Since 2015, following the amendment of the Criminal Code by LO 1/2015, of 30 March, crimes against the Public Administration, more specifically, bribery, influence peddling and embezzlement, can also affect foreign officials, not only officials from the EU or EU member countries (who were already subject to this regulation since 2010, by the reform of LO 5/2010, of 22 July). According to Article 427 of the Criminal Code (which, although it refers to bribery, refers to it in the case of influence peddling and embezzlement), Spanish courts have jurisdiction to prosecute officials from any other state. The first three paragraphs of this article establish the applicability of these provisions to “any person who: a. Holds a legislative or judicial office, or any other public office, or any other public office, or any other public office, or any other public office”. Holds a legislative, administrative or judicial office (…) b. Exercises a public function, including a public body or public undertaking (…) c. An official or agent of a Member State or of any other foreign country”.
Well, focusing on the context of the jurisdiction of the Spanish Courts, the scenario arises where an official from a third country commits a bribery offence in Spain. In such a situation, the application of the Spanish Criminal Code is unequivocal and direct, insofar as the Spanish Courts have jurisdiction to judge and apply the corresponding national law, regardless of the nationality of the individual involved, under the principle of territoriality, which establishes that a country has jurisdiction over crimes committed within its borders.
However, the complexity arises when the offence is committed abroad. If a foreign official commits a bribery offence in another country, should a Spanish judge qualify such conduct through the Penal Code of the foreign country or the Spanish one?
The answer is not as simple as in the first case, since the application of the foreign Criminal Code by a Spanish Court could be considered an undue interference in the sovereignty of the country in which the crime was committed, given that it would be exercising powers that do not correspond to the Audiencia Nacional (the competent body because the crime was committed abroad), but to foreign judicial bodies, which would be a case of undue interference in foreign sovereignty expressly prohibited in Article 4.2 of the United Nations Convention against Corruption of 31 October 2003, which states that: “Nothing in this Convention shall entitle a State Party to exercise, in the territory of another State, jurisdiction or functions that are reserved exclusively for its authorities by the domestic law of that State”.
In order to safeguard the sovereignty of each country, Spanish courts should therefore apply the Spanish Penal Code to foreign officials, qualifying such alleged bribery according to our Penal Code. However, what happens if in the State where the act has been committed it is not a crime?
In such a case, there would be the paradox of punishing a conduct in Spain that is not criminal in the place where it was carried out (remember that these crimes do not have the universal character that the most basic human rights do). To solve this problem, the Spanish court would have to assess whether what was done in that country is criminal or not, i.e. apply a foreign rule to a foreigner, which, although it is not imposing a sentence according to a foreign rule (a function of the judiciary), is still a kind of impersonation of the proper function of foreign judicial bodies (a priori qualifying an act as possibly criminal or not according to a foreign rule).
Therefore, in all crimes with an international impact, and especially in those related to foreign officials, there are a series of questions that are difficult to solve, which in this criminal field requires a detailed study of the case in question.
