Victim Compensation and Civil Liability Arising from Crime in Spain: Who Pays and How Much

Almost every criminal case in Spain carries a second account that is decided alongside the sentence and usually enters the conversation too late: civil liability. A convicted person does not only serve a sentence, they also answer for the money. And people who have not been accused of anything may end up paying: companies, insurers, vehicle owners, public authorities. It is worth understanding the full map before the judgment closes it.

You have been reported and are also facing a compensation claim: where to start

The starting point is Article 109.1 CP: committing an act described by law as an offence creates an obligation to repair, in the terms provided by law, the damage and losses it has caused. Paragraph 2 adds an option that is often forgotten: the injured party may in every case choose to pursue civil liability before the civil courts.

Procedurally, Article 100 LECrim follows the same logic: every offence gives rise to a criminal action to punish the offender and may also give rise to a civil action for restitution of the property, reparation of the damage and compensation for losses caused.

The practical consequence is that two different questions are decided in the same proceedings: whether there was an offence, and who must pay how much.

What it covers: restitution, reparation and compensation

Article 110 CP breaks civil liability down into three concepts that are not synonyms:

• Restitution (Article 111 CP). Returning the same property wherever possible, together with payment for any deterioration or loss of value determined by the court. Its reach is notable: it applies even where the property is held by a third party who acquired it lawfully and in good faith, unless it was acquired in the form and with the requirements that the law lays down to make it unrecoverable.
• Reparation of the damage (Article 112 CP). This may consist of obligations to give, to do or not to do, which the court sets having regard to the nature of the damage and to the personal and financial circumstances of the offender, deciding whether they must be performed personally or may be carried out at the offender's expense.
• Compensation for material and moral damage (Article 113 CP). It covers not only the loss caused to the injured party but also that suffered by their family members or third parties. This is the route through which the moral damage of relatives enters the case.

Article 114 CP adds a corrective that the defence rarely exploits: where the victim contributed by their own conduct to the damage or loss suffered, the court may moderate the amount of reparation or compensation.

Who answers first

Article 116.1 CP sets the general rule: everyone criminally liable for an offence is also civilly liable if damage or loss follows from the act, and where there are two or more offenders the court sets each one's share. Paragraph 2 fixes the order of recovery: principals and accomplices are jointly liable among themselves for their own shares and subsidiarily liable for those of the others, with subsidiary liability enforced first against the assets of the principals and then against those of the accomplices, always without prejudice to recovery by whoever has paid.

Paragraph 3 extends the rule to legal persons: criminal liability of a company carries civil liability in the terms of Article 110, jointly with the individuals convicted of the same facts.

There are also situations of criminal acquittal with civil condemnation: Article 118 CP preserves civil liability under several of the defences in Article 20, and Article 119 CP requires the court that acquits on those grounds to determine civil liability, unless the actions have been expressly reserved.

Subsidiary civil liability

This is where the proceedings reach people who are not accused of anything. Article 120 CP declares civilly liable, in default of those criminally liable, five categories:

• Guardians with full powers of representation who live with the person they support, where there is fault or negligence on their part.
• Owners of publishing houses, newspapers, magazines, radio or television stations and any other medium of communication, for offences committed using the media they own.
• Owners of premises where an offence is committed, where those who manage or run them, or their employees, have breached police regulations or orders of the authorities connected with the offence, such that it would not have occurred without that breach.
• Individuals and legal persons engaged in any kind of industry or commerce, for offences committed by their employees, representatives or managers in the performance of their duties or services. This is the head under which a company ends up in the case.
• Owners of vehicles capable of creating risks for third parties, for offences committed in their use by employees, representatives or authorised persons.

Article 121 CP adds public authorities, which are subsidiarily liable for damage caused by officials, agents and contractors in the exercise of their duties where the harm is a direct consequence of the operation of the public services entrusted to them, with no double recovery, and with a demanding procedural rule: where civil liability of the official is claimed in the criminal proceedings, the claim must be directed simultaneously against the public body allegedly liable in the subsidiary line.

The insurer and the party enriched by the offence

Two figures work outside that scheme and should not be confused with it:

• Article 117 CP. Insurers that have assumed the risk of pecuniary liabilities arising from the use or operation of any property, business, industry or activity are direct civil debtors up to the limit of the compensation established by law or agreed in the policy, without prejudice to their right of recovery. They do not answer in default of anyone: they answer first hand.
• Article 122 CP. Anyone who has gratuitously received a share in the proceeds of an offence must restore the property or make good the damage up to the amount of their share. No offence or knowledge is required: it is enough to have received, without consideration, what comes from the crime. This is the route used to recover assets transferred to relatives or companies.

How the amount is set

Article 115 CP imposes a specific duty to give reasons: when finding civil liability, courts must set out with reasons the bases on which the amount of damages and compensation rests, and may fix that amount in the judgment itself or at the enforcement stage.

Where the judgment sets no figure, Article 794.1 LECrim applies: during enforcement any party may request evidence to determine it, with a common ten-day period for the other parties; the court rejects evidence that does not relate to the bases fixed in the judgment, and after hearing the parties for five days it fixes the amount by order within the following five days. The order of the Criminal Court may be appealed to the Provincial Court.

That reference to the bases is decisive: what was not claimed and proved at trial cannot be improvised at the enforcement stage. For personal injury, the traffic accident scale is commonly used as a guiding criterion; we cover it in our article on compensation for victims of violent crime.

Exercise, waiver and reservation of the civil action

The LECrim organises the civil action with rules that condition what can be claimed later:

• Article 108. The civil action must be brought together with the criminal action by the Public Prosecutor, whether or not there is a private prosecutor; if the injured party expressly waives it, the Prosecutor confines itself to seeking punishment.
• Article 109. When the injured party gives evidence, the court clerk informs them of their right to become a party and to waive or not the restitution, reparation and compensation.
• Article 110. They may become a party before the charging stage; and failing to appear does not amount to waiver, which must be clear and unequivocal.
• Article 112. Where only the criminal action is brought, the civil action is deemed brought as well, unless it is waived or expressly reserved for after the criminal trial. The same provision allows a waiver to be revoked by judicial decision where the consequences of the offence prove more serious than foreseen, or where the waiver may have been conditioned by the victim's relationship with one of those responsible, always before the charging stage.
• Articles 111 and 114. While the criminal action is pending, the civil action cannot be pursued separately, and once criminal proceedings are under way no civil suit may continue on the same facts.
• Articles 115 and 116. Death of the offender extinguishes the criminal action, but the civil action survives against heirs and successors before the civil courts; extinction of the criminal action does not carry the civil one with it unless a final judgment has declared that the fact did not occur.

Where the injured party wants to act with its own legal team, the route is private prosecution, which allows a claim different from the Prosecutor's.

Securing payment: bail, attachment and the vehicle

A conviction with no assets behind it is not collected, which is why securing measures start during the investigation. Article 589 LECrim requires that, where there are indications of criminal conduct against a person, they be ordered to provide security sufficient to cover the pecuniary liabilities, with attachment of sufficient assets ordered in the same decision if the security is not provided; the amount may not be less than one third more than the probable total of those liabilities.

In abbreviated proceedings, Article 764 LECrim allows interim measures to secure pecuniary liabilities, including costs, by way of order and in a separate file, applying the rules of civil procedure. Paragraph 3 requires the insurer or the Insurance Compensation Consortium to provide security up to the limit of compulsory insurance, and paragraph 4 allows immediate seizure of the vehicle and retention of its registration document while solvency is not established.

Enforcement, and what happens when there is nothing to pay with

Article 989 LECrim makes civil liability findings provisionally enforceable under the rules of civil procedure and, for anything not regulated by criminal legislation, refers to the enforcement provisions of that law. It adds a powerful tool: the court clerk may entrust the State Tax Administration Agency, or the regional tax authorities, with the asset investigation needed to disclose the convicted person's current income and assets and those they acquire until civil liability has been satisfied.

Two consequences follow: the debt does not lapse on release from prison and future assets remain exposed; and payment, in full or in part, has criminal effects of its own, because it weighs on suspension of the sentence and may support the mitigating circumstance in Article 21.5 CP if it arrives before the trial hearing.

What can be argued

• The head of civil liability. Under Article 120.4 the relationship of dependency and the connection with the performance of duties or services must be proved; a formal employment contract is not enough.
• The extent of the damage. Moral damage to third parties under Article 113 requires evidence, not assertion.
• Contribution by the victim, for the moderation allowed by Article 114 CP.
• The limits of the policy. Direct liability under Article 117 runs up to the statutory or contractual limit, and much of the final figure is decided there.
• The bases for quantification. They must be argued at trial, not at enforcement, where Article 794.1 LECrim prevents any departure from them.
• Legal costs, which follow their own rules, explained in our article on who pays the costs of criminal proceedings.

If a compensation claim has been made against you, or you are the one who has to bring it, the civil strategy should be set at the same time as the criminal one. You can contact us at +34 91 078 65 74.