Criminal defence throughout Spain · offices in Madrid and Alicante
Almost no environmental criminal case begins in court. It begins with an inspection visit, a sample taken from a manhole, a drone flight over a rural plot or a neighbour’s report to SEPRONA. The sanction file and the criminal case walk together over the same facts, and the second feeds on the first.
In brief. Exceeding an authorised limit is not enough: Article 325 requires proof of a risk of substantial damage. And the defence does not begin on the day of the statement: it begins the day you answer the statement of charges, sign an inspection record or hand the inspector a self-monitoring report. All of that is paper, and the paper travels to the criminal file.
From the inspection visit comes a record, from the record a sanction file and, if the instructor considers the facts may amount to an offence, the matter is sent to the Prosecutor’s Office and the administration suspends its file until the criminal courts rule. That has two consequences. When the criminal case begins, a complete file is already on the table: records, analyses, demands, photographs, licences, annual waste declarations and, very often, documents signed by the investigated person or their technician. And much of that material was generated when nobody was thinking about a criminal trial, but about reducing a fine or closing the file quickly.
The prohibition on punishing twice exists, but it does not work as many believe: Article 31 of Law 40/2015 bars sanctioning facts already punished where there is identity of subject, fact and basis. It is common for the sanction to fall on the company for breaching water or waste law while the criminal proceedings are directed against the director or the technical manager: different subjects, and both routes advance.
| Moment | Administrative route | Criminal route | The key point |
|---|---|---|---|
| Inspection | Record and statement of charges | The record will later be ratified in court | Sign recording discrepancies, never in silence |
| Acknowledgement | Reduction of the fine for admitting | A signed admission travels to the criminal file | Decide with criminal advice, not only financial |
| Remission | The file is suspended and sent to the Prosecutor | Criminal proceedings open | The definitive signal: act that same day |
| Double punishment | Barred with identity of subject, fact and basis | Company sanctioned, director prosecuted: both advance | Different subjects defeat the ne bis in idem plea |
| Interim measures | Activity suspension under sector law | Closure and suspension under Art. 33.7 CP | Fought with proportionality and corrective measures |
| Evidence | Analyses and self-monitoring | Substantial-damage aptitude must be proven | Sampling, chain of custody and receptor medium |
| Repair | Restoration demands | Art. 340: penalty one degree lower | Voluntary repair before trial is the strongest lever |
| Outcome | Fine and restoration | Prison, fine, disqualification, corporate penalties | Acquittal does not necessarily close the administrative file |
This overview is indicative; the interaction between the two routes depends on the sector rules and the specific circumstances of each case.
The Article 325 offence requires the discharge to cause, or be capable of causing, substantial damage to air, soil or water quality, or to animals or plants. That harmful aptitude must be proven by the prosecution with technical evidence on the receiving medium, the flow, the pollutant load and the persistence. It is the ground where most defences succeed, above all where the exceedance is occasional, falls within analytical uncertainty margins or arose from a documented and reported breakdown. The sampling, its chain of custody and the contradiction of the analyses are the technical heart of the case.
The paper generated in the administrative file is the other battleground: the signed inspection record must be ratified in court by its author and can be examined on everything it asserts; the acknowledgement signed to reduce a fine is not a confession in the strict sense but the prosecution will use it. And repair works: Article 340 allows the penalty one degree lower for whoever voluntarily repairs the damage, and Article 339 lets the court order those same measures. Withdrawing the waste and restoring, documented, is often the most useful thing a client can do.
Factories and workshops with discharge or waste files: defence of the entity, its authorisations and its continuity.
Directors and technical managers: position of guarantor, real delegation and separate defences where they diverge.
Slurry, sludge, burning and irrigation: defence in nitrate-vulnerable zones and near protected areas.
Neighbours, irrigation communities and associations harmed by discharges and dumps: complaint and private prosecution.
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Société de Conseil Juridique et Expert es un despacho de abogados con sedes en Madrid, Alicante, Londres y París, especializado en defensa y acusación penal, delitos económicos y corporativos y derecho tecnológico. Trabajamos con orientación estratégica en procedimientos penales complejos, propiedad intelectual y análisis forense avanzado, y prestamos consultoría jurídica, compliance y escudos de protección a particulares y empresas. Atendemos desde Alicante y Madrid, con consulta online en toda España y asistencia al detenido 24 horas. Resuelva sus dudas en las preguntas frecuentes o solicite una primera consulta.
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