Whistleblowing and Criminal Proceedings in Spain: Roma Traditoribus Non Praemiat

• Author: Juan Carlos Ortiz Pradillo
• Position: University of Castilla-La Mancha
• Pages: 43-75

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights Press

wHistlEBlowing and Criminal

ProCEEdings in sPain

roma traditoriBus non PraEmiat

Juan Carlos Ortiz Pradillo

University of Castilla-La Mancha

E-mail: JuanCarlos.Ortiz@uclm.es

Whistleblowers play a key role when it comes to reporting corruption, fraud

and mismanagement in which both public administrations and private com-

panies may be involved. However, there is no institution in Spain to regulate,

promote and duly protect the whistleblower who decides to collaborate with the

legal system and provide ecient information to the investigation of the crimes

committed, not only within criminal organizations or public administrations,

but also within companies and their relationships with public administrations.

is study is focused on analyzing what type of procedural handling should be

applied into the Spanish criminal system, to the repentant oender who decides

to collaborate with the authorities and helps to obtain evidence, because there is

not a legal framework of whistleblowers in Spain. is paper discusses also that

some procedural gures as the anonymous condant, the protected witness or

the repentant oender are not sucient or eective to promote whistleblowing.

Finally, it reviews the advantages and drawbacks of the inclusion of the discre-

tionary prosecution principle in the Spanish criminal procedure, by promoting

benets (e.g. immunity) for those who collaborate with the legal system.

Keywords: Corporate Crime, Criminal Proceedings, Criminal Justice, Spain, Whis-

tleblowing.

III Indonesian Journal of International & Comparative Law 43-76 (January 2016)

44

Pradillo

I. BRIBERY, FRAUD AND THE

FINANCIAL CRISIS IN SPAIN

Over the past few years, there has hardly been a single day where the

Spanish Media has not spoken about a new case of corruption aect-

ing political parties, entrepreneurs, unions, or even people linked to

the Royal Family. Unfortunately, we are accustomed to seeing, almost

every day and on the front page of newspapers, a new arrest or pros-

ecution connected to a fraud and bribery, and what is worse, we have

gotten used to expressions such as the renowned Malaya case, Bárcenas

case, Gürtel case, or the Palma Arena case, just to mention a few of the

most famous ones.

However, if corruption was, nowadays, something directly linked

to the public sector and essentially focused on the nancial damage

caused to public nances by the abuse of a position of power arising

from a public post or oce, the truth is that, over the past few years,

citizens have seen, almost as bewildered witnesses, how corruption has

spread over all of society’s layers and elements in Spain. Furthermore,

they see how tax fraud within the private business world causes them

much greater economic damage than that caused to the shareholders

or stockholders of private companies. Together with crimes against

the public administration or the economic public policy, citizens have

become aware of the economic and social impact resulting from negative

conduct against the market and consumers, the common denominator

which consists of the importance of the damage and on consumer rights

being directly aected by said crimes (e.g. investment scams) or such

rights are aected by the damage caused to companies’ competitiveness

(e.g. changing prices in public tenders and auctions or the abuse of

inside information within the stock market). Likewise, they are aware

of the impact of certain corporate crimes on the State economy (fraud

concerning the legal or economic status of the company, entering into

abusive agreements, or the unfair management which may lead to the

company going into bankruptcy).

Since the outbreak of the nancial crisis in 2008, citizens have

witnessed how many criminal acts within the business world have

caused real and direct damage to the whole population. For example,

some judicial cases against some Banks for alleged corporate crimes (the

45

Whistleblowing and Criminal Proceedings in Spain

Pradillo

Bankia aair) have exposed the deep economic impact which certain

fraudulent corporate acts pose for all citizens, beyond the damage

caused to the shareholders of such entities, since such frauds within the

private scope have driven up the cost of public services.1 Citizens have

been hit hard—or rather, their pockets have—by how the so-called

“bailout” of some banks, due to insolvency situations arising from their

own mismanagement, has had a direct detrimental impact on them,

since negative economic measures were applied to the whole country’s

population. Citizens feel how they must pay for others’ mistakes and

how their social rights and benets are reduced, taxes are raised, or

they directly face wage cuts, using euphemistic measures to contain

public decit. Along with this nonsense caused by the avarice of a few,

there is social indignation arising from the fact that the leaders of such

banks, bailed out using public money, receive millions in payments and

outrageous compensations when they leave their positions as ocers,

while banks cannot face their liability towards their clients.

erefore, it is no wonder that corruption and fraud are the second

concern for Spanish people, only aer unemployment, according to the

barometer of the Spanish Sociological Research Centre (CIS) in July

2014.2 What is worse is that such feeling is not only shared within Spain.

From abroad, some international concern about the Spanish situation

is perceived. In 2004, Spain was ranked number 23 by the International

Transparency within the index of perception of corruption. In 2015, it

dropped to the 40th position.

In contrast, scholars have resumed the legal debate over whether or

not certain special investigation measures should be encouraged, based

on rewards and negotiated justice. Such measures are already applied in

other countries as very eective tools to uncover, investigate, and punish

all those behaviours related with public corruption and economic

crime within business. e Report of the Spanish General Prosecutor,

published at the beginning of the judicial year 2014, calls for an urgent

procedural amendment to allow for the inltration of undercover

agents and to foster the protection given to any reformed oender “as

1. J.L. de la Cuesta Arzamendi, La Corrupción ante el Derecho y la Justicia, 8153

D  L 1-15 (2013).

2. C  I S, B  J 

(July 2014), http://www.cis.es/cis/export/sites/default/-Archivos/Margina-

les/3020_3039/3033/es3033mar.pdf.