The offence of illicit enrichment: a pioneering provision with an uncertain future

Organic Law (LO) 14/2022 introduced surprising innovations to the field of Spanish Criminal Law. Among them, the introduction of Article 438 bis of the Criminal Code stood out. Continuing from our previous publication, in which we briefly addressed the offence of illicit enrichment, on this occasion Ayuela Jiménez shall analyse in greater detail the offence of illicit enrichment, one of the most recent—and at the same time most controversial—provisions in our criminal legal order.

1. Origins

As stated in the preamble to LO 14/2022, the offence of illicit enrichment is presented as a “pioneering provision” in the fight against corruption, drawn from various international and European recommendations on anti-corruption measures.

However, the proposal to incorporate this provision was first put forward in the wake of the 2008 economic crisis and was the subject of various parliamentary initiatives that ultimately failed to materialise. The offence was finally introduced in 2022 and entered into force on 12 January 2023, alongside other far-reaching reforms such as the amendment of the offence of misappropriation of public funds, in a context of considerable public concern.

It should also be noted that the body of supranational instruments invoked by the legislature, both at international level and at European Union level, does not mandate the criminalisation of this offence. At the international level, the United Nations Convention against Corruption of 2003 merely provides that each State Party “shall consider adopting” the measures necessary to criminalise illicit enrichment, but always “subject to its constitution and the fundamental principles of its legal system”. The obligation, therefore, is not to criminalise, but to consider the possibility of doing so.

At European Union level, Directive (EU) 2026/1021 of 29 April 2026 does require Member States to criminalise an offence related to enrichment, but one of very different contours to the Spanish provision: its Article 9 requires the sanctioning of so-called “enrichment from corruption offences”, which requires that the public official acquire, possess or use assets knowing that they derive from corruption offences committed by another public official, thus bringing it closer to aggravated handling of stolen goods or money laundering than to the offence under Article 438 bis of the Criminal Code. Indeed, Europe has generally favoured mechanisms such as money laundering and confiscation to hold persons accountable where it is not possible to prove the specific corruption offence committed.

2. The offence of illicit enrichment

In simple terms, the offence punishes a public authority who obtains a patrimonial increase exceeding EUR 250,000 above their declared income during the exercise of public office—or during the five years following the cessation thereof—without providing any justification for such increase. The crux of the offence does not lie in becoming enriched, but in failing to demonstrate the origin of the increase, which would thus be deemed unjustified and, accordingly, illicit.

By means of this provision, the legislature seeks to circumvent the evidentiary difficulties inherent in corruption offences, enabling punishment where a public servant’s assets are far in excess of what would correspond to their legitimate income and, when asked about the origin thereof, they fail to justify its lawful provenance.

Thus, in force since 12 January 2023, illicit enrichment becomes a catch-all provision that focuses on unjustified patrimonial increase rather than on the possible corruption offence that may have given rise to such enrichment.

From a doctrinal standpoint, it is difficult to identify precisely which legal interest the offence protects. It is commonly said to protect the Public Administration in general, but this would be too broad and abstract an interest, and other options have been proposed by scholars, such as its prestige or the probity of those who serve it. A segment of the doctrine even maintains that the offence protects no legal interest at all, since the patrimonial increase may derive from a civil or administrative wrong or may have a perfectly lawful origin. All of this raises a serious conflict with the principle of criminal harmfulness.

Closely linked to this issue is the debate on the nature of the offence. The legislature asserts that it is an offence of disobedience, placing the essence of the wrongdoing in the open refusal to respond to the formal request. The difficulty is that, in itself, a mere refusal to respond could scarcely harm a legal interest worthy of criminal protection with the severity required by the prescribed penalty; moreover, the fine is calculated on the basis of the “benefit obtained”, a concept incompatible with a mere breach of information duties.

For this reason, some scholars argue that what is relevant is the unjustified patrimonial increase, thus configuring an offence of commission; whilst other authors maintain that we are faced with a complex offence in which both elements—the increase and the refusal—are essential and indispensable for criminal liability.

3. Configuration and constituent elements

In the first place, this is a special offence in the strict sense, the active subject of which can only be a public authority, with public officials falling outside the scope of the offence. For these purposes, Article 24.1 of the Criminal Code reserves the status of authority to those who, individually or as members of a collegiate body, exercise their own command or jurisdiction, further equating with this category—inter alia—members of parliament and members of the Public Prosecution Service.

This choice is debatable, as it excludes public servants with significant decision-making powers of which they could abuse. Moreover, the circle is further narrowed because the regulations requiring patrimony declarations are not universal, such that this limitation significantly reduces the practical application of the offence.

Pursuant to the configuration of Article 438 bis of the Criminal Code, the constituent elements of the offence are as follows:

• Qualified patrimonial increase: that a patrimonial increase exceeding EUR 250,000 has occurred. Such increase may arise either from the acquisition of assets or rights or from the reduction of liabilities.

This quantitative threshold, absent from international conventions and comparative law—which tend to employ formulations such as “significant increase”—operates as an objective condition of punishability intended to restrict the offence to the most serious cases.

• Temporal element: that such increase occurred during the exercise of office or within the five years following cessation thereof.
• Disproportion with lawful income: that such increase does not correspond to the lawful income of the authority.
• Formal request: that the authority has been duly required by the competent body designated to verify the justification of such patrimonial increase.
• Refusal to comply with the request: that the authority has openly refused to duly comply with such requests.
• As regards the subjective element, the offence only admits intentional commission. However, given that it is an eminently objective offence, it is unclear what the intent must encompass.

However, these elements present imprecise contours: it is unclear when the formal request is deemed to have been duly answered, nor when one is faced with an open refusal; nor even how many requests would be necessary; nor whether providing a wholly or partially inaccurate or false response also constitutes an offence.

Nor is it determined which bodies are competent to scrutinise assets and issue the formal request, since Spain lacks legislation imposing patrimony declarations on all authorities, designating a supervisory body, and regulating the grounds, scope and procedure thereof. It would be particularly questionable to accept, as the explanatory memorandum of LO 14/2022 suggests, that the judicial bodies should issue such requests, since scrutinising such assets does not fall within their competences.

4. Penalties

The penalty prescribed for illicit enrichment is imprisonment for a term of six months to three years, a fine of between one and three times the benefit obtained, and special disqualification from public employment or office and from the exercise of the right to stand for election for a period of two to seven years.

5. A controversial provision

Far from being an uncontroversial provision, the offence of illicit enrichment has been the subject of intense debate in all legal systems that have incorporated it; in Italy, Portugal and Ukraine it was declared unconstitutional, although only in the latter two was it subsequently reintroduced.

The common denominator of the objections raised by scholars is that the legislature has attempted to resolve the difficulty of proving the specific corruption offence through substantive law. Thus, the offence constructs criminal liability on the basis of an objective fact—an unjustified patrimonial increase exceeding EUR 250,000—without requiring the prosecution to prove the illicit origin of the assets: once the disproportion between assets and income is established, the enrichment is presumed to be of criminal provenance and it falls to the accused to justify its lawful origin.

This mechanism has led a broad segment of the doctrine to denounce a reversal of the burden of proof, with direct repercussions on the presumption of innocence and the privilege against self-incrimination.

Indeed, part of the doctrine characterises the provision as an “offence of suspicion”, in which the presumption of guilt operates almost automatically, without requiring any connection between the increase and a specific act of corruption to be proved, thus straining the right to the presumption of innocence under Article 24 of the Constitution and undermining the in dubio pro reo principle by attributing illicit provenance in cases of doubt as to the origin of the assets.

Greater difficulties arise with respect to the privilege against self-incrimination, since the accused is compelled to explain the origin of the increase, placing them before a paradoxical dilemma: to respond and risk being convicted of the underlying offence, or to remain silent and be convicted of illicit enrichment.

To the foregoing must be added that what the offence of illicit enrichment seeks to punish is already covered in our legal order by pre-existing provisions. What is criminal is not the increase of one’s assets, but having done so by abusing public office—conduct which is already criminalised in the legal system. In particular, bribery in consideration of office (Art. 422 of the Criminal Code) and subsequent bribery (Art. 421 of the Criminal Code) enable the punishment of a public servant who has received gifts, even where the specific corrupt agreement is not proved.

Likewise, the legal order already has other suitable instruments for these purposes—money laundering and self-laundering, extended confiscation, or administrative sanctions for failure to declare assets—to which must be added the risk that such a broadly defined offence may be employed as a weapon against political opponents. For all these reasons, some conclude that Article 438 bis of the Criminal Code is unconstitutional and constitutes an example of punitive populism that is virtually unenforceable.

6. The uncertainty of practice

Despite its theoretical impact, this is an offence of limited practical application in Spain. In this regard, to date no judicial decisions have been handed down applying the offence of illicit enrichment under Article 438 bis of the Criminal Code in Spain, which is explained both by its recent entry into force and by its non-retroactivity: it is only applicable to patrimonial increases occurring after 12 January 2023.

It will therefore be necessary to await the first pronouncements of our courts to ascertain how the constituent elements of the offence will be interpreted in practice and how the constitutional concerns raised by this provision will be resolved.

7. Conclusion

The offence of illicit enrichment constitutes a pioneering provision in the fight against corruption that aligns Spain with some of the most advanced legislative frameworks in its surroundings, yet whose technical configuration raises significant doctrinal and constitutional questions that remain unresolved. Its limited scope of application and the absence, for the time being, of judicial decisions require that the evolution of this provision be followed with caution.