Summoned as a suspect (investigado) in Spain: what a business owner or executive should do

Receiving a summons to give evidence as a suspect (investigado) can be a cause for concern, especially when it affects a company’s business, its reputation or the personal position of a director or executive. However, the summons is not a conviction, nor does it mean that the judge considers the facts proven. It indicates that there is an investigation directed at a specific person and that their right of defence must be guaranteed.

The first rule is simple: it is unwise to attend the hearing without prior specialist criminal law advice. An improvised answer, the disorderly handing over of documents or an informal conversation with the other party can complicate the defence strategy.

What being a suspect means and what it does not mean

A suspect is a person provisionally attributed with possible involvement in facts that could constitute an offence. They have the right to be informed of those facts in sufficient detail, to examine the case file before giving a statement, to appoint a lawyer and to remain silent in whole or in part. They may also decline to answer certain questions and are not obliged to plead guilty. These rights are set out, among other provisions, in Article 118 of the Spanish Criminal Procedure Act (Ley de Enjuiciamiento Criminal).

Being a suspect does not mean being formally charged or convicted. The pre-trial investigation (instrucción) serves precisely to establish whether the offence occurred, who may have been involved and what evidence exists. The investigation may end in a stay of proceedings (sobreseimiento), move on to the opening of the trial or lead to other procedural decisions.

In the case of a company, the situation requires a specific review. If the legal person has been formally placed under investigation, the statement will be given by the representative specially appointed by it, assisted by a lawyer. The company also has the right to remain silent, not to incriminate itself and not to plead guilty, under Article 409 bis of the Criminal Procedure Act. The defence of the company and that of the executive may coincide, but there is not always a genuine identity of interests.

What to do before going to court

The first step is to hand the summons and all documentation relating to the matter to a criminal lawyer. It is advisable to check which court is handling the case, which offence is being investigated, whether the proceedings have been declared secret and in what specific capacity the person or the company is being summoned.

Legal assistance is not a mere formality: the lawyer must be able to examine the case file in advance and prepare the statement. The law recognises the right to examine the case file in good time and, in any event, before giving a statement, and to consult the lawyer in private even before the statement (Article 118 of the Criminal Procedure Act).

Nor is it advisable to contact the other party to discuss the facts, ask for explanations or try to reach an informal agreement. Such communication may be taken out of context and may also damage the company’s procedural position. Conversations with employees, partners or third parties who may give evidence must be handled with particular care, without pressure or instructions as to what they should say, and enquiries to obtain data and information should be left to the trusted lawyer.

Finally, documents and digital media relating to the facts must be preserved. Deleting, altering or selectively choosing information can create additional problems. Keeping emails, contracts, invoices, minutes and internal records in good order allows the defence to reconstruct the business activity and to distinguish a questionable management decision from criminally relevant conduct.

To give a statement or not: when each option may be advisable

There is no automatic answer. Giving a statement may be useful when the defence has, from the very outset, a coherent and fully documented explanation capable of clearing up errors, misunderstandings or incorrect attributions. It may also make it possible to establish an exculpatory account from the outset and to steer the investigation towards relevant documents or witnesses.

On the other hand, it may be prudent to exercise the right not to give a statement, in whole or in part, when the case file is not yet known, there are contradictions in the documentation or it is not yet available in full, the investigation is complex or a hasty answer could open new lines of accusation. Remaining silent does not amount to admitting the facts. The decision should be taken after reviewing the case file and assessing the position of the individual and of the company.

In some cases it may be advisable to answer only some questions, or only those put by the suspect’s own lawyer. This option requires preparation: partial answers must be understandable and must not create unnecessary contradictions. The lawyer may ask for relevant incidents to be recorded in the minutes.

What happens on the day of the statement

The hearing normally begins with the identification of the suspect and information on the facts attributed and on their rights. Questions are then put by the judge, the Public Prosecutor and, where applicable, the private prosecutors, unless the right not to answer their questions has been exercised. The defence lawyer is always present and asks questions last. The suspect may consult their lawyer in private before and after giving the statement, as provided in Article 775.1 of the Criminal Procedure Act.

It is important to listen to the whole question, to ask for clarification if it is not understood and not to answer hastily out of nervousness. One should not speculate or fill gaps with assumptions. If a detail cannot be remembered, it is better to say so clearly. The statement is recorded and may become important at later stages.

What may happen next

After the statement, the court may order further investigative steps, maintain or modify the procedural situation, or bring the investigation to an end. Precautionary measures may include the obligation to report periodically to the court, the withdrawal of the passport, a prohibition on approaching or communicating with certain persons, bail or a security deposit (fianza), the attachment of assets or, in more serious situations and subject to specific requirements, pre-trial detention.

A stay of proceedings may also be ordered. A final stay (sobreseimiento libre) ends the proceedings for reasons that prevent the criminal case from continuing and has the same effects as an acquittal (that is, the case could not be reopened); a provisional stay (sobreseimiento provisional) may be ordered when, for the time being, there is insufficient evidence, although the case could be reopened if new information emerges. If the prosecution requests the opening of the trial, the judge must assess whether there are reasonable grounds and whether the facts may constitute an offence, under Article 783 of the Criminal Procedure Act. The opening of the trial is not a conviction, but it marks the move to a stage in which the defence must be formally prepared for the trial.

A summons as a suspect calls for prompt and methodical action, not alarm. Reviewing the case file, protecting business information, avoiding unwise contacts and deciding the strategy for the statement with a criminal lawyer are the most important initial steps.

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