From the investigating judge to the prosecuting attorney: the new paradigm of economic criminal law and corporate defense in Spain
The announced reform of the Organic Law on Criminal Procedure (LOECrim), submitted to Parliament after its approval by the Council of Ministers, heralds an unprecedented structural change in the Spanish criminal justice system: a shift from a judge-centric model to one in which the Prosecutor directs the investigation. This change — the most profound in over a century — not only redefines procedural dynamics but also forces companies and their executives to radically rethink their compliance and defense strategies against economic crime risks.
The approval of the draft Organic Law on Criminal Procedure by the Executive and its submission to Parliament for processing constitutes the largest procedural change in Spain in over a century, as it proposes that the Attorney General's Office, instead of the investigating judge, will handle criminal investigations. This change entails not only a profound doctrinal and practical transformation of the criminal process but also has immediate consequences in the realm of economic criminal law and the defense of companies and their executives.
Historically, the Spanish criminal justice system was based on a model in which the function of investigating crimes was assigned to investigating judges, who were conceived as neutral guarantors of rights during the investigation phase. However, after decades of criticism for their rigidity, slowness, and inadequacy in dealing with complex cases of contemporary economic crimes, the government has decided to align the Spanish legal system with models from other European jurisdictions, where prosecutors, as representatives of the state and the law, direct investigations and judges ensure respect for fundamental rights.
This procedural change is not merely technical; it responds to a shared diagnosis by legal professionals and judicial authorities: the need to modernize and streamline a criminal process that is unable to respond effectively to the sophisticated techniques of concealment, fraud, corruption, and money laundering that characterize transnational economic crimes. With the new wording, the judicial police will functionally depend on the Prosecutor's Office, which will make strategic decisions in the investigation, from the coordination of evidence to the imposition of precautionary measures, with judicial control focused more on safeguarding fundamental rights than on the operational management of the investigation.
One of the most sensitive aspects of this reform lies in the relationship between the direction of investigations by the prosecutor and judicial independence. To compensate for the change in functions, the law provides for the establishment of a guarantee judge responsible for validating the most intrusive decisions affecting fundamental rights (such as searches, interceptions, or preventive detention), as well as the possibility for this judge to confirm or revoke decisions made by prosecutors in matters of constitutional importance. This duality of functions inevitably raises questions about the balanced distribution of power in the investigation phase, as well as about the real effectiveness of judicial control over the prosecutor's decisions, which may adopt a proactive approach, especially in complex economic crimes.
From the perspective of economic criminal defense, this reform requires a rethinking of traditional strategies. In the previous system, defense teams — including the legal departments of companies — focused their efforts on maintaining a tactical dialogue with the investigating judge, alongside their relationship with the Prosecutor's Office, seeking to influence the obtaining and evaluation of evidence. With the new structure, in which the prosecutor takes the lead in the investigation, defenses must focus their efforts on challenging the prosecutor's decisions before the court, anticipating requests for precautionary measures, and, above all, strengthening internal prevention of criminal risks through more robust and proactive compliance systems.
In this context, compliance programs lose their purely documentary nature and become strategic tools for legal survival: it will no longer be sufficient to demonstrate the existence of a formal system for preventing crimes; it will be necessary to prove that this system was effective, that it was applied with due diligence, and that it was able to anticipate and prevent the risk that crimes would be committed. This implies a greater investment in risk analysis, ongoing audits, specialized training, effective oversight by corporate governance bodies, and detailed documentation that allows convincing the Prosecutor's Office not only of the existence of internal procedures but also of their real impact on the organization's conduct.
Furthermore, the reform introduces changes affecting procedural elements related to timelines and the closure of investigations. Some recent modifications to the Spanish procedural framework, such as the amendment of Article 324 of the Criminal Procedure Law, which regulates the maximum timelines for the completion of investigations, have generated controversy by establishing rigid timelines that, interpreted literally, could lead to automatic decisions to close investigations despite relevant evidence of criminality, with direct effects on the defense of the individuals being investigated. This has sparked a doctrinal debate on the necessity to interpret these limits teleologically to ensure that they do not become barriers to impunity or defenselessness.
The exclusion of classic figures from the Spanish criminal process, such as popular prosecution exercised by political parties and unions, is also an innovative element with significant consequences for the prosecution of economic crimes and corruption. The new law limits this type of prosecution to individuals with a specific legitimate interest, which reduces the risk of proliferation of proceedings initiated by actors with political or media objectives, but at the same time further concentrates the role of prosecution within the Prosecutor's Office as the primary holder of criminal action in economic matters.
Beyond the strictly national scope, the reform is part of a broader European context in which supranational institutions, such as the European Public Prosecutor's Office (EPPO), have been shaping new standards of cooperation and investigation into crimes affecting the financial interests of the Union. Although the EPPO operates with its own powers, the interaction between the direction of national prosecutions and European investigations poses additional challenges regarding the coherence of criteria, the protection of fundamental rights, and the effectiveness of cross-border cooperation, which must be specifically analyzed in light of the evolution of the case law of the Court of Justice of the European Union, particularly concerning judicial review of investigative acts.
Finally, it cannot be overlooked that this reform process takes place in a climate of intense debate within the legal community. Some argue that the timing of this transformation is inappropriate and could generate uncertainties in its practical application, particularly in complex cases of long-term economic crimes involving multiple parties. However, there is also consensus that the reform represents an opportunity to resolve structural problems in the Spanish criminal justice system that have been the subject of criticism for decades, consolidating a more dynamic and efficient model that, if implemented with the necessary guarantees, could offer a higher level of legal security to both legal operators and those investigated.
In summary, the reform of the LOECrim entails a transformation that goes far beyond a mere change in the ownership of investigations: it redefines the logic of the criminal process, positions the Prosecutor's Office at the operational center of criminal prosecution, and compels economic entities to develop a preventive and strategic defense that is deeply integrated with their internal risk control systems in order to effectively address the new scenario of economic crime in Spain.
Article by Lydia García, junior associate of the Economic Criminal Law department at ECIJA Madrid.
