19/12/2002 – Since the OECD Anti-Bribery Convention entered into force over 20 years ago, Spain has successfully convicted only two individuals in one foreign bribery case, and has not convicted a single company. Spain continues to close cases prematurely. Prosecutors have insufficient time to conduct their investigations and face challenges in deploying adequate investigative measures. Spain needs to address these issues urgently and improve detection by regulating voluntary self-disclosure and protecting whistleblowers.
The 44-country Working Group has just completed its Phase 4 evaluation of Spain’s implementation of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related instruments. In addition to the issues described above, the report expresses concerns about the restrictive interpretation of the foreign bribery offence by Spanish judges, the exceedingly short statute of limitations applicable to proceedings against legal persons, and how corporate criminal liability is triggered in practice. The Working Group made a range of recommendations to improve Spain’s capacity to prevent and combat foreign bribery, including to:
- urgently adopt its draft law on whistleblower protection and ensure that it aligns with the standards of the 2021 Anti-Bribery Recommendation;
- ensure that specialised prosecutors have sufficient time to effectively conduct prosecutorial investigations, and that the threshold for opening a judicial investigation into foreign bribery allows for the effective investigation and prosecution of the offence;
- align the statute of limitations for pursuing a foreign bribery case against legal persons with that applicable to individuals;
- consider introducing a system of non-trial resolutions for foreign bribery cases that follows the principles of due process, transparency and accountability; and
- raise awareness among companies of all sizes of the foreign bribery offence and actively promote anti-corruption compliance, in particular among SMEs.
The report also highlights several positive developments and good practices, such as the increase in the number of foreign bribery investigations, the consolidation of the foreign bribery offence and clarification of corporate criminal liability following the 2015 reform of the Penal Code, increased detection of foreign bribery through the anti-money laundering system, increased sanctions against natural persons, as well as the enactment of an aggravated foreign bribery offence that, under certain circumstances, increases the maximum prison sentence to 9 years. Spanish authorities are also very active and resourceful when it comes to requesting and responding to mutual legal assistance.
The OECD Working Group on Bribery on 8 December 2022. The report is part of the Working Group’s fourth phase of monitoring of its members, launched in 2016. Phase 4 looks at the evaluated country’s particular challenges and positive achievements. It also explores issues such as detection, enforcement, corporate liability, and international cooperation, as well as covering unresolved issues from prior reports. The report lists the recommendations the Working Group made to Spain on pages 97-102, and includes an overview of recent enforcement activity and specific legal, policy, and institutional features of Spain’s framework for fighting foreign bribery. Spain will provide an oral update within one year (December 2023) on the status of the bill to protect whistleblowers and progress on enforcement of foreign bribery. Within two years (December 2024), Spain will submit a written report to the Working Group on the implementation of all recommendations and its enforcement efforts. The follow-up report will also be made publicly available.
