When a crime is committed the author is obliged to pay all the pecuniary liabilities derived from the crime (article 109 of the Spanish Criminal Code, in Spanish Código Penal, henceforth CP). But, sometimes there are other subjects who may be liable of some of the liabilities consequence of a crime. These other subjects, who may be a person or a legal entity, should respond of the civil liabilities which may arise when a crime is committed (articles 120, 121 and 122 CP).
Both, the authors of a crime, and the third parities legally obliged to respond of the civil liabilities, may be required by a judge to deposit a bail which will guarantee such liabilities (art. 589 and art. 615 of the Spanish Criminal Procedural Law, in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim). This judge´s request could appear as soon as are discovered evidences of a crime which pointed out to a determined person. I have said could because in one case is mandatory and in the other not, when the bail is demanded to the suspect of a crime it is an obligation of the judge its request, but when the bail is required to a third party as civil liable, the judge´s request should be preceded by a prior request to him by the civil plaintiff. Thus, in one case is a judge´s obligation, in the other should be required to request it. But there are even another differences more important, I have already hinted one above, the author of a crime is liable of all the pecuniary liabilities derived from its crime (art. 126 CP and art. 589 LECrim), while a third party is liable only of the civil liabilities derived from it (art. 110 CP and art. 615 LECrim), hence the amount of the bail will be different. The other difference, although doesn’t concern directly to the bail, is that the third party would respond only if the author of the crime has not paid first. The third party will respond as far as the direct liable (the author of the crime) has not responded, so we said that the third party is a subsidiary liable.
As in the case of an insolvency of the author of a crime, the bail will be transformed into the seizure of the goods owned by the liable third party when it doesn’t deposit in time the amount nor all the amount requested by the judge, therefore the seizure of goods would occur only if the bail as a guarantee has failed first.
Now let’s look to the procedure closer. When the suspect of a crime is investigated, are some consequences, the most important he has to be informed of the existence of the investigation (art. 118 LECrim), it gives to him the possibility of defending himself against the accusation proposing new proofs, knowing what proofs are already into the possession of the police, choosing a lawyer. And as we have seen above, is mandatory that the judge must either obtain a bail from him or seizure its goods, to pay the hypothetical pecuniary liabilities derived from the crime. But, with the civil liable third parties there is no such obligation, so its participation into the process may be delayed until the opening of the oral phase of the trial (art. 652 LECrim), and to such participation the prior bail or seizure of its goods is not a necessary prior condition.
What is established from the art. 615 to the art. 621 LECrim, in reality is an authentic procedure which allows to the civil liable third parties to oppose this condition, this procedure open an authentic new procedure derived from the principal where the guilt of a suspect is discussed.
There another important feature, through the procedure established from the art. 615 to the art. 621, the owner of the effects or instruments of a crime which are in the hands of a third party, may recover its possession.
Finally, we should mention an example for its quite frequent occurrence. The persons or legal entities dedicated to any gender of industry or commerce, are also civil liable of their employees or shop assistants, representatives or agents, in the exercise of their post. This liability will arise always that a crime has been committed by them, as consequence of their service to their employer. To solve the existence of this connection provided by the service, between the employer and it employee, we should attend to the means and instruments putted at disposition of the employees by their employer, and to the theory of the appearance, the employer should respond if from the functions attributed to the employee would arise the external appearance of legitimacy in what he does.
Thus, the bail and the seizure, as a preventive measure, is also applicable to third parties alien to the process, if this liability is first established in the law, and being limited to the civil liabilities which may arise from the criminal procedure.