Article 589 Spanish Criminal Procedure Act: Security for Pecuniary Liabilities and Attachment of Assets

Article 589 of the Criminal Procedure Act obliges the investigating judge, once there are indications of criminality against a person, to order that person to provide security sufficient to cover the pecuniary liabilities that may finally be declared, and in the same order to attach assets sufficient to cover them if the security is not provided. The amount must be fixed in that order and may not be lower than one third more than the whole probable amount of those liabilities. For a client with property or accounts in Spain, this article explains why assets are frozen long before any judgment.

Wording of Article 589 of the Spanish Criminal Procedure Act

Requirements and procedure

1. Indications of criminality against a determinate person, which is the same threshold as that for attributing participation and must be reasoned.
2. A quantification of the probable pecuniary liabilities: the compensation, the restitution and the costs, which must be estimated and not asserted.
3. A fixed amount stated in the order, which may not be lower than one third more than that probable total.
4. Attachment of assets only in default of the security, so the accused has the right to provide security instead and avoid the attachment.

Defence strategy

Contesting the quantification. The amount rests on an estimate of the probable liabilities, and it is frequently taken from the complainant’s claim without scrutiny. The defence produces its own quantification: the depreciated value of the property, the statutory scale for personal injury, documented loss of earnings, and the deduction of sums already recovered or covered by insurance. Reducing the base reduces the security and the attachment proportionately, since the statutory increase of one third is applied to it.

Providing security instead of attachment. The article gives the accused the option of providing security. A bank guarantee, a deposit or, where accepted, a charge over an identified asset avoids the attachment of accounts and of the family home, which is what causes the practical damage. Presenting a concrete and documented offer at the outset is materially more effective than opposing the measure in general terms.

Protecting third parties and the family home. Attachment cannot prejudice the rights of third parties in good faith. A spouse’s matrimonial interest, a co-owner’s share, a mortgage lender’s charge and the interest of a purchaser for value must be identified and asserted, and where the family home is affected the defence intervenes at once, since a charge registered against a property is far harder to remove later than to resist now.

Proportionality and review. The measure must be proportionate to the liabilities that could realistically be declared on the charge as formulated, and it may be reviewed on a change of circumstances, including a reduction of the charge or the partial payment of the claim. Where assets far exceeding the figure have been frozen, the defence applies for the release of the excess, which is granted more readily than a wholesale lifting of the measure.

• Article 116: civil liability arising from an offence
• Civil liability and confiscation
• Article 127: confiscation of proceeds
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.