ADMINISTRATIVE PREVARICATION

Prevarication of public officials is regulated in arts. 404 to 406 of the Penal Code, which seek to protect the normal functioning of the Public Administration, so that it acts at the service of the general interests and in full compliance with the law (STS No. 769/2022 of September 15).

The basic modality of this crime punishes, with a penalty of special disqualification from public employment or office and from the exercise of the right to passive suffrage for a period of 9 to 15 years, the authority or public official who, knowing its injustice, issues an arbitrary resolution in an administrative matter. The elements that characterize this crime are, according to Supreme Court Ruling No. 769/2022 of September 15, 2002, the following:

• That the active subject is an authority or public official.
• To make a decision on a matter entrusted to him in consideration of his office.
• That the decision rendered is arbitrary, in the sense of contradictory to the law. This may occur both when essential procedural steps are omitted, and when the official lacks the competence to resolve an issue, as well as due to the substantial content of the resolution itself (if the decision cannot be explained with a minimally reasonable technical-legal argumentation).
• That such resolution is issued knowing its injustice, i.e., that it has been issued with the purpose of enforcing the particular will of the authority or official, knowing that it acts against the parameters of decision established in the legal system.

For example, a civil servant who grants a subsidy to a friend of his, despite knowing that the latter does not meet the legal requirements for access to such subsidy, commits a crime of administrative malfeasance.

Specific modalities

Apart from the basic criminal modality, which we have seen previously, art. 405 of the Penal Code also punishes the authority or official who, in the exercise of his competence and knowing its illegality, proposes, appoints or gives possession for the exercise of a specific public office to a person who does not meet the legally established requirements for it. This behavior is punishable by a fine of 3 to 8 months and suspension from public employment or office for a period of 1 to 3 years. Likewise, the same penalty is also applicable to the person who accepts such appointment knowing that he/she lacks the legally established requirements (art. 406 of the Penal Code).