“Of the accessory consequences” is the title of the Title VI of the Book I of the Spanish Criminal Code (CP). In it, we find regulated the seizure, which the CP has considered an accessory consequence, and as such, not included within the group of the punishments or the security measures. Therefore, its nature will be that of a third class of criminal sanctions, which has as object the tools and products of the crime.
In order to comment the articles which form the Titile VI of the Book I of the CP, we will divide this writing into five sections: 1º Introduction; 2º The article 127 octies: The seizure as preventive measure (the seizure and legal deposit for guaranteeing the seizure) and de definitive seizure by firm sentence; 3º Types of seizure; 4º The exception of the article 128, and; 5º The articles 129 and 129 bis.
– Introduction:
The current regulation of the seizure is the consequence of the transposition of the Directive 2014/42/UE to the Spanish legal system, a directive which was aimed to adopt a compound of minimum norms which approached the regulations of seizure of the member States of the European Union and with this, to ease the confidence between them and their cooperation across the borders.
This transposition was carries out through two legislative reforms, the Organic Law 1/2015 (LO 1/2015) modified the articles 127 and following of the CP, and Law 41/2015 introduced in the Book IV of the Spanish Criminal Procedure Act (LECrim) the Title III ter, “Of the intervention of third parties affected by the seizure and the autonomous procedure of seizure”.
Owing to the fact that both Spanish Laws directly derives from an European norm, is applicable the principle of compatible interpretation, which stems from the Court of Justice of the European Union’s sentence of 16 June 2005. According to the Court of Justice of the European Union’s sentence of 15 May of 2020, number C 615/18: “the principle of compatible interpretation of the domestic Law, by virtue of which the national jurisdictional organ is obliged to give to the inner Law, as far as possible, a compatible interpretation with the demands of the Law of the European Union, is inherent to the regimen of the Treaties, in so far as this allows to the jurisdictional organ to guarantee, in the framework of its competences, the whole effectivity of the Law of the Union when ruling. Besides, any national judge who hears and rules a matter, within his framework of competence, is obliged, as an organ of a member state, to reject the application of any national norm contrary to a disposition of the Law of the European Union with direct effect upon the litigation which he is hearing and ruling [ sentences of 24 June 2019, Poplawski, C-573/17, EU:C:2019:530 , points 55 and 61, and of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court), C-585/18 , C-624/18 y C-625/18 , EU:C:2019:982 , points 159 and 161]”.
As we already said at the beginning, the object of the seizure are the tools and products of the crime, whatever the transformations that they may have experience (art. 127 CP), irrespective of whether during the commission of the crime has been malice or imprudence, though in the last case is demanded that the freedom´s privative punishment according to the CP should exceed the year of imprisonment (art. 127.2 CP). Thereby, the seizure of the goods related with the crime will be carried out when there is a firm sentence, and when the trial cannot conclude, the facts object of the procedure have to have criminal appearance in order to seize the goods according to the rules of the autonomous procedure of seizure, indeed, in the art. 127 ter 2 CP is established that, this procedure “can only be aimed against who has been formally accused or against the imputed against whom there are criminal rational evidences”. If any of these two requisites lacks, firm sentence in which is agreed the seizure of the goods related with the crime or criminal appearance of the facts for having been formally accused or imputed their author, the seizure of the goods cannot be carried out. This will happen in the criminal procedures which end with acquittal, or when the procedure has ended before its natural conclusion, through a sentence of conviction or acquittal, by means of an equivalent resolution, in other words, by the acquittal on all charges (art. 637 LECrim). This excerpt from the National High Court´s sentence number 4010/2020 can help us to underlie what we have just seen: “FIFTH.- The nature of the seizure as accessory consequence of the crime requires, in any case, for being able to agree it, the commission of facts which either have been regarded as a crime in a sentence or have criminal appearance, in this case when the trial cannot be concluded.
Both in the regulation before the LO 1/2015 and after it, it is departed from the concurrence of such inexcusable requisite. In the regulation after the Organic Law 15/2003, that the illicit patrimonial situation had to be proved for agreeing the seizure in the cases of exemption or extinction of the criminal liability. And in the currently in force, that there exist rational evidences of criminality against who have been formally accused or against the imputed, if the criminal procedure cannot continue. Thereby, is demanded in the art. 803 ter I of the LECrim, that in the lawsuit of the autonomous procedure of seizure should be expressed, between other data, the punishable fact and its relation with the goods, and the typification of the punishable fact according to the CP.
On the contrary, when the criminal procedure ends with an acquittal or an equivalent resolution, with effects of res iudicata, the seizure in a criminal procedure lacks of any support, for not having the normative and factual requisites which justify it.”
– The article 127 octies: The seizure as a preventive measure (the seizure and the legal deposit for guaranteeing the seizure) and the definitive seizure by firm sentence:
We have ended saying in the above introduction that, the seizure of the goods related with a crime can only be carried out when either it is imposed by firm sentence, or the alleged liable of the crime has been formally accused or imputed (art. 127 ter 2 CP). Well, the above, however, has an exception, the established in the article 127 octies. This article envisages the possibility of carrying out the seizure of the goods as a preventive measure, for guaranteeing the possible and definitive seizure in the future and firm conviction.
Concretely the article 127 octies says: “1. In order to guarantee the effectiveness of the seizure, the goods, means, tools and profits may be aprehended or seized and put into deposit by the judicial authority since the moment of the first investigations.
- The judge and court will be responsible of ruling, according to the LECrim, about the anticipated realization or provisional utilization of the goods intervened.
- The goods, tools and profits seized by firm sentence, save when they have to be destined to the payment of the compensations to the victims, will be adjudicated to the State, which will give them the destiny established in the law and regulations.”
As we see, the article 127 octies is divided in three points. In the first of them, is said what we saw at the beginning of this section, the goods or profits coming from a crime may be seized and put into deposit for guaranteeing the seizure agreed through firm sentence.
Like with all preventive measure, three requisites should be fulfilled previous to its adoption:
a) The first is the so-called fumus boni iuris, which can be translated as the appearance of good right, implies the necessity of formulating a probabilistic reasoning concerning the intervention of the imputed in the facts trying to be tried, in such a way that, due to the relevance of the preventive measures to be adopted against the person imputed, are not preventively restricted his rights without a high probability of, arrived his moment, being convicted (AAP SA 237/2021).
b) The second essential requisite, the so-called periculum in mora or risk of delay, supposes a risk of juridic damage derived from the delay in the management of the criminal procedure, for an extension in the time until the beginning of the oral trial and the firm conviction can give rise to the frustration of it (AAP SA 84/2021).
c) The fulfillment of the principle of proportionality: concreted in the following three conditions: “whether such measure is capable of fulfilling the objective proposed (trial of suitability); whether, besides, is necessary, in the sense that there exist no another measure more moderate for the fulfillment of such purpose with the same efficacy (trial of necessity); and, finally, whether it is pondered and balanced for deriving from it more benefits or advantages for the general interest than prejudices upon other goods or values in conflict (trial of proportionality in strict sense)( STC 89/2006, of 27 March) (SAP GI 1882/2020).
Besides, how is recalled to us by the AAP GU 259/2021, it is said that all preventive measure is characterized by three essential elements: “its instrumentality (it is not an end, but a means), its provisionality (it is extinguished when the procedure ends) and its variability (can be modified or left without effect), being necessary for its adoption the concurrence of the requisites of periculum in mora and fumus boni iuris.”
The next question we have to solve, is the moment in which could be agreed the preventive seizure, of the goods, means, tools and profits coming from the crime. The article 127 octies does not clarify any doubts regarding this, thus in order to find out the precise moment we will have to make an argumentative effort. The Examining Magistrate has between his functions, to gather by his own or through the Judicial Police, the goods and effects related with the crime (art. 334 LECrim), as well as their conservation for the trial or giving them the destiny legally or according to the regulations envisaged (art. 338 LECrim). The goods brought to judicial disposition, seized or aprehended during the criminal procedure will have the consideration of legal effects (art. 367 bis), and in neither case will be able to admit the judge during the stage of investigation, claims which has as object the return of such legal effects for their consideration as body of the crime since they are directly related with the crime committed (art. 367 LECrim and art. 334 LECrim). Therefore, the seizure of the goods, means, tools and profits to which is referred the article 127 octies, may be carried out since the moment that exist evidences that connect them with the crime committed, for being either tools or profits of the crime. This excerpt from the AAP AL 744/2018, may help us to underlie what we have just seen: “Thereby, the apprehension and seizure of the goods, tools or effects by the Examining Magistrate or the agents of the judicial police have to have, in accordance with the demands of the arts. 127, 374 of the CP, and the articles 334 and following of the LECrim, the due relation with the crime investigated, either for having been executed with them (tools of the crime), or for being able to serve as proofs of the guilt of some person in relation with the crime committed (proof), or for coming from the crime irrespective of their transformations (art. 367 bis and following of the LECrim); in these cases the own law (art. 367 LECrim) does not allow the making of any claim during the stage of investigation which may have as object the return of such effects, whatever may be their class and whoever may be the person who claims them.”
The preventive seizure of the effects of the crime, is a preventive real measure for it affects to goods or patrimony of the committed for trial or imputed, which has as goal to guarantee the sanction (seizure) which eventually may be imposed upon the investigated (art. 127 CP and art. 127 octies CP). This feature distinguishes it from another preventive real measure, the bail or subsequent seizure of the art. 589 and following of the LECrim, which has the goal of guaranteeing the pecuniary liabilities which may arise as consequence of criminal procedure, which are those included in the art. 126 CP. There exist more differences between them, the seizure of the legal effects has to be carried out from the first moment, without the necessity of a committed for trial or imputed, on the contrary, for the bail and or subsequent seizure are necessary strong evidences against determined person (art. 589 LECrim), what should result in his simultaneous committing for trial or imputing (art. 384 LECrim and art. 775 LECrim). We can mention more bails in the LECrim with this character of preventive real measures, we have the bail of the article 532 LECrim, with the goal of guaranteeing the presence of the accused in the trial and the execution of the punishment which may be imposed, and the bail of the art. 280 LECrim for the bringing of the lawsuit, and which is destined to respond of the possible costs of the procedure.
On the other hand, the reference which is made in the second point of the article 127 octies to the LECrim, is referred to the established in their articles 367 bis and following, where are regulated the destruction, anticipated realization or provisional use of the goods and effects provisionally seized.
And in the third point of this article 127 octies, is established the destiny which should be given to the goods, tools and profits seizure through firm sentence. They will be used for the payment of the compensations corresponding to the victim of the crime, and when they have been satisfied or when they do not exist, they will be adjudicated to the State.
The Law 41/2015 served, too, to create an Office of Recuperation and Management of Assets, through a new sixth additional disposition in the LECrim. To this office corresponds to make the necessary actuations for managing, in the more economical way, the conservation, realization or use of the goods seized. Concretely this sixth additional disposition says: “Sixth additional disposition. Office of Recuperation and Management of Assets. 1. The Office of Recuperation and Management of Assets is the administrative organ to which correspond the functions of location, recuperation, conservation, management and realization of the effects coming from the criminal activities in the terms envisaged in the criminal and procedural legislation.
When it is necessary for the carrying out of its functions and the fulfillment of its goals, the Office of Recuperation and Management of Assets may obtain the collaboration of any private or public entity, which are obliged to grant it according to the specific regulation.
- The resources granted to the Office of Recuperation and Management of Assets before the firm judicial resolution of seizure may be managed through the account of deposits and judicial consignations when it is money derived from the seizure or anticipated realization of the effects. For the rest of the goods, attending to the circumstances, the Office may manage them in any of the ways envisaged in the legislation applicable to the Public Administrations. The interests of the money and the benefits and fruits of the goods will be destined to satisfy the management costs, including those corresponding to the Office; the remaining amount will be conserved until the firm sentence of seizure, where will be established its destiny.
Having arrived the firm resolution of seizure, the resources obtained will be the object of realization and the amount obtained will be applied in the way envisaged in the article 367 quinquies of the LECrim. The remaining amount, as well as the product obtained for the management of the goods during the procedure, will be transferred to the Treasury as an income of public right, of which once deducted the expenses of working and management of the Office of Recuperation and Management of Assets, endowed in the budged of the Ministry of Justice, is assigned until the 50 percent to the satisfaction of the ends pointed out in the next point. These incomes will generate credit in the budget of the Ministry of Justice, according to the established in the General Budgetary Law.
The costs of management and the expenses envisaged in the above paragraphs may be esteemed in the way determined in accordance with the regulations. - The own goals of the resources obtained by the Office of Recuperation and Management of Assets as consequence of the judicial resolutions of seizure are the following:
The support of programs of help to the victims of the crime, included the boost and endowing of the Offices of Assistance to the Victims.
The support to the social programs oriented to the prevention of the crime and the treatment of the criminal.
The intensification and bettering of the actuations of prevention, investigation, chastening and repression of the crime.
The international cooperation in the fight against the grave ways of criminality.
And those which can be determined in accordance with the regulations. - In the State General Budget Law of each year will be determined the percentage affected by the ends pointed out in this disposition. The criteria for the distribution of the resources affected will be annually set according to the Council of Ministers.”
On the other hand, the article 367 quinquies of the LECrim, says: “Article 367 quinquies. 1. The realization of the legal effects may consist in:
– The delivery to nonprofit entities or to the public administrations.
– The realization by means of specialized person or entity.
– The public auctions.
- The legal effect may be given to nonprofit entities or to the Public Administrations when it has almost no value or is foreseen that the realization by means of specialized person or entity will be uneconomic.
- The realization of the legal effects will be carried out according to the procedure determined in accordance with the regulations. Notwithstanding the above, before the agreement of realization has been reached, a hearing should be granted to the Public Prosecution and the rest of the interested.
The product of the realization of the effects, goods, tools and profits will be applied to the expenses caused in the conservation of the goods and in the procedure of realization of them, and the remaining part will be transferred to the consignations account of the court, with the aim of satisfying the civil liability and the rest of procedural costs derived from the procedure.
The product of the realization of the effects can be also totally or partially assigned in a definitive way, in accordance with the terms and procedure legally established, to the Office of Recuperation and Management of Assets and the organs of the Public Prosecution in charge of the repression of the activities of the criminal organizations. All, without prejudice of the disposed for the Fund of seized goods for illicit traffic of drugs and other related crimes.
In the case of the realization of a seized good by order of a foreigner judicial authority will be applied the envisaged in the Law of mutual recognition of judicial decisions in criminal matters in the European Union.”
And to the above, we are obliged to add another article with the definition of the legal effects. An article which we have seen before, but due to its importance we will repeat. The article 367 bis of the LECrim says: “All those goods putted at judicial disposition, seized, confiscated or aprehended in the course of a criminal procedure, will have the consideration of legal effects.”
Let us now try to sum up the most important aspects of what we have seen in the above three articles:
– Legal effects are, all those goods which have been put at judicial disposition as consequence of the criminal procedure (art. 367 bis LECrim).
– The legal effects assigned to the Office of Recuperation and Management of Assets before the firm sentence which authorize their seizure, always that they are money, can be managed through the account of deposits and judicial consignations. The rest of goods, the Office will be able to manage them according to the legislation applicable to the Public Administrations. The interests of the money and the profits and fruits of the goods will be destined to satisfy the management costs, including those of the own Office. And the remaining amount, after satisfying the management costs of the legal effects, will be destined according to the established in the firm sentence authorizing their definitive seizure (Sixth Additional Disposition LECrim).
– Once there is firm sentence, the legal effects will be realized and the money obtained with their realization will be distributed according to the rules of the article 367 quinquies of the LECrim (Sixth Additional Disposition of the LECrim).
– The realization of the legal effects may consist in: a) Their delivery to nonprofit entities or to the public administrations; b) Their realization through specialized person or entity, o; c) Their public auction (art. 367.1 quinquies LECrim). Though their delivery to nonprofit entities or public administrations, only will be possible, when the legal effects have almost no value or it is foreseen that their realization by means of specialized person or entity will be uneconomic (art. 367.2 quinquies LECrim).
– The money obtained with the realization of the legal effects will be destained to satisfy the following: 1) To pay their conservation and realization costs; 2) The remaining amount after satisfying the conservation and realization costs, will be destined to the payment of the civil liabilities and the rest of procedural costs derived from the procedure, in other words, to the payment of the rest of obligations established in the art. 126 CP, and; 3) The remaining amount, after satisfying the above two concepts, and the profit obtained by the managing of the goods during the procedure, will be destined to the Treasury as an income of public right, and after deducting from them the costs of working and management of the Office of Recuperation and Management of Assets, may be destined up to a 50 percent to: a) The support to programs of help to the victims of the crime, included the boost and endowing of the Offices of Assistance to the Victims; b) The support to social programs oriented to the prevention of the crime and the treatment of the criminal; c) The intensification and bettering of the actuations of prevention, investigation, chastening and repression of the crimes; d) The international cooperation in the fight against the grave forms of criminality, and e) And those which may be determined in accordance with the regulations.
– Kinds of seizure:
In the art. 127 of the CP are regulated three different kinds of seizure: 1) In first point we find the so-called by the doctrine direct seizure, which affect to the goods, means or tools with which has been executed a malicious crime, as well as the profits derived from it, whatever may have been the transformations suffered by them; 2) The seizure when there has been negligence in the commission of the crime, but the seizure will only take place when such crime is punished with more than a year of imprisonment by the CP, and to agree the seizure is not an obligation for the judge or court as in the above case, but the goods seized are the same that those of the direct seizure, the goods, means or tools with which has been executed the crime and the profits derived from it, whatever have been the transformations suffered by them, and 3) The seizure by substitution, which affect to goods which do not derive from the crime, nor are they means or tools used to commit it, but they substitute them in an amount or economic value equivalent.
Concretely the art. 127 says: “1. All punishment imposed to a malicious crime will carry with it the losing of the effects that come from it and of the goods, means or tools used to prepare or executed it, as well as the profits coming from the crime, whatever may be the transformations that they may have suffered.
- In the cases in which the Law envisages the imposition of a freedom´s privative punishment of more than a year for the commission of a crime with negligence, the judge or court may agree the losing of the effects coming from it and of the goods, means or tools used to prepare or execute it, as well as the profits coming from the crime, whatever may be the transformations which they may have suffered.
- If for any circumstance the seizure of the goods pointed out in the above points of this article was not possible, the seizure of other goods will be agreed for an amount which corresponds to the economic value of them, and of the profit which has been obtained from them. When it is agreed the seizure of determined goods, effects or profits, but its value is inferior than the value they have in the moment of their acquisition, the procedure will be the same.”
In the article 127 bis is regulated what has been denominated by the doctrine as extended seizure. Although, as we have said at the beginning, the seizure has the nature of a third class of criminal sanctions, whose object is the tools and products of the crime, and besides we add that, the Examining Magistrate has within his own functions to gather by his own or through the Judicial Police, the goods and effects which has a relation with the crime (art. 334 LECrim), and that the goods putted at judicial disposition, seized or aprehended during the criminal procedure have the consideration of legal effects (art. 367 bis LECrim), without forgetting that, the seizure has to be agreed in firm sentence which put an end to the procedure where is tried the crime from where come the legal effects (art. 127.3 CP). The CP in its article 127 bis regulates an exception to al those general rules, through the extended seizure of the article 127 bis may be agreed the seizure of those goods, effects and profits which belong to a convicted, but which are not related with the crime for which he has been convicted. Nevertheless, in order to be able to agree this extended seizure the judge has to take into account certain hints, though they are not a close list. Besides, the extended seizure only can be agreed when the punishment from where derives is for some of the crime mentioned in the first point of the article 127 bis. To the extended seizure of the article 127 bis, is also aplicable the seizure by substitution of the article 127.3.
The article 127 bis says: “1. The judge or court will also agree the seizure of the goods, effects, benefits belonging to one person convicted for any of the following crimes when it rules, on the basis of objective founded hints, that the goods or effects come from an illicit activity, and is not proved their licit origin:
a) Crimes of human trafficking.
a bis) Crimes of organ trafficking.
b) Crimes related with the prostitution and the sexual exploitation and corruption of minors and crimes of abuses and sexual aggressions to minors under sixteen years of age.
c) Computer-related crimes of the sections 2 and 3 of the article 197 and article 264.
d) Crimes against the patrimony and against the socioeconomic order in the cases of criminal continuity and recidivism.
e) Crimes related with the punishable insolvencies.
f) Crimes against the intellectual or industrial property.
g) Crimes of corruption in the businesses.
h) Crimes of receiving of the second point of the article 298.
i) Crimes of money laundering.
j) Crimes against the Treasury and the social security.
k) Crimes against the rights of the workers from the article 311 to the article 313.
l) Crimes against the rights of the foreign citizens.
m) Crimes against the public health from the article 368 to the article 373.
n) Crimes of counterfeiting currency.
o) Crimes of bribery.
p) Crimes of embezzlement.
q) Crimes of terrorism.
r) Crimes committed within a criminal organization or group.
- To the effects of the envisaged in the first point of this article, will be assessed, specially, among others, the following hints:
1º The disproportion between the value of the goods and effects and the licit incomes of the convicted.
2º The hiding of the ownership or any power of disposition upon the goods or effects through the use of a natural or legal persons or entities without legal status, or tax heavens or territorios without the payment of taxes which hide or hinder the determination of the true ownership of the goods.
3º The transfer of the goods or legal effects through operations which hinder or impede their location and which lack any legal or economic justification. - In these cases will be also applicable the envisaged in the third point of the above article.
- If later the convicted is again convicted for crimes committed before, the judge or court will assess the prior seizure when ruling about the seizure corresponding to the new procedure.
- The seizure to which this article refers, will not be agreed when the criminal activities from where the goods or effects come have been the object of a criminal procedure ruled with acquittal or a dismissal with the effect of res judicata.”
In the article 127 ter is regulated the so-called autonomous seizure, as its own name hints it is a procedure which will be agreed besides the main procedure where is decided upon the innocence or guilt of the investigated. Then, it is another exception to the general rules which we have seen when we talked about the extended seizure, for the autonomous seizure can take place in two cases (art. 803 ter e LECrim): a) When the Public Prosecution only asks for the seizure of goods in his writing of accusation, and reserves their determination for the procedure of autonomous seizure, in these cases, the sentence which ends the main procedure will agree the seizure but without specifying the goods to be seized, and; b) When it is requested as consequence of the commission of punishable fact whose author has died or cannot be tried for being absent or with incapacity for appearing in court, in these cases, the main procedure cannot end with a conviction. In the latter scenario, more than in the former, for in that case there is a conviction which serves as the basis for the imposition of another kind of sanction besides the proper punishment, is where we clearly see the civil nature of the so-called autonomous seizure, it is based in avoiding and illicit enrichment, therefore, it is not a liability ex delicto. This excerpt of the SAN 4010/2020, can help us to clarify even more what we have just seen: “Although the autonomous seizure is regulated in sustantives and procedural criminal norms, the constant reference to the norms of the Spanish Civil Procedure Act for the managing of this procedure (art. 803 ter g, k and o of the LECrim) gives an idea of the true nature of the action exercised. In such sense, the exposition of motives of the already cited Organic Law 1/2015 says: as the European Court of Human Rights has affirmed, the seizure without sentence has not proper criminal nature, for it has not as basis the imposition of a sanction adjusted to the guilt for the fact, but “is more comparable to the restitution of the unjust enrichment than to a fine imposed under the criminal law” for “due to the fact that the seizure is limited to the enrichment (illicit) real of the beneficiary by the commission of a crime, this does not manifest that it is a regimen of sanction.”(Decisión 696/2005, Dassa Foundation vs. Liechtenstein).”
Likewise, we can observe how at the beginning we have made reference to an article of the LECrim, for in it exists a procedure denominated procedure of autonomous seizure regulated from the articles 803 ter e to the articles 803 ter u. But at this juncture, is better if we return to the article 127 ter, and we see what it really says: “1. The judge or Court may agree the seizure envisaged in the above articles although there is no conviction, when the illicit patrimonial situation is credited in a contradictory procedure and it is one of the following scenarios:
a) That the subject has died or suffers an chronic illness which impedes his trial and there exist the risk that the facts may prescribe.
b) That he is absent and this impede that the facts can be tried within a reasonable term.
c) That a punishment is not imposed for being exempted of criminal liability or for having been this extinguished.
- The seizure to which this article is referred only can be directed against who has been formally accused or against the imputed in relation to whom exists rational evidences of criminality when the situations to which the above point is referred have impede the continuation of the criminal procedure.”
As we can see, in the article 127 ter, it is not mentioned anything with respect to the possibility that the autonomous seizure, may be as consequence that the Public Prosecution has only asked for the seizure, reserving the determination of the goods to seize in the procedure of autonomous seizure. Another difference that exists between both precepts, the art. 127 ter and the art. 803 ter e LECrim, is that the article 127 adds as motive for being able to agree the autonomous seizure “the no imposition of punishment for being exempted of criminal liability or having been this extinguished”. This last case must be carefully analyzed. As we already know, the different scenarios where an exemption of criminal liability can be applied, are those gathered in the art. 20 of the CP, and the criminal liability may extinguish for the motives of the art. 130 of the CP. Of these two cases, the one which we should comment are the motives of exemption of criminal liability of the article 20, for in the art. 782.1 of the LECrim is envisaged that, always that is appreciated the exemption of criminal liability for any of the motives of the numbers 1º, 2º, 3º, 5º and 6º of the article 20 of the CP, the parties of the procedure must present the writings of provisional qualification of the crime, continuing the trial till the sentence, in order that the corresponding security measures and civil liability may be agreed, according to the rules of the CP. Therefore, if when is appreciated the concurrence of any of the scenarios contemplated in the numbers 1º, 2º, 3º, 5º and 6º of the art. 20 of the CP, the procedure should continue until finishing through sentence, where will be agreed the corresponding security measure, when the exemption applied is one of the first three numbers of the article 20 CP, and the civil liability, in this sentence should be agree, too, the corresponding seizure of the tools and benefits of the crime, without being necessary to a procedure of autonomous seizure, save in the cases in which the Public Prosecution has only asked for the seizure reserving the determination of the goods to be seized to the procedure of autonomous seizure (art. 803 ter e LECrim). Notwithstanding the above, if the motives of exemption of criminal liability appreciated were the 4º or 7º of the article 20, in which there exist no obligation imposed by the article 782.1 of the LECrim of finishing the procedure by sentence, there would be necessary to start a procedure of autonomous seizure to avoid this illicit enrichment which we mentioned before.
As we have already hinted, the greatest part of the regulation concerning the autonomous seizure is found in the LECrim, these are its more important features:
– When he autonomous seizure is the consequence of the reserve of actions by the Public Prosecution (art. 803.2 ter e LECrim), it will only take place when there exists firm sentence ruling about the liabilities of the convicted.
– Due to the civil nature of the procedure of autonomous seizure, the norms which apply to the oral trial in the Title III of the Book II of the Spanish Civil Procedure Law (LEC) will be applicable to it, is so far as they are not incompatible with those established int he LECrim (art. 803 ter g LECrim).
– The Public Prosecution has the exclusivity of the exercise of the action of the procedure of autonomous seizure (art. 803 ter h LECrim).
– With mandatory character, the owner of the goods of rights affected by the procedure of autonomous seizure will be assisted by a lawyer (art. 803 ter i LECrim).
– In the lawsuit of autonomous seizure have to be mentioned the punishable fact and its relation with the goods which should be seized. Therefore, although it is a procedure wholly autonomous, which even can take place in the absence of a conviction, this does not make that the seizure loses it connection with a determined crime. Admitted the lawsuit, the Judge or Court will adopt, when applicable, the preventive measure of seizure of the goods (art. 803 ter I).
– When the sentence agrees, totally or in part, the seizure of the goods requested in the lawsuit, this lawsuit will identify the damaged by the crime and the compensation which corresponds to them (art. 803 ter o LECrim). Therefore we have to understand that, the realization of the goods related with the crime through the procedure of autonomous seizure will also serve to satisfy the civil liabilities derived from the crime and the rest of concepts mentioned in the article 126 of the CP, even when the procedure has not finished with a sentence.
– The sentence by which the procedure of autonomous seizure ends, will have the effect of res judicata in relation with the person against whom was aimed the action and the requested (art. 803 ter p LECrim), but the future trying of the investigated will not be bound by it, if it finally take place (art. 803 ter p LECrim).
– To the procedure of autonomous seizure will be applicable the norms regulating the appeals of the Abbreviated Procedure (art. 803 ter r LECrim).
Now we have to return to the article 127 ter of the CP. As we have already seen, in its second point is stablished that the procedure of autonomous seizure can only be aimed against who has been formally accused or against the imputed against which there are enough evidences, always the the procedure could not have continue for any of the motives expressly mentioned in the first point of the rt. 127 ter. For accused we have to understand that who has acquired such status for being attributed to him a crime by the accusation in their provisional writings of qualification of the crime (art. 650 LECrim), and for imputed have to be understood that who has testified in accordance with the article 775 of the LECrim, in the case of the Abbreviated Procedure or in the Procedure for the Fast trying of Determined Crimes, or that who has been committed for trial (art. 384 LECrim), in the Ordinary Procedure, but the important is that, in both cases, will not be necessary to have been formally accused in order to justify the procedure of autonomous seizure, being enough with having previously been committed for trial or imputed. In the scenario that the procedure of autonomous seizure has been initiated as consequence that Public Prosecution has reserved the determination of the goods to be seized in a procedure of autonomous seizure, the above requisite of the art. 127.2 ter of the CP, logically will also be fulfilled, for in order to end the criminal procedure through sentence, previously there has to have been an imputed or committed for trial. Does this requisite mean, that the procedure of autonomous seizure cannot be aimed against third parties who have not been part in the commission of the crime as accomplices nor as authors? No, later we will deepen in this matter when we talk about the seizure against goods of third parties regulated in the art. 127 quater of the CP, nevertheless once we have arrived to this juncture, we are obliged to say that, the procedure of autonomous seizure wholly compatible with the possibility of seizing through it the goods pertaining to third parties. We can mention as an example the SAN 2205/2020, let us see some of its excerpts:
- “The article 127 ter 2 establishes when regulating the autonomous seizure that only may be aimed against who has been formally accused or against the imputed against whom there are enough evidences. But in the next article, the article 127 quater, allows to agree the seizure of goods and profits “to which are referred the above articles” when they have been transferred to third parties. With this reference to the above articles, there seems that we have to admit that the seizure of goods belonging to third parties may be requested through the autonomous procedure, in the case of a halt of the main procedure, for absence, among other causes. The second paragraph of the art. 127 ter would stress the necessity of the existence of hints of criminality, in other words, if the case which halts the procedure did not exist, the procedure would have continue until the proper sentence.”
- “The procedure of autonomous seizure is regulated in the article 803 ter and following of the LECrim. To the passive legitimization is referred the art. 803 ter j, that establishes:
- There will be summoned to trial as defendants the subjects against whom the action is aimed for their relation with the goods to be seized.
- The investigated absent will be summoned by notification aimed to his procedural representatives in the procedure suspended and the fixing of the edict in the board of announces of the Court.
- The third affected by the seizure will be summoned in accordance with the envisaged in the third point of the article 803 ter b.
So the passive legitimization is not limited with the absent investigated, as the appealed sentence pretends, but the LECrim expressly includes, when regulating this procedure, the third parties owners to the goods to be seized, different from the absent investigated.”
- “There has to be stressed how the Directive when taking about the seizure of goods pertaining to third parties, is referred to goods which have been transferred to third parties by a suspect or accused, without demanding that this has to be a convicted.”
As we have just seen, the next kind of seizure we have to talk about is the seizure which affect to the goods pertaining to third parties, regulated in the art. 127 quater of the CP. Like the autonomous seizure, when it comes from a procedure which has as cause another which has not ended with conviction, the seizure of goods pertaining to third parties has a civil nature, in other words, it cannot be even regarded as this third category of punishments different from the proper punishment and the measures of security. It is founded in avoiding an illicit enrichment, therefore, in the principle according to which no one can enrich itself from a contract with an illicit cause (art. 1305 of the Spanish Civil Code).
Let us see now what is said by the article 127 quater: “1. The judges and courts may agree too the seizure of the goods, effects and profits to which are referred the above articles that have been transferred to third parties, or of an equivalent value of them, in the following cases:
a) In the case of the effects and profits, when they have acquired them with the knowledge that they proceed from an illicit activity or when a diligent person would have had motives for suspecting, in the circumstances of the case, of their illicit origin.
b) In the case of another goods, when they have acquired them with the knowledge that in this way they hindered their seizure or when a diligent person would have had motives to suspect, in the circumstances of the case, that in this way their seizure was hindered.
- It will be presume, save proof to the contrary, that the third has known or has had motives to suspect that they were goods coming from an illicit activity or that they were transferred to avoid their seizure, when the goods or effects have been transferred to them free of charge or for value inferior than their real value in the market.”
As we see, the article 127 quater allows both the seizure of goods which have been transferred directly to third persons, and of those goods in possession of those third parties which have an equivalent value that the goods which should be seized. It is understood that, this last scenario will be applicable when the goods which should be seized has suffered some kind of transformation, as having been the object of selling or interchange for others.
In the article 127 quater are distinguished two scenarios, when they are effects or profits coming from the crime and another goods, among which we can include those which the third party has acquired with the profits directly obtained from the crime. Nevertheless, in both cases is not necessary the presence of malice and will be enough with the negligence of the acquirer, for both scenarios are based in the knowledge or the duty of knowledge by the third party of the illicit origin of the good or the intention of avoiding the seizure. This distinction between effects and profits coming from the crime and another goods, affects to the cause which allows the seizure of the goods. Whereas the former, is based on the knowledge or suspicion of the illicit origin, the latter is based on the knowledge or duty of knowledge of the intention of evading the measure.
Besides, in the second point of the article 127 quater is established an iuris tantum presumption, it will be presumed, save proof to the contrary, that the third party has known or has had motives to suspect that they were goods coming from an illicit activity or being transferred to avoid their seizure, when the goods of effects have been transferred free of charge or for value inferior than their real value in the market. This presumption iuris tantum serves to distinguish the third affected for the seizure (art. 803 ter a and following of the LECrim), from the third participant through lucrative title of the art. 122 of the CP. The iuris tantum presumption, as we have already seen, will admit a proof to the contrary, it can be destroyed proving that the third acquirer assumed a charge with such acquisition, something which does not happen with the third participant through lucrative title of the article 122 of the CP, which does not admit proof to the contrary and the goods always has to be restored. Let us see this excerpt from the SAN 2205/2020, since it can help us to clarify a little more the matter: “The position in the procedure of the third participant through lucrative title is analogous to the attributed in the art. 803 a) of the LECrim to the third party affected by the seizure. Though the ambit of the art. 127 quater is not strictly coincident with the art. 122 of the CP. The presumption, for agreeing the seizure in the case of goods transferred through lucrative title, that the third knew or had motives to suspect that the goods came from illicit activities or that the goods were transferred to him to avoid the seizure, admits proof to the contrary. The proof of good faith makes the seizure impossible. With the article 122 does not occur the same, since in all cases the third participant through lucrative title should restore the thing. In order to avoid an illicit enrichment the good faith in the seizure must be interpreted restrictively. The protection of the good faith of the acquirer only will have sense in relation with the sacrifice by his side of an interest as consequence of the acquisition, this is when he proves that he has acquires a burden, effectuated a provision or incurred in a expense for the fact of the acquisition or enjoyment of the good. With this interpretation both actions could coexist, since, in these cases where the third party has assumed a burden, his participation may not be regarded through lucrative title. The necessity of reconciling both precepts is derived from the fact that in the majority of cases the restitution, imposed by the art. 122 of the CP to the participant through lucrative title, entails its assignation to the State.”
We cannot forget either that, the formula employed by the article 127 quater can coincide with the formula employed by the CP for defining the crime of money laundering (art. 298 and following of the CP), something which does not fit with treating the acquirer like a third party and entails problems of interpretation. Nevertheless, the jurisprudence has tried to define the line which separates both cases, adjudicating to the money laundering the cases in which there has been malice and the graver negligences, though this in my opinion has not wholly solved the problem. The article 127 quater is clear, the third party can act with the knowledge that the goods come from an illicit activity or knowing that in this way the seizure of the goods was being hindered, something which clearly determines the existence of malice and with it the application of the precepts applicable to the money laundering. In any case, as an example of what is said by or courts, we can see this excerpt from the STS 400/2022: “11. This specific formula of reproach of the third to the effect of the seizure of his goods acquires really differentiated features with respect to the specific criminal demands which claim the types of money laundering. In these is demanded, when there is malice, that the active subject knows the illicit origin of the goods or, when there is negligence, the grave failure to comply with the duties which demanded such representation, -vid. about the catalog of specific duties of care for the prevention of the money laundering, Directive (UE) 2018/843, of the European Parliament and the Council, of 30 May 2018, through which is modified the Directive (UE) 2015/849 concerning the prevention and use of the financial system for the laundering of capitals or the financing of terrorism, and by which are modified the Directives 2009/138/CE and 2013/36/UE nd the Law 10/2010 of 28 April, modified by the RDL 7/2021 of 27 April.
While for the autonomous seizure it is enough with proving that the third party was not diligent in the identification of the suspicions about the illicit origin of the goods -for instance, not asking- or in the fulfillment of the mechanisms activated -asking to who cannot inform- or, simply, disregarding the data confirming the suspicion. Like is specified in the STJUE of 14 January 2021, in the matter C-393/19, on account of the prejudicial questions formulated by Apelativen Sad Plovdiv (Appealing Court of Plovdiv), the clause of protection of the third party of good faith gainst the procedure of seizure of goods pertaining to third parties which is established by the article 6.2 of the Directive 2014/42, demands to establish “that who do not know or who cannot know”.
Like in the case of the autonomous procedure, the seizure which affect to goods of third parties has also its own chapter within the LECrim, from the article 803 ter to the article 803 ter e. But, it is not a specific procedure, in these articles what is regulated is the way in which the third party affected by the seizure, will take part in the main procedure where is decided about the crime of which the seizure will be an accessory sanction.
In this way is guaranteed that, the person which may be affected by the seizure of the goods will be able to take part in the procedure and with it to make effective his right to effective legal remedy, as is demanded by the article 8.1 of the Directive 2014/42/UE: “The member States will adopt the necessary measures for guaranteeing that the persons affected by the measures established in this Directive have right to effective legal remedy and a fair trial in order to guarantee their rights.”
Likewise, the third party who takes part in the procedure must be assisted ll the time by a lawyer (art. 803 ter b 2 LECrim), another of the guarantees derived from the Directive 2014/42/UE: “7. Without prejudice of what is established in the Directive 2012/13/UE and in the Directive 2013/48/UE, the persons whose goods are affected by the resolution of seizure will have the right to have access to a lawyer during all the procedure of seizure, with respect the determination of the profits and tools, with the end of exercising their rights. The persons affected have to be informed of this right.”
Another way of avoiding the provisional seizure of their goods by those third parties, is the proposed by the article 996 of the LECrim. They can exercise their rights through the third party domain regulated in the articles 595 and following of the Spanish Civil Procedural Law (LEC). Though this method is limited to lift the provisional seizure, as the Exposition of Motives fo the LEC says: “The third party domain is not conceived as an ordinary procedure defining the domain and with the effect secondary of lifting the seizure of the good object of the claim, but as an incident, in the strict sense, of the execution, directly and exclusively aimed to decide whether to procede with the lifting or maintaining of the seizure.»
The last kind of seizure is the extended seizure for criminal reiteration, which is the regulated in the article 127 quinquies and the article 127 sexies. Yes, it is just what you are thinking, we have already seen an extended seizure when we talked about the article 127 bis. To find the differences between both is complicated, until the point of thinking that the articles 127 quinquies and 127 sexies are not necessaries. But let us try to find these differences. The first and maybe also the most important, the extended seizure of the article 127 bis is mandatory, the article 127 bis says “The judge or court will agree too…”, while the extended seizure for criminal reiteration has been conceived as a faculty of the judge or court, the article 127 quinquies says “The judges and courts may agree too…”. Another difference is that, the extended seizure for criminal reiteration only is applicable when there exist evidences that the subject has obtained with his criminal activity, a benefit of more than 6.000 euros (art. 127 quinquies CP). Besides, the art. 127.2 quinquies gives a definition of when we are before a continuos criminal activity, and in the article 127 sexies are established iuris tantum presumptions which are applicable to the scenarios envisaged in the article 127 quinquies.
The article 127 quinquies says: “1. The judges and courts may agree too the seizure of goods, effects and profits coming from the previous criminal activity of the convicted, when are fulfilled, all the following requisites:
a) That the subject is or has been convicted for any of the crimes mentioned in the article 127 bis.1 of the CP.
b) That the crime has been committed in the context of a continuos criminal activity.
c) That there exist relevant evidences that the patrimony of the convicted comes from a previos criminal activity.
These are relevant evidences:
1º The disproportion between the value of the goods and effects and the incomes of licit origin of the convicted.
2º The hiding of the ownership of any power of disposition upon the goods and effects through the use of intermediate natural o legal persons, or tax heavens or territories of no payment of taxes which hide or hinder the determination of the true ownership of the goods.
3º The transfer of goods and effects through operations which hinder or impide their location and which lack any legal or economic justification.
The envisaged in the above paragraph only will be applicable when there are relevan evidences that the subject has obtained, through his criminal activity, a benefit of more than 6.000 euros.
To the effects of the above point, a crime will be understood committed within a criminal continuos activity always that:
a) The subject is convicted or has been convicted in the same procedure for three or more crimes from which have derived an economical direct or indirect benefit, or for a continuos crime which includes, at least, three criminal infringements from which have derived a direct or indirect economic benefit.
b) Or in the term of the previous six years to the moment in which has been initiated the procedure in which he has been convicted for any of the crimes to which is referred the article 127 bis of the Criminal Code, he has been convicted for two or more crimes from which have derived an economic benefit, or for a continuos crime which include, at least, two criminal infringements from which have derived an economic benefit.”
And the article 127 sexies says: “To the effects of the envisaged in the above article the following presumptions will be applicable:
1º It is presume that, all the goods acquired by the convicted within the term which begins six years before the date of opening of the criminal procedure, proceed from his criminal activity.
To these effects, it is understood that the goods have been acquired in the earliest date in which the subject has made use of them.
2º It is presumed that all the expenses made by the convicted during the term established in the above point, were paid with money coming from his criminal activity.
3º It is presumed that, all the goods to which is referred the point one were acquired without burdens.
The judge or court may agree that the above presumptions are not applied in relation with determined goods, effects or profits, when, in the concrete circumstances of the case, result wrong or out of proportion.”
– The exception of the article 128:
The article 128 says: “When the referred effects or tools are of licit commerce and their value is not proportional with the nature and gravity of the criminal infringement, or when the civil liabilities were wholly satisfied, the judge or court may not agree the seizure, or agree it partially.”
As we can see, in the article 128 is established an exception to all we have seen until now. The judge or court may not agree the seizure of the tools or profits of the crime, or only agree it partially, when such goods are of licit commerce and their value is not proportional with the nature or gravity of the criminal infringement, or the civil liabilities have been wholly satisfied.
It seems that this article 128 has forgotten the rest of the procedural costs mentioned in the article 126 of the CP, to which also are applied the profits obtained with the realization of the effects and tools coming from the crime, and it has also forgotten the expenses of conservation and management of these goods until there is a firm sentence, in the cases in which is agree their provisional seizure. Nevertheless, the most important part to which must be applied obtained with the realization of the goods seized is always the civil liability derived from the crime.
– The articles 129 and 129 bis:
The article 129 says: “1. In the case of the crimes committed within, the collaboration, through or by means of companies, organizations, groups or any other class of entity or group of people that, for lacking of legal personality, are not comprehended in the article 31 bis, the judge or court may impose to such companies, organizations, groups, entities or groups one or varios accessories consequences to the punishment which correspond to the author of the crime, with the content envisaged from the letters c) to g) of the seventh point of the article 33. They may agree too, the definitive prohibition of carrying out any activity, even if it is licit.
- The accessory consequences to which is referred the above point only can be applied to the companies, organizations, groups, entities or groups in it mentioned when this Code expressly envisages it, or when it is one of the crimes to which this allows to demand criminal liability to the legal entities.
- The temporal closing of the premises or establishments, the suspension of the social activities and the judicial intervention may be agreed too by the Examining Magistrate as a preventive measure during the stage of investigation of the cause to the effects established in this article and with the limits of the article 33.7”
The article 129 is aimed to those organizations or associations which lacks legal personality. In these cases, as consequence of not being applicable the envisaged in the article 31 bis, through which is established the criminal liability of the legal entities, the art. 129 has tried to extend the application of determined accessory consequences, without which such entities would remain unpunished. The mentioned accessory consequences of the article 129 accompany the punishment imposed to the person author of the crime.
In the rest of the cases, when it is an entity with legal personality, will be of application the envisaged in the article 31bis and following of the CP, and the punishment which can be imposed are those of the article 33.7 of the CP.
Like with the entities with legal personality of the article 31 bis, the imposition of the accessory consequences of the articles 31 bis need that the crime has expressly envisaged its sanction in the corresponding article of the CP.
As preventive measures, are envisaged in the third point of the article 129: The temporal closing of the premises or establishments, the suspension of the social activities and the judicial intervention.
The article 129 says: “If they are convicted for a crime committed against the life, the integrity of the persons, the freedom, the sexual liberty or indemnity, of terrorism or any other grave crime which entails a grave risk for the life, the health or the physical integrity of the persons, when the circumstances of the fact, criminal records, assessment of the personality, or from any other information available may be assessed that exist a relevant risk of criminal reiteration, the judge or court may agree the taking of biological samples and the realization of analysis for the obtention of ADN identifiers and their inscription in the police´s database. Only can be carried out the necessary analysis for obtaining the identifiers which supply, exclusively, the genetic information which reveals the identity of the person and his sex.”
If the affected was opposed to the gathering of the samples, the judge or court may impose its forced execution through the use of the minimum coercive measures essential for its execution, which should be proportionated to the circumstances of the case and respectful with his dignity.”
What is established in the article 129 bis, is a kind of biological seizure, to which the convicted cannot oppose. In similar terms but during the stage of investigation, the art. 363 and the art. 520 of the LECrim, envisage too the possibility of obtaining biological samples of the investigated or detainee during such stage of investigation of the cause.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com