Corporate Intelligence and Private Forensics

When Defense Requires Private Intelligence

There are proceedings where passive defense is not enough. When the prosecution has Judicial Police, UCO, AEAT and Prosecutor, and the investigated person or company needs to establish facts by their own means, corporate intelligence and forensic expert evidence are decisive tools.

Types of Confidential Investigation

• Private detective: documentary report with probative value if legitimate interest exists and fundamental rights are respected.
• Asset investigation: location of property to ensure reparation or execute forfeiture.
• Alibi verification: documentary, witness and technical to support client's version.
• Communications traceability: lawful analysis of email, messaging and networks with GDPR compliance.
• Hostile witness identification: credibility and background verification.
• Corporate background check: reputational due diligence on counterparty or partners.

Forensic Expertise

We coordinate with experts selected by specialty and case demand: accounting to refute harm or reconstruct flows; IT to challenge metadata or reconstruct deletions; handwriting for signature and document authenticity; documentary for forgeries; biological for DNA and traces; ballistics and accident reconstruction.

OSINT and Financial Intelligence

OSINT (Open Source Intelligence) allows building relational maps, identifying hidden UBOs, locating assets and tracing movements from public records, social networks, press, BORME, Land Registry, international commercial registries and specialized databases. All information is obtained through lawful channels and documented to produce report with procedural value.

Chain of Custody

Procedural validity of evidence obtained by these means depends on three factors: lawfulness in obtaining; documented chain of custody from origin; contradictory incorporation to the case file with expert ratification.

Requirements of an adequate organisation and management model (Art. 31 bis 5 of the Criminal Code)

Corporate intelligence and forensic analysis are not ends in themselves: they form part of the organisation and management model that Article 31 bis 5 of the Spanish Criminal Code requires in order to exempt or mitigate the criminal liability of a legal person. That provision sets out, in closed terms, the elements the programme must contain: identification of the activities in whose context the offences to be prevented may be committed (the so-called risk map), protocols or procedures that define how the entity forms its will and adopts and carries out decisions, and models for managing financial resources adequate to prevent the offences.

The same provision calls for an internal reporting channel, an obligation to inform of possible risks and breaches the body charged with overseeing the model, a disciplinary system that adequately sanctions failure to comply with the measures, and periodic verification of the model, with its amendment whenever significant breaches come to light or there are changes in the organisation, the control structure or the activity carried out. Intelligence and forensic work supply precisely the evidence that feeds the risk map, the periodic verifications and, where appropriate, the disciplinary response.

It bears stressing that the model does not operate as a mere documentary formality. Effectiveness requires that the programme was adopted and implemented effectively before the offence was committed, that it is genuinely applied day to day, and that it is proportionate to the entity's actual size and risks. A paper compliance programme, drafted but not lived, will struggle to support an exemption. We design and review models with a view to their later proof before a judge, not merely to their existence on paper.

The autonomous oversight body and the burden of proving the exemption

Article 31 bis 2 of the Criminal Code conditions the exemption, where the offence has been committed by directors or representatives, on the supervision of the functioning and observance of the model having been entrusted to a body of the legal person with autonomous powers of initiative and control, or one legally charged with supervising the effectiveness of internal controls. That autonomy is essential: the compliance officer must have the resources, access to information and reporting capacity that make them independent of those who might commit the very offence they are tasked with preventing.

In small legal persons, Article 31 bis itself allows the oversight functions to be assumed directly by the management body, which lightens the structure without giving up the substance of control. In any configuration, what matters is that there be real supervision, properly resourced, that detects, investigates and reacts to risks. Corporate intelligence and forensic analysis are the operational tools through which that body discharges its detection and verification function.

The burden of proving that the model was adequate, that it was implemented and that it worked falls, in practice, on the defence of the legal person, as the party invoking the circumstance in its favour. Hence the importance of generating and preserving traceable evidence: minutes, reporting-channel records, internal-investigation reports, dated risk assessments and proof of the corrective measures taken. We prepare that documentation with forensic rigour so that it can support the exemption or, where it applies only in part, the mitigation provided for in the closing words of Article 31 bis 2.

The company under investigation: its own procedural status, defence and plea agreement

The criminal liability of the legal person is autonomous from that of the natural person. Article 31 ter of the Criminal Code allows the entity to be held liable even where it has not been possible to identify the specific individual who committed the offence or to direct proceedings against them, and prevents circumstances affecting the natural person's guilt, or aggravating their liability, from excluding or altering the liability of the legal person. Article 31 quinquies, in turn, modulates this liability for the State and certain public entities. The company therefore appears in the proceedings with a status of its own.

Investigated as such, the legal person has the right to a representative specifically appointed for the proceedings, to be informed of the accusation, to remain silent and not to testify against itself, not to plead guilty, and to exercise its right of defence with legal counsel. Its strategy may diverge from that of the individuals involved, and frequently must, because their interests do not coincide. A rigorous prior internal investigation enables the entity to reach the proceedings knowing the facts and deciding its position on a solid footing.

A plea agreement by the legal person follows its own rules and must be entered through its representative with special authority, without the decision of the natural persons binding the entity or vice versa. We advise on when to cooperate, when to share the results of the internal investigation, and how to structure a possible plea that takes advantage of the available mitigating circumstances, always weighing the reputational impact and business continuity.

Penalties for the legal person (Art. 33.7), succession in M&A and lawfulness of internal evidence

The consequences for a legal person are not measured against the penalty scheme for natural persons. Article 33.7 of the Criminal Code lays down its own catalogue: a fine by daily units or proportional, dissolution of the entity, suspension of activities, closure of premises and establishments, prohibition on carrying out in future the activities in whose exercise the offence was committed, favoured or concealed, disqualification from obtaining public subsidies and aid, from contracting with the public sector and from enjoying tax or social-security benefits and incentives, and judicial intervention to safeguard the rights of workers or creditors. Several of these measures may be temporary and carry a heavy operational impact.

Article 130.2 of the Criminal Code closes off an avenue of evasion: the transformation, merger, absorption or division of a company does not extinguish its criminal liability, which passes to the resulting or absorbing entity or entities, with the penalty modulated according to the proportion the original legal person bears to it; nor does disguised or merely apparent dissolution extinguish it. This is why criminal due diligence in mergers and acquisitions is indispensable: the acquirer may inherit the risk. Corporate intelligence applied to due diligence uncovers contingencies before closing and allows contractual safeguards to be put in place.

The validity of all the above depends on evidence having been obtained lawfully. Internal investigations must respect data protection, the secrecy of communications and the employee's privacy, observing the principles of proportionality, suitability and necessity, and giving prior notice of the scope of monitoring over corporate devices. The employee under investigation retains their rights, and evidence obtained in breach of fundamental rights may be declared null and may taint the rest of the material. We conduct intelligence and forensic analysis with a lawfulness check from the outset, so that the result is usable in any eventual criminal proceedings.