When a company discovers that it has been the victim of fraud (estafa), misappropriation (apropiación indebida), breach of fiduciary duty (administración desleal) or document forgery in Spain, criminal proceedings allow it to do three things at once: have the facts investigated with means that no private party has, secure the assets of those responsible before they disappear, and claim restitution or compensation in the same proceedings.
Criminal proceedings do not guarantee recovery on their own. But, properly set up from the outset, with the company appearing as private prosecutor, they are the most effective tool for getting the money back.
1. A criminal complaint (querella), rather than a report (denuncia)
A denuncia simply reports the facts to the authorities: the company does not become a party and has no control over what is investigated. A querella, by contrast, sets out an ordered account of the facts, identifies those responsible, asks from day one for investigative measures and for measures to secure assets, and makes the company a party as private prosecutor (acusación particular).
The power of attorney comes first. Filing a querella requires a special power of attorney: a general power to litigate is not enough (article 277 of the Spanish Criminal Procedure Act). The Supreme Court upheld the removal, at trial stage, of a company that had filed its complaint with a general power and failed to cure the defect properly; it added that a power granted before the court clerk (apud acta) cannot give the court representative more authority than the person appearing actually had (Supreme Court judgment 810/2012, of 25 October). If the company is foreign, the power must be executed with the formalities required for it to take effect in Spain.
If the complainant company is foreign, the judge may require it to post security in order to file a querella (article 281 of the Spanish Criminal Procedure Act), unless a treaty or reciprocity prevents it. We explain this in our guide to criminal proceedings in Spain.
The documents. The complaint should be filed with whatever is available: contracts, invoices, transfers, emails, accounting records, internal reports. The company does not need all the evidence on day one, but it does need a concrete basis that justifies an investigation.
2. Appearing as private prosecutor
The injured company may appear as private prosecutor and bring the criminal and the civil claim together. It can do so up to the stage at which the charges are formally set out (article 110 of the Spanish Criminal Procedure Act), but the earlier the better: a party that arrives late has not been able to request investigative steps or protective measures.
Once the criminal action is brought, the civil action is deemed brought as well, unless the company waives it or expressly reserves it (article 112 of the Spanish Criminal Procedure Act). Our advice is not to reserve it: civil liability is claimed in the criminal proceedings themselves, backed by the investigation and by the attachments.
Quantify the loss. It is important to define from the start what is being claimed and against whom. The Supreme Court requires that, when a sum of money is claimed, it is quantified or the basis for calculating it by simple arithmetic is clearly set out; default interest, moreover, runs from the moment the claim is quantified (Supreme Court judgment 404/2021, of 12 May).
The company does not depend on the public prosecutor. The private prosecutor may maintain its charges even if the public prosecutor seeks an acquittal. The Supreme Court set aside an order for costs against a private prosecutor that had been based on its accusing alone: mere disagreement with the public prosecutor is not recklessness, and an acquittal does not prove, after the event, that a prosecution that passed the admission of the complaint, the investigation and the committal for trial was reckless (Supreme Court judgment 1092/2011, of 19 October).
3. Bail and attachment: securing assets before they disappear
A judgment may award compensation and still go unpaid if those responsible have hidden or stripped their assets. That is why protective measures over assets are at the heart of the strategy.
- Where there is evidence of criminal conduct against a person, the judge orders that person to post sufficient bail to secure the financial liabilities and, failing that, attaches enough assets. The bail cannot be lower than the probable amount of those liabilities plus one third (article 589 of the Spanish Criminal Procedure Act).
- In the abbreviated procedure, the judge may adopt protective measures to secure financial liabilities, including costs, on the conditions laid down by the Spanish Civil Procedure Act (article 764 of the Spanish Criminal Procedure Act).
The application must be specific: bank accounts, real estate, company shares, vehicles, receivables. And it must explain the risk that assets will be hidden or dissipated. Properly grounded, the measure is not an early punishment but a guarantee that the judgment can be enforced.
4. Claiming against third parties too
Recovery need not be limited to whoever received the money. Depending on the facts, liability may extend to companies that benefited, to third parties with civil liability, or to those who profited from the offence without taking part in it.
- Anyone who has received the proceeds of an offence without consideration must return them or pay compensation up to the value of what they received (article 122 of the Spanish Criminal Code). We explain this in this blog post (in Spanish).
- If, during the investigation, there are indications that a third party has civil liability or has profited from the proceeds, the judge, at the request of the party bringing the civil claim, will order that third party to post bail and, failing that, its assets will be attached (article 615 of the Spanish Criminal Procedure Act).
The link between that third party, the facts and the loss must be shown specifically: a commercial or corporate relationship with the suspect is not enough.
5. What can be recovered
Civil liability covers restitution, repair of the damage and compensation for material and non-material loss (article 110 of the Spanish Criminal Code). Each item must be expressly claimed, including interest.
The Supreme Court distinguishes two kinds of interest. Default interest (article 1108 of the Spanish Civil Code) must be expressly claimed and, if there was no earlier demand, runs from the filing of the complaint or of the statement of charges until the first-instance judgment. From that judgment onwards, procedural interest under article 576 of the Spanish Civil Procedure Act applies (Supreme Court judgment 434/2018, of 28 September).
6. A strategy built around recovery
- Preserve the documents immediately and do not alert those responsible.
- Check the power of attorney before filing.
- Prepare a provisional quantification of the loss.
- Identify the assets of those responsible and of any third parties who benefited.
- Consider whether there is a conflict of interest between the company, its directors, employees or advisers.
The aim is not just a conviction: it is to build, from the very first step, a file that makes it possible to attribute liability, secure assets and get paid within the criminal proceedings themselves. If the fraud was committed by a partner or director of your own company, see also what to do when a partner or director diverts company funds.
Glossary
| Spanish term | English | What it means |
|---|---|---|
| Querella | Criminal complaint | The document by which the victim starts or joins criminal proceedings as a prosecuting party |
| Acusación particular | Private prosecutor | The victim appearing in the proceedings, through a lawyer and a court representative, prosecuting alongside the public prosecutor or alone |
| Acción civil | Civil claim | The claim for restitution, repair and compensation within the criminal proceedings |
| Fianza | Bail / security | The amount the judge orders the suspect to post to secure financial liabilities |
| Embargo | Attachment | Court freezing of assets when bail is not posted |
| Partícipe a título lucrativo | Gratuitous recipient | Someone who benefits from the proceeds without taking part in the offence; liable up to what they received |
| Poder especial | Special power of attorney | A notarial power expressly authorising the filing of a criminal complaint |
Frequently asked questions
Is a querella better than a denuncia?
Yes. With a denuncia the company is not a party; with a querella it appears as private prosecutor, requests investigative and protective measures, and controls the claim for the money.
Can the company recover the money within the criminal proceedings?
Yes. Civil liability is claimed in the same proceedings and covers restitution, repair and compensation (article 110 of the Spanish Criminal Code). The key is to request bail and attachment in time.
What if the public prosecutor does not press charges?
The private prosecutor may continue alone. Mere disagreement with the public prosecutor is not recklessness (Supreme Court judgment 1092/2011, of 19 October).
Can assets be attached from someone who did not commit the offence but benefited from it?
Yes, if the investigation indicates civil liability or profit from the proceeds (article 615 of the Spanish Criminal Procedure Act); that person is liable up to the value of what they received (article 122 of the Spanish Criminal Code).
What power of attorney does a foreign company need to file a complaint?
A special power to file a criminal complaint, executed with the formalities required for it to take effect in Spain. With a general power the company may be removed from the proceedings (Supreme Court judgment 810/2012, of 25 October).
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