Criminal law
Published on September 17th, 2026
The first call in a case like this almost always asks whether the investigation is aimed at the person or at the business. The answer, uncomfortable as it is, is normally both, and not in the same way.
Spanish law provides for the criminal liability of legal persons, and the company can be a defendant in its own right, with its own defense, its own representation in the proceedings and its own interests. Anyone running the Spanish subsidiary of a foreign group is looking at two clients in a single file, and that is where the early mistakes come from.
The interests of a company and those of its director run in parallel only for as long as nobody sees an advantage in separating them. The moment the company has an interest in presenting the conduct as the act of an individual who exceeded their powers, it has a defense that points squarely at the person running it.
The first question to settle is who represents whom, given that joint representation is possible while there is no conflict of interest and becomes a problem when one arises, by which point changing can be late. For the individual, everything else applies as it would in any other case, starting with what being an investigado means.
Criminal responsibility does not extend to every failure inside the company, which matters more than it sounds, and attaches instead to your own conduct, whether a decision, an instruction, or the failure to exercise a control you were required to exercise.
In practice it comes down to whether the person knew, whether they were responsible or the task had been effectively delegated, and whether the decision at issue is recognizable as a business decision on the information available at the time. Cases tend to end on that last question, which is answered not with hindsight but with whatever the contemporaneous documents show.
Article 31 bis of the Criminal Code allows a legal person to be exempt where its management body has "adopted and effectively implemented, before the commission of the offense, models of organization and management" that include appropriate measures to prevent it. Depending on how it is framed, that excludes liability or reduces it.
The operative word is effectively, since a manual nobody has read, on which nobody was trained and whose controls never took place, is worth nothing in the proceedings, or worse than nothing in that it shows the risk was identified and then left alone, so what counts is the evidence that the model was lived.
These proceedings are documentary, slow and technical, and they are won not on witness testimony but on whether it can be reconstructed who knew what, and when, and who decided.
Concretely, that means board and management minutes, powers of attorney and signing authorities, delegation resolutions, internal reports, the email traffic around the decision, and the records of the controls. Retention schedules keep running while a case sits still, and that material is either preserved early or not preserved at all.
In group situations the parent company and the D&O insurer come in as well, with the question of what the parent learns, what it has to learn and what the insurer requires before it will fund the defense. That coordination is not a side issue, because what gets reported upstairs can end up in the case file, and a defense position that does not match the report to the parent is one you will have to explain twice.
I start with the configuration, since it decides whom I can act for at all: who is under investigation, the individual, the company or both, and whether a conflict of interest already exists.
Then it is the documents, before retention periods destroy them: corporate resolutions, delegations, evidence of controls, correspondence. Only with that material in hand can anyone assess whether the decision is defensible as a business decision. I work with you in English and with the court in Spanish, and I coordinate with the parent company and the insurer where that is needed. This is the part of my practice that overlaps with business crime. You can also read how I work. If the matter is already before a court in Barcelona, this is how I work as an English-speaking criminal lawyer.
Editorial responsibility: Carles Jiménez, Spanish lawyer (Barcelona Bar No. 34.946). This note was prepared with the assistance of artificial-intelligence tools and reviewed and approved by the author before publication.
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