Colegio de Abogados de Madrid) and is dependent on the complexity of the case and the length of the proceedings. The basic fee for simple criminal proceedings are:
- Case analysis: 4,000 EUR
- Investigation phase: 6,000 EUR
- Court case phase, per hearing date: 2,000 EUR
- Prison / detention facility visit: 900 EUR
- Execution of / objection to international arrest warrants: 5,000 EUR
- Travel within Spain: 1,200 EUR / day
- Travel within Europe: 2,200 EUR / day
- Travel outside of Europe: 3,300 EUR/ day
(all travel costs plus flight and hotel)
- Hourly rate for non-flat-rate services: 400 EUR
A success fee will be agreed for the event that the case against the accused is ceased in the investigation phase.
- Representation of plaintiffs and accused persons in a combined criminal proceeding
In cases of combined proceedings for criminal offences and damage claims, the following fee schedule from the Bar Association in Madrid shall be calculated additionally on a pro rata basis of one third for each phase.
If we represent an accused person, a success fee in accordance with the following table will be agreed for the event that the proceedings are ceased in the investigation phase.
Source: RECOPILACION DE CRITERIOS DEL COLEGIO DE ABOGADOS DE MADRID (LIST OF CRITERIA OF THE BAR ASSOCIATION IN MADRID)
We prepare a customised quote for each individual case.
Litigation risks and litigation costs of criminal proceedings in Spain
As in civil court cases, the unsuccessful party in the litigation bears the costs of the case. However, if there is a settlement, e.g. in regard to a damage compensation claim, then pro rata settlement of the litigation costs may be possible. In every case, we inform our clients in detail regarding the risks associated with litigation.
Our specialised lawyers for criminal law and commercial criminal law are approved for all Spanish courts and all the authorities concerned. In emergency cases, we are at our clients’ disposal 7 days a week.
If you have any further questions, please contact us using the contact form.
Please contact us for further information.
LAWYERS & AUDITORS