A man accused of fraud, undue appropriation and other economic crimes has been cleared by the Malaga Appeal Court (Criminal Division). Prosecutors claimed penalties of more than 4 years in prison.
The Court embraced the allegations pronounced in the public hearing by the defendant’s lawyer, Antonio Pedro Rodríguez Bernal, for which was applicable to the case the doctrine of “lifting of corporate veil” in accused’s favour. The Court determined that no punishment must be held against a company’s administrator if such a company was artificially created with the only purpose to operate fictitiously in the commercial traffic and that circumstance was well known by the plaintiff.
Read the full article in Spanish.
Sometimes foreigners in Spain are involved in criminal proceedings or on the verge of being in criminal troubles. Obviously, they are not familiar with our criminal procedure. If you or a close relative are criminal trouble, you must read this article.
Detention
Criminal proceedings begin when the person is detained and driven to the Police Station. There, the detainee will be under arrest up to he is brought to the Court.
Although the time of arrest cannot exceed 72 hours, a recent judgement coming from Constitutional Court held that the Police is not allowed to retain the detainee beyond the time absolutely necessary. So it is usual the detainee is taken to Court in a short period of 24 hours from the detention.
Statement at the Police Station
After having done all mandatory identification protocol, the detainee is instructed on his fundamental rights, helped by an interpreter whether the suspect does not speak Spanish. Among those rights, it is worth mentioning the following ones:
- Right to be examined by Doctor or medical services at hospital. It is highly advisable to ask for this examination, particularly if the detainee shows signs of violence or injuries.
- Right to advise your nearest Consulate about the fact of your detention. Unless you consider you are mistreated or victim of police brutality, this is an ineffective right, that usually does not produce any benefit for the detainee.
- Right to call one person so as to inform on the fact of the detention. The detainee never makes this call, but the Police. He only provides the name and telephone number of such a person that will be called by the Police.
- Right to appoint a lawyer; otherwise will be appointed at State’s expenses. In contrast to Common Law, according to our legal system, you are not allowed to defend yourself. If you do not remember your lawyer’s telephone number, provide at least his/her professional details. Police will try to find him from its database
if such a lawyer practises law in the local area. It is worth being mentioned, that the appointed lawyer must appear to the detention center within the following 8 hours from the police call. Since the detainee usually has not got the information about a lawyer at hand, sometimes it is the detainee’s family who calls a lawyer. If the person who calls the lawyer is in the Police Station, it is recommendable to advise the Police not to appoint a lawyer at State’s expenses and wait for that specific lawyer. Otherwise, they will begin the interrogation.
Must the detainee state at the Police Station?
As in all Western countries, the statement before the Police is a fundamental right, not an obligation. We recommend clients not to state at the Police Station due to an important reason: the lawyer at the Police does not know the details of the alleged crime. Lawyers only know the kind of crime and less more; they cannot access to the police file yet, so it is difficult to draw a strategy to be developed in further stage of the proceedings. Take into account that everything you say at that moment will condition your future position. Lawyer’s mission at that stage mainly consists in avoiding any police misconduct towards the client.
Since the Police is aware of the lawyers’ usual recommendation, they will try to convince you to state there. Sometimes, they use the trick of good cop, bad cop. First, a cop advise angrily you to keep detained until next day; secondly another cop -the good one- will try to convince you to state so as to avoid the detention. In light of this situation, the detainee often surrenders to the pressure and, finally, states. You could have a private interview with your lawyer but shortly after your statement, not before.
Before the Court
Usually the same day of police detention or the next day morning, the detainee will be driven to the Court. Most of detainees can be released without bail, after the statement before the judge takes place but under the obligation to appear in Court on the day of the trial and whenever the Court considers. At this stage, your lawyer could see your file (police report) before you state and talk to you, unless the file exceptionally is declared as secret. He can advise you to state or not to do it, and on what could be the best strategy to afford your case. Exceptionally, magistrates can grant bail or decide the person charged with the offence to keep in custody in prison.
Summary cases (delitos menos graves) handles over 80-90 per cent of all criminal matters. Sometimes magistrates can pass a sentence the same day of your first appearance at Court, even though the enforcement will not be immediate.
Public Defender or Private Lawyer?
In Spain, a lawyer purporting to be Public defender must pass some exams and justify an experience period of several years (2 or 5 depending on the kind of proceedings). Conversely, Private Lawyer has only to meet a minimum requirements to practise law. Despite that, Public Defenders have an undeserved bad name. I was Public Defender for 10 years and can confirm that most of Public Defenders develop his/her work at a very high level of professional excellence even though have often to deal with several detainees the same day and appear before the judge many times in that frantic morning. For these reasons, Private Lawyer can deploy his/her professional services in a less hostile environment and concentrate on his/her unique client.
At any case, if you can’t afford the Private Defender’s fee, do not worry because you will have a free, highly trained professional at your disposal.
Is it mandatory to appear at the trial?
Unless the alleged criminal offence could be sentenced to more of two years’ imprisonment, you have not the obligation to appear in Court, but proceedings will continue in absence and you will be try anyway, for which it does not use to be the best decision you can make.
Article by Antonio Rodríguez Pedro Bernal
Antonio Pedro Rodríguez Bernal is an experienced attorney in the criminal jurisdiction. He has sucessfully defended clients in crimes concerning alleged manslaughter and murder, against public health (drug trafficking), against property (theft, undue appropriations), against sexual freedom, crimes against the Spanish Historical Heritage, driving under the influence (DUI), theft, domestic violence, economic crimes, smuggling and in all kinds of crimes and misdemeanours, both before the first instance criminal courts, provincial hearings, jury courts and the Supreme Court. Ha has intervened and intervenes in cases with big media impact.
He speaks Spanish as his mother tongue, English and French as his working languages, and Hungarian.
Contact at:
info@rodriguezbernal.com
Tel: +00 34 627 538 370
In addition to being subscribed to a very special legal framework, one of the reasons to seek expert legal advice in operations relating to works of art and cultural heritage is taxation.
The sale of works of art often has a transnational component, in which buyer and seller are of different nationalities and subject to different laws. In the case of movable property, it is also common that the perfection of the sale take place abroad, either within the EU or in EU territory, which means that the tax system often suffers substantial alterations.
Although the objective of this blog is not to lecture readers on the different scenarios that may occur in each operation, we think it would be convenient to simply offer some legal notes about when the sale and previous, contemporary or subsequent negotiations take place in Spanish territory.
With regards to the sale, several legal relationships subject to their own particular taxation system may converge. On the one hand, the core operation, the sale itself; and, on the other hand, parallel or auxiliary actions closely related to sale and, in particular, the presence of one or more intermediaries (dealers, art galleries or Commission agents) that have rendered a service to the buyer or seller and perceive fees for their work.
We will focus, in this entry, on the taxation applicable to the seller and the buyer, in which one can distinguish both a direct and an indirect taxation, and within this division, one might differentiate between sales made by entrepreneurs and sales carried out by private individuals.
INDIRECT TAXATION
Sale by Companies
The most immediate taxation is that which arises with the transmission and a percentage of the price of the work or the gain obtained. We could distinguish between a general system and a special system for used goods, art objects, antiques, and collectibles.
General System
If the transmission is made by a businessman, the operation will be taxable with VAT, although the rate oscilates between 10 and 21%.
You will be taxed at 10% if the operation is carried out by the author himself or his descendants, or by different resellers of art objects (not subject to the special arrangements), businessmen or professionals when they are entitled to fully deduct the tax supported by direct impact or satisfied in the acquisition or importation of the same object.
You will be taxes at 21% if the sale went through any other businessman.
These percentages fall on the sale price, which does not happen if the businessman were subject to the system of special used goods, objects of art, antiques, and objects of collection, in which case the tax rate does not rest on the complete price but on the profit obtained (as we will see below)
Special System
The special system of used goods, art objects, antiques and collectibles
will only be applied to taxable persons that have chosen so expressly, at the time of presenting the Declaration of Commencement of Activity (which is done using the model 036) or, where applicable, during the month of December preceding the beginning of the calendar year in which it will produce it´s effects, with the understanding that it will be tacitly extended for the following years unless you expressly state otherwise.
This system will be applied to resellers – entrepreneurs – of used goods or movable property that are considered works of art, antiques or collectibles that have opted for this special system and in the following deliveries of goods:
1ª) Delivery of used goods, objects of art, antiques or objects of collection acquired by the reseller to:
a) A person who is not an entrepreneur or profesional.
b) A businessman or professional who will benefit from the duty-free treatment of the tax in the Member State of beginning of the dispatch or transport of the good, provided that said good is considered to be an object of investment by the concerned businessman or professional.
c) A businessman or professional by virtue of a tax-free transmission.
d) Other taxable resellers that have applied the special system of secondhand goods, works of art, antiques and collectable objects to the transmission.
2ª) Transmissions of objects of art, antiques or collectibles that have been imported by the taxable reseller himself.
3ª) Transmissions of art objects acquired from business owners or people by virtue of operations to which have been applied the reduced rate of 8%, because they are the authors or their successors.
For the purposes of the special system, goods are only considered to be objects of art, collectables or antiques when they are listed expressly in article 136 of the Law 37/1992 of 28 December, of Value Added Tax.
The economic peculiarity of the system consists mainly in that the taxable base for the transmission of such goods will be made up of the profit margin of each transaction applied by the taxable reseller, discounting the quota of VAT applicable to this profit margin. For these purposes, the profit margin is considered to be the difference between the sale price and the purchase price of the good.
Indirect Taxation between Private Persons
If the sales are carried out between private persons, the operation will be subject to tax on property transfer, a tax which has been given to Spain´s different Autonomous Communities to administrate, which means the different regional laws will be applicable. In the absence of specific regional regulation and because a work of art has the condition of movable property, the State legislation establishes the rate of 4%. Currently, there are few Autonomous Communities that have not established their own rates. The economic crisis has produced the well-known effect of raising rates, which has also affected the world of works of art and antiques. Without going out of one´s way, in Andalusia, the Law 17/2011, of December 23rd, sets a rate increased to 8% for the taxable transfer of works of art and antiques.
DIRECT TAXATION OF WORKS OF ART
This is the tax paid by the seller as a result of the sale, in the case that he or she has made a profit.
Applicable tax will vary depending on whether the seller is a legal person, which will be taxed according to company tax, or a natural person, whose yields are subject to tax on the income of the physical persons.
In the case of legal persons, the profit would be added to the taxable base as yet another source of income and on the resulting total amount would be applied the corresponding rate: General rate of 35% or, usually, if annual turnover is less than 5 million euros and the average workforce is less than 25 employees, they will be taxed at a reduced 20% for taxable income between 0 and 300,000.00 euros and 25% for the remaining taxable base.
In the case of natural persons, profits would be taxed according to the tax on the income of physical persons (IRPF), differing according to whether the seller is a businessman dedicated to such activity or an individual. In the first case, financial gain would have the consideration of business derived income and would be taxed according to the progressive general scale (24.75 to 52%). In the case of a private person, he or she would be taxed according to the rate of savings income, that range between 21% and 27%.
For more information, visit our website or contact us directly.
Antonio Pedro Rodríguez Bernal Lawyer and renowned specialist in the law applicable to the art market, historical heritage and antiques. He has participated in numerous international transactions of valuable works of art, either as a lawyer of the parties or of the participating dealers. He is frequently invited to radio programmes or interviewed in the press to discuss current issues relating to the Law of art, historical heritage and antiques. Email: info@rodriguezbernal.com
We provide complete and personalized consulting services for organizations that want to initiate or have already initiated the process of internationalization, exporting or importing.
More and more tariff barriers between countries are being eliminated since the decade of the nineties, which contributes to the increase in the flow of commercial relations between different areas in the world.
Nowadays companies have to compete with an increasingly diversified offer. For this reason it is necessary to take advantage of the new opportunities that foreign trade offers by diversifying the number of markets where the company can be present.
Our task is not limited to analyzing and advising the exporting companies, facilitating the positioning of their products in the international markets, but we can also create a department within the companies that is adapted to the international markets where their products will be present or we can become their partners as permanent consultants on exporting.
Some of our services include:
- General advice on international trade, export – import, etc.
- International trade regulatory compliance
- Trading
- Legal representation of foreign companies and Mandate
- International agreements
- Sale
- Distribution
- Agency
- Licensing
- Royalty agreements, etc.
- International sales/purchase contracts
- Contract negotiation, terms and conditions
- Incoterms
- Maritime, Freight, Shipping and Transportation Documentation, Disputes, Trade Finance and contracts
- Trade finance and payment methods
- Insurance
- Commercial litigation
- Arbitration
- Debt collections and general litigation in Spain
- Sanctioning administrative proceedings
Antonio Pedro Rodríguez Bernal is set to take on the defence of a man charged with homicide, this being a case well-covered by the Spanish media in the last week.
Independantly of the peculiarities of regional legislation, the basic national Law of Spain refers to several categories of goods included in the Spanish Historical Heritage.
A) Arqueological Heritage
Article 40 of the Historical Heritage Act declares that movable or immovable property is part of this Heritage when it can be studied with archaeological methodology, independently of if it has been extracted and is on the surface or underground, in the territorial sea or continental shelf. Also part of this Heritage are those geological and palaeontological items that are related to the history of man and his origins and history.
Finally the law clearly states that actions in archaeological sites can be either excavations or prospecting, and they have to be authorized properly by the appropriate Administration, as well as that all goods that are discovered are part of the public domain, i.e., the law flatly prohibits their comercialization.
B) Etnographic Heritage
Ethnographic Heritage is made up of knowledge and activities that are or have been a relevant expression of the traditional culture of the Spanish people in their material, social and spiritual aspects. In addition, special protection is provided for those elements that are in danger of disappearance, indicating in this case that the appropriate Administration shall take measures conducive to the study and scientific documentation of this movable, immovable property.
C) Inventory of Goods Belonging to the Catholic Church
The Historical Heritage Act, in its article 28, establishes that “property declared of cultural interest and those that are included in the General Inventory and that are in possession of ecclesiastical institutions may not be transmitted to individuals or commercial entities”.
D) Documental Heritage
A “document” is understood to be any expression in natural or conventional language and any other expression of graphics, sound or images, collected in any kind of material support including computer storage media. The Heritage Act foresees the carrying out of a Census of Documentary Heritage, which is performed through collaboration agreements between the Ministry of culture and the autonomous communities. This Heritage includes:
- Documents generated, stored or gathered by any organism or entity with public status, as well as those related to the management of these services.
- Documents which are more forty years old, generated, stored or gathered by entities and associations of a political nature, trade unions or religious associations and by institutions, foundations and private cultural and educational associations.
- Documents which are more than one hundred years old, generated, stored or gathered by private entities or individuals.
E) Bibliographical Heritage
According to article 50 of the Heritage Act, this Heritage is comprised of:
- Publicly owned libraries and bibliographical collections and the literary, historical, scientific or artistic works of a unified or serial nature in handwritten or printed form, of which there is no record of the existence of at least three copies in libraries or public services.
- Literary, scientific or artistic works of a unified or serial nature, in handwritten or printed form, of which there is no record of the existence of at least three copies in libraries or public services.
- Items which are products of films, audiovisual materials and other similar items, whatever their material support may be, as long as there is a record of at least three specimens in public services or one in the case of cinematographic films.
For more articles on art and heritage, click here.
For more articles in English, click here.
For more information, visit our website or contact us directly.
Antonio Pedro Rodríguez Bernal Lawyer and renowned specialist in the law applicable to the art market, historical heritage and antiques. He has participated in numerous international transactions of valuable works of art, either as a lawyer of the parties or of the participating dealers. He is frequently invited to radio programmes or interviewed in the press to discuss current issues relating to the Law of art, historical heritage and antiques. Email: info@rodriguezbernal.comEight days ago Royal Decree 3/2014, of the 28th of February, of urgent measures for the promotion of permanent workers was announced.
It was an unexpected, as a new work reform was nor planned for 2014. The Spanish Government seeks now to encourage the hiring of more permanent workers.
For this reason, it proposes setting the social insurance fee at only 100 euros for general risks.
However, the law has been on the receiving end of severe criticism, because of it’s unreasonable conditions, which are hard to meet on the part of employers. These include the following:
a) Permanent contracts must be made that increase the number of permanent workers in the company.
b) The company must maintain these conditions over the course of 36 months, starting with the date of the permanent employment contract. Every 12 months this situation will be checked.
c) The Act is not applicable to employees who have worked in the same company within the last 6 months.
If businesses meet these conditions, they will only have to pay the following amounts:
1) Full-time employment – 100 euro per month.
2) Part-time employment (75%) – 75 euro monthly.
3) Part-time employment (50%) – 50 euro per month.
It is also important to state that the law is applicable only to the contracts which were concluded during the period between 25.02.2014 and 31.12.2014.
It is laudable that the Government is still trying to strengthen the private sector in work matters, but the recent reform leaves much to be desired.
Article by Mark Athos Franklin, English lawyer at the Rodriguez Bernal law firm. For more articles on Business law or for more articles in English, click the links provided. Antonio Pedro Rodríguez Bernal At the Rodriguez Bernal law firm we have a department specialised in company law that is highly experienced in assisting clients from many countries and nationalities. For more information about the services we offer on business issues, visit our web site or contact us directly. Email: info@rodriguezbernal.com
Antonio Pedro Rodríguez Bernal, director of this office, was awarded the Gold Medal of Professional Prestige by Forum Europe 2001 during a brilliant ceremony and gala dinner which was held at the Palace Hotel in Madrid on the 21st of February 2014.
Antonio Rodríguez Pedro Bernal is an experienced attorney in the criminal jurisdiction. He has sucessfully defended clients in crimes concerning alleged manslaughter and murder, against public health (drug trafficking), against property (theft, undue appropriations), against sexual freedom, crimes against the Spanish Historical Heritage and in all kinds of crimes and misdemeanours, both before the first instance criminal courts, provincial hearings, jury courts and the Supreme Court.
He also possesses great experience in civil litigation, family law, administrative litigation and real estate law.
He is a recognised specialist in the law applicable to the art market, historical heritage and antiques. He has participated in numerous international transactions of valuable works of art both as a lawyer of the parties or of the participating dealers. He is frequently invited to radio programs or interviewed in the press to discuss current issues related to art law, historical heritage and antiques. He also acts as a Escrow Agent.
As a result of his doctoral thesis, he has solid knowledge of International Law and European Community Law. He also knows British Law, especially in the field of art, historical heritage and the antiques market.
He speaks Spanish as his mother tongue, English, German and French as his working languages, and Hungarian.
Antonio Pedro Rodríguez Bernal Lawyer and renowned specialist in the law applicable to the art market, historical heritage and antiques. He has participated in numerous international transactions of valuable works of art, either as a lawyer of the parties or of the participating dealers. He is frequently invited to radio programmes or interviewed in the press to discuss current issues relating to the Law of art, historical heritage and antiques.
The little-regulated situation of marriages between persons of the same sex in Spain has already been debated in this blog. Already emphasized has been the relevance of the decision of the Spanish Supreme Court of the 5th of December 2013, which recognized the possibility of registering in the Civil Registry two women as parents of the same child.
However, it seems that an obstacle has arisen in the recognition of the rights of these marriages, at least with regards to reproduction. With the judgment of the Spanish Supreme Court of the 6th of February 2014, the possibility of registering the two gay men as parents of a child after a contract of surrogacy has been rejected.
“Maternal surrogacy”, is that contract by which a woman allows her gestational capabilities to be used to bring a child to maturity, whose parenthood is then established in favor of another person or persons. It is a form of “womb rental” that has often been used by infertile heterosexual couples and homosexual relationships.
The Supreme Court denies that its decision is based on a discriminatory policy base on the sexual orientation of the parents, claiming that their homosexuality has nothing to do with the outcome of the case. Rather the Court is seeking to protect public order against a practice that is alleged to be harmful to the dignity of women, viewing her body as something to be exploited economically.
Proof of the good intentions of the Court, it could be argued, is the recommendation for the establishment of the parenthood of these children by other legal mechanisms, such as adoption.
However, the Spanish Supreme Court’s decision comes after an alarming trend on the part of Spanish public authorities to reverse certain left-wing policies, such as is the case of abortion, where a new bill virtually precludes the termination of pregnancy except when some exceptional circumstance ntervenes.
Another controversial issue, discussed by Supreme Court judge Seijas Quintana, is if Spanish courts should even be able to examine the legality of a validly issued foreign judgment (in this case from California), or if they should limit themselves to the recognition of its effects in Spanish territory.
Article by Mark Athos Franklin, English lawyer at the Rodriguez Bernal law firm. For more articles on Civil law or for more articles in English, click the links provided. Antonio Pedro Rodríguez Bernal Lawyer and expert in family law. He has led civil cases of all kinds during the last 15 years of legal practice and has helped clients from many countries and nationalities. For more information about the services we offer on family issues, visit our web site or contact us directly. Email: info@rodriguezbernal.comIn previous posts, we have already commented on the increase in the cost of living in Spain for the average expatriate, focusing especially on tax issues and the poor exchange rate.
However, many British residents in Spain may be unaware of some of the ways in which they can maximize the value of their pensions.
An important example, which is growing in popularity year by year, is the QROPS scheme.
For those unfamiliar with the term, QROPS stands for Qualifying Recognised Overseas Pension Scheme and is aimed at those British expatriates have left a British pension scheme or who are currently involved in a United Kingdom pension scheme.
By transferring their pension into a QROPS, long term Spanish residents can benefit from multiple advantages compared to keeping their Uk pension scheme. These include:
1) Avoiding inheritance tax in the UK.
2) More favourable income tax rates.
3) The pension will be paid in a currency you will need in retirement, thereby avoiding exchange rate issues.
4) Local pension jurisdictions and advisors (Spain and Gibraltar), which are more accessible for oversees residents than their Uk counterparts.
Article by Mark Athos Franklin, native English lawyer at the Rodriguez Bernal law firm. For more articles on the law governing foreign residents in Spain or for more articles in English, click the links provided. Antonio Pedro Rodríguez Bernal At the Rodriguez Bernal law firm we have a department specialised in expatriate law that is highly experienced in assisting clients from many countries and nationalities. For more information about the services we offer on issues affecting foreign residents, visit our web site or contact us directly. Email: info@rodriguezbernal.com. mathos@rodriguezbernal.com.