Article 803 ter e Spanish Criminal Procedure Act: Object of the autonomous confiscation procedure

Article 803 ter e defines the object of the autonomous confiscation procedure, which permits confiscation to be sought where the action has not previously been exercised, in particular where the prosecution has reserved its determination or where the perpetrator has died or cannot be tried.

Wording of Article 803 ter e of the Spanish Criminal Procedure Act

Requirements and procedure

1. A confiscation action which has not previously been exercised in the criminal proceedings.
2. A reservation of the determination of the confiscation expressly made by the prosecution in the written indictment, or the death, failure to appear or incapacity of the perpetrator.
3. In the case of a reservation, a final judgment in the criminal proceedings, which is the precondition for the commencement of this procedure.
4. The limitation of the object of the procedure to the confiscation, criminal liability not being determined in it.

Defence strategy

Express character of the reservation. Paragraph 2(a) requires the reservation to be made expressly in the written indictment. Where the indictment sought the confiscation without reserving its determination, or made no reference to it, the autonomous procedure is not available and the point may be raised as an objection.

Requirement of a prior final judgment. Paragraph 3 conditions the commencement of the procedure upon a final judgment in the criminal case. A procedure commenced before that judgment becomes final is premature, and the objection must be raised at the outset.

Lawful origin of the assets. The object of the procedure is confined to the assets. Documentary evidence of their lawful origin, of the income which financed them and of their disconnection from the punishable act is the whole of the defence, which is habitually built upon expert accounting evidence.

Position of third parties affected. The procedure may reach assets held by persons who were not accused. Establishing their good faith and the consideration given for the acquisition is the ordinary route by which the assets are excluded from the confiscation.

• Article 650 LECrim: content of the written indictment
• Civil liability arising from an offence and confiscation
• Asset concealment and insolvency offences
• Dismissal of criminal proceedings in Spain

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.