Confiscation of the Vehicle and the Instrumentalities of an Offence in Spain: When It Applies and How to Oppose It

Confiscation, which the Spanish Criminal Code calls decomiso, is the definitive loss of the proceeds, instrumentalities and gains of an offence. It is not a penalty but an ancillary consequence, and that nature explains why it can be ordered without a conviction, why it can reach assets belonging to third parties, and why it is argued under rules of its own. In practice it decides whether a vehicle, a phone or a bank account is recovered or lost.

You are under investigation and your vehicle has been seized: what is happening

When the police or the court seize an asset, no confiscation is being enforced yet: the asset is being secured. Article 127 octies.1 CP allows property, means, instrumentalities and gains to be seized or attached and placed in judicial custody from the very first steps of the investigation, in order to guarantee that any confiscation will be effective.

In abbreviated proceedings there is a specific rule for cars: Article 764.4 LECrim allows immediate seizure of the vehicle and retention of its registration document for the time strictly necessary, where an examination of the vehicle is required or in order to secure pecuniary liabilities while solvency has not been established.

The distinction matters: an interim measure can be appealed from day one, without waiting for judgment.

What Article 127 CP reaches

Article 127.1 CP sets the general rule: every penalty imposed for an intentional offence carries the loss of the proceeds derived from it, of the property, means or instrumentalities with which it was prepared or carried out, and of the gains obtained from it, whatever transformations they may have undergone.

Three points that are frequently overlooked:

• Negligent offences. Article 127.2 CP only allows confiscation where the law provides a custodial sentence of more than one year for that negligent offence, and it is discretionary: the court may order it.
• Value-based confiscation. Where for any reason the identified assets cannot be confiscated, Article 127.3 CP allows confiscation of other assets for an amount corresponding to their economic value and to the gains obtained from them.
• Transformations. The rule reaches whatever the asset has been turned into: selling it or reinvesting the money does not place it beyond reach.

Drug offences have a special regime: Article 374 CP subjects confiscation to Articles 127 to 128 with rules of its own, including that assets finally confiscated by judgment may not be applied to civil liability or to costs and are awarded in full to the State. We develop this in our article on asset confiscation in drug trafficking cases.

The vehicle as an instrumentality of the offence

In road safety cases there is a short, dedicated provision. Article 385 bis CP states that the motor vehicle or moped used in the acts covered by that Chapter is deemed an instrumentality of the offence for the purposes of Articles 127 and 128. The Chapter is the one on road safety offences: excessive speed and driving under the influence of alcohol or drugs (Article 379), reckless driving, refusal to submit to testing, driving without a licence (Article 384) and creating a serious risk to traffic (Article 385).

The wording repays close reading: it does not order the vehicle to be confiscated, it classifies it as an instrumentality. That opens the door to Article 127, and with it to Article 128, which is the counterweight. The practical argument is therefore almost never whether the car is an instrumentality, but whether confiscating it is proportionate.

The same Chapter also contains Article 385 ter CP, which allows the court, giving reasons in the judgment, to reduce the prison sentence by one degree in the offences under Articles 379, 383, 384 and 385, having regard to the lesser risk involved and the other circumstances of the case.

The safety valve in Article 128 CP

Article 128 CP is the most direct defence tool against disproportionate confiscation. Where the proceeds and instrumentalities are lawfully tradeable goods and either of these two circumstances applies, the court may decline to order confiscation, or order it only in part:

• That their value is out of proportion to the nature or gravity of the offence.
• That civil liability has been satisfied in full.

A vehicle is by definition a lawfully tradeable good, so the provision applies squarely. The argument works when it comes with evidence: documented current value of the vehicle against the gravity of the specific facts, work or family dependence on the car, outstanding finance and, above all, proof that civil liability has been paid. That second limb of Article 128 connects directly with civil liability arising from crime: paying before judgment not only mitigates the sentence, it may also save the asset.

Vehicle confiscation is especially common in drink-driving and drug-driving cases; our road safety offences page covers the underlying charges in detail.

The other forms: extended, non-conviction based and third-party assets

Alongside ordinary confiscation, the Code regulates three further forms with different requirements, in addition to confiscation of assets transferred to third parties, dealt with in the next section:

• Extended confiscation (Article 127 bis CP). It applies to assets of a person convicted of one of the offences on its closed list, where the court finds, on the basis of well founded objective indications, that the assets derive from criminal activity and their lawful origin is not established. Paragraph 2 lists the indications: disproportion between the value of the assets and lawful income, concealment of ownership through interposed persons or zero-tax territories, and transfers that hinder tracing without valid economic justification. Paragraph 5 excludes it where the criminal activity from which the assets would derive has become time-barred or has already been the subject of an acquittal or a discontinuance with res judicata effect.
• Non-conviction based confiscation (Article 127 ter CP). Available even without a conviction where the unlawful financial situation is established in adversarial proceedings and one of three situations applies: death or chronic illness preventing trial with a risk of limitation, absconding that prevents trial within a reasonable time, or exemption from or extinction of criminal liability. It may only be directed against a person formally charged or against a suspect against whom there are reasonable indications of criminal conduct.
• Assets from prior criminal activity (Articles 127 quinquies and 127 sexies CP). These require cumulative conditions —conviction for an offence under Article 127 bis.1, a context of continued criminal activity, and well founded indications that a relevant part of the assets derives from it— plus an express threshold: a benefit exceeding 6,000 euros. Article 127 sexies adds presumptions about assets and expenditure in the six years before the proceedings opened, which the court may disapply where they prove incorrect or disproportionate.

Article 127 septies CP completes the picture: where confiscation cannot be enforced, the court may order by reasoned decision the confiscation of other assets, even of lawful origin, for a value equivalent to the unenforced part.

Third parties acting in good faith

This is the commonest scenario with vehicles: the car is registered to a partner, a company or a finance house. Article 127 quater CP allows confiscation of assets transferred to third parties in only two situations, and both require a subjective element:

• For proceeds and gains, where the third party acquired them knowing their unlawful origin, or where a diligent person would have had reason to suspect that origin in the circumstances of the case.
• For other assets, where they were acquired knowing that this made confiscation more difficult, or where a diligent person would have had reason to suspect as much.

Paragraph 2 contains a presumption worth knowing before signing any transfer: it is presumed, unless proved otherwise, that the third party knew or had reason to suspect where the assets were transferred to them gratuitously or for a price below real market value.

Procedurally, the third party is not left outside. Article 803 ter a) LECrim requires the court, of its own motion or on application, to join to the proceedings anyone who may be affected by confiscation where there are facts from which it may reasonably be inferred that the asset belongs to a third party, or that third parties hold rights over it. An appeal lies against a decision refusing that intervention. And where the affected party states that they do not oppose the confiscation, the intervention is not ordered, or is brought to an end.

Before judgment: custody and early realisation

A seized asset can be lost in physical terms before anyone decides on confiscation. The LECrim provides two routes:

• Destruction of items (Article 367 ter LECrim), where it is necessary or advisable because of the nature of what has been seized or the real or potential danger of storing it, after hearing the Public Prosecutor and the owner if known.
• Early realisation (Article 367 quáter LECrim), for lawfully tradeable items and without waiting for the judgment to become final, in listed situations: perishable goods, express abandonment by the owner, conservation costs higher than the value of the item, danger to public health or safety or risk of a significant loss of value, substantial depreciation over time, and failure of the owner to respond when duly required. A vehicle immobilised for years fits naturally into the fifth of those.

Article 367 quáter.2 itself requires the interested party to be heard and rules out realisation where an appeal against the attachment or confiscation is pending, or where the measure may prove disproportionate in the light of its effects on the interested party and of the weight of the indications on which the interim decision was based.

How to oppose it

• Challenge the classification of the asset. An instrumentality is what the offence was prepared or carried out with; mere presence at the scene does not make an asset an instrumentality.
• Invoke Article 128 CP with evidence: valuation or market value of the asset against the gravity of the facts, and proof of payment of civil liability.
• Attack the indications behind extended confiscation. Article 127 bis requires well founded objective indications; disproportion is countered by evidencing lawful income.
• Evidence the third party's position: real market price, documentation of the transfer and diligence in checking, to rebut the presumption in Article 127 quater.2.
• Appeal the interim measure and oppose early realisation, relying on the disproportion ground in Article 367 quáter.2.b) LECrim.
• Watch the time in custody: the longer it runs, the likelier early realisation for depreciation becomes.

What happens to confiscated assets

Article 127 octies.3 CP sets their destination: assets, instrumentalities and gains confiscated by a final decision are awarded to the State, which gives them the use provided by law or regulation, unless they must be applied to compensating victims. That exception in favour of victims matters and has to be raised expressly, because it does not operate by itself. In drug trafficking cases the special rule in Article 374 applies, which prevents that application to civil liability.

There is also a standalone route: Article 803 ter e) LECrim governs autonomous confiscation proceedings, applicable in particular where the prosecutor confines the indictment to seeking confiscation while expressly reserving its determination for those proceedings, or where the offender has died or cannot be tried because of absconding or incapacity. Where the action has been reserved, the proceedings may only begin once the criminal case has ended with a final judgment. For digital assets, seizure and realisation have particular features covered in our article on the EU asset recovery and confiscation directive.

If an asset has been seized in a criminal case, or you have been joined to proceedings as an affected third party, it is worth acting before judgment: afterwards the margin is narrower. You can contact us at +34 91 078 65 74.