Crime of Illegal Financing of Political Parties

Illegal financing of political parties is a crime that is becoming increasingly relevant within the criminal sphere due to its direct implication on the transparency and fairness of the democratic system.

Regulation of the crime of illegal party financing

The amendment of the Criminal Code operated by Organic Law 1/2015, of March 30, introduces this crime.

Specifically, Article 304 bis of the Penal Code provides as follows:

1. Whoever receives donations or contributions destined to a political party, federation, coalition or grouping of voters in violation of the provisions of Article 5. One of Organic Law 8/2007, of July 4, 2007, on the financing of political parties, shall be punished with a fine of three to five times its value.
   
   
2. The above facts shall be punished with a prison sentence of six months to four years and a fine of three to five times their value or the excess when:
   
   
   • a) Donations included in Article 5. One, letters a) or c) of Organic Law 8/2007, of July 4, 2007, on the financing of political parties, amounting to more than 500,000 euros, or exceeding the limit set forth in letter b) of that provision, when the latter is the one infringed.
     
     
   • b) Donations included in Article 7.Two of Organic Law 8/2007, of July 4, 2007, on the financing of political parties, which exceed the amount of 100,000 euros.
     
     
3. If the facts referred to in the preceding paragraph are particularly serious, the penalty shall be imposed in the upper half of the sentence, with the possibility of reaching the higher one in degree.
   
   
4. The same penalties shall be imposed, in their respective cases, on whoever delivers donations or contributions destined to a political party, federation, coalition or grouping of voters, by himself or through an intermediary, in any of the cases of the preceding numbers.
   
   
5. The same penalties shall be imposed when, in accordance with the provisions of Article 31 bis of this Code, a legal person is responsible for the facts. In accordance with the rules set forth in Article 66 bis, the judges and courts may also impose the penalties set forth in letters b) to g) of paragraph 7 of Article 33.
   

Criminal conduct and penalties associated with the crime of illegal financing of political parties

In short, Article 304 bis of the Criminal Code establishes the conducts constituting the crime of illegal financing of political parties and the penalties associated with such conducts, as follows:

1. Receipt of illegal donations: Any person who receives donations or contributions intended for a political party, federation, coalition or grouping of voters, in violation of the provisions of Article 5.1 of Organic Law 8/2007, shall be punished with a fine ranging from three to five times the value of the illegal contribution.
   
   
2. Prison sentences: In the event that illegal donations exceed certain thresholds, prison sentences of six months to four years will be imposed in addition to the above-mentioned fine. This applies, for example, for donations exceeding EUR 500,000 or contributions exceeding the limit set in the regulations.
   
   
3. Additional penalties: The same penalties apply to whoever delivers illegal donations, directly or through intermediaries, in the above cases. Likewise, legal persons may also be liable, according to the provisions of Article 31 bis of the Criminal Code, which implies that they may be subject to the penalties set forth in Article 33 of the same code.

Examples of the Crime of Illegal Financing of Political Parties

Below are some practical examples to illustrate how the crime of illegal financing of political parties is committed:

1. Excessive Donation Case: A businessman donates 600,000 euros to a political party, exceeding the 500,000 euros allowed by Organic Law 8/2007. Although the donation is made in a transparent manner, the amount exceeds the legal limit, so both the donor and the recipient (the political party) may be sanctioned under Article 304 bis of the Penal Code.
   
   
2. Covert Contributions through Third Parties: A large corporation seeks to influence a political party, but since the Penal Code and Organic Law 8/2007 prohibit direct donations from companies, the corporation uses several employees to make personal donations on its behalf. This mechanism of “donation by interposed person” is a violation of the law, and both the corporation and the employees involved can be punished.
   
   
3. Financing through Covert Activities: A political party organizes events with the support of large companies, but the contributions they receive from these companies are disguised as “sponsorship” to evade legal restrictions on party financing. This type of disguised contribution may be considered a crime of illegal financing if it does not comply with the terms provided by law.

Alvise Perez Case and the Intervention of Nieto Enriquez Criminal Defense Attorneys

In relation to illegal party financing, a recent case has brought into focus the scope of the penalties contained in Article 304 bis of the Penal Code. The case of Alvise Pérez, as reported by InfoLibre, could lead to a sanction for irregularities in campaign financing in social networks with a fine that could range between 300,000 and 500,000 euros.

The lawyer Cristina Nieto, founding partner of Nieto Enriquez Abogados Penalistas explains that the crime of illegal party financing, introduced in the 2015 Criminal Code reform, is relatively new, so there is still no “major case law” on it. According to Nieto, the crime is consummated with “the delivery and receipt of the donation”, and both the donor and the recipient may be liable. In addition, he highlights that the political party receiving the donation can also be “criminally liable”, facing penalties such as the prohibition to receive subsidies, the suspension of activities for up to five years or the closure of premises.

Illegal financing of political parties is a crime that threatens democratic principles and transparency in political life. The severe penalties provided for by the criminal law seek not only to punish the offenders, but also to prevent this type of conduct from recurring, thus ensuring greater fairness and control in the process of political financing in Spain.