Criminal lawyers specialized in: Crime of prevarication

It is a type of crime included within the crimes against the Administration of Justice, regulated in arts. 446 to 449, as a crime of prevarication of the Penal Code, which punish the behaviors we will see below.

When is there a crime of prevarication?

Fraudulent judicial malfeasance

First, Article 446 of the Penal Code punishes the crime of intentional judicial malfeasance, which punishes the judge or magistrate who knowingly issues an unjust sentence or resolution. The penalty applicable to this offense varies depending on the type of proceeding in which the unjust ruling is issued, as well as the state of execution of such ruling:

1. The penalty is imprisonment from 1 to 4 years if it is an unjust sentence against the defendant in a criminal case for a felony or misdemeanor and the sentence has not been executed. If executed, the sentence of imprisonment is imposed in its upper half and, in addition, a fine of 12 to 24 months is imposed. In both cases, the penalty of absolute disqualification for a period of 10 to 20 years is also imposed.
2. In the case of an unjust sentence against the defendant in a misdemeanor proceeding, the penalty is a fine of 6 to 12 months and special disqualification from public employment or office for a period of 6 to 10 years.
3. In any other case, the penalty is a fine of 12 to 24 months and special disqualification from public employment or office for a period of 10 to 20 years.

The Courts have made it clear that not any error committed by a judge when issuing a decision entails that the decision issued is unjust, to the extent that the facts constitute a crime of prevarication, but only when the application of the Law has been made without taking into account the means and methods of interpretation acceptable in a State of Law, departing from all legally defensible alternatives (STS No. 101/2012).

As for the subjective element of the type, specified in the expression“knowingly“, it requires that the Judge is aware that the decision issued is outside the legality and interpretations admissible in Law (STS No. 228/2015 of April 21).

Reckless judicial malfeasance

Secondly, Article 447 of the Criminal Code punishes the Judge or Magistrate who, due to gross imprudence or inexcusable ignorance, issues a manifestly unjust sentence or resolution. In this case, the penalty is special disqualification from public employment or office for a period of 2 to 6 years.

It is not enough that the resolution issued is unjust to appreciate this crime, as was the case in the previously exposed malicious misconduct, but the resolution must be “manifestly unjust”, which implies a greater severity of the injustice of the resolution (STS No. 571/2012 of June 29). Furthermore, as regards the subjective element of the crime, the Courts require that the Judge must have mentally represented to himself the possibility of issuing a manifestly unjust decision (STS No. 359/2002).

Refusal to judge

Judges have the inexcusable duty to resolve all those matters of which they are aware (art. 1.7 of the Civil Code), so they cannot abstain from judging, unless there is a legal cause for abstention. Failure to comply with this duty may constitute the crime typified in art. 448 of the Penal Code, which punishes with special disqualification from public employment or office for a period of 6 months to 4 years the Judge or Magistrate who refuses to judge, without alleging legal cause, or alleging obscurity, insufficiency or silence of the Law.

Malicious delay in the administration of justice

Finally, the Judge, Magistrate or Lawyer of the Administration of Justice (former Judicial Secretary) who is guilty of malicious delay in the Administration of Justice, understanding as such the delay caused to achieve any illegitimate purpose, is punished with special disqualification for employment or public office for a period of 6 months to 4 years. If the delay is attributable to an official other than those mentioned above, the latter shall be punished with the indicated penalty applied in its lower half (art. 449 of the Penal Code).

Who can commit the crime of prevarication?

The crime of prevarication is a special crime that can only be committed by an authority or public official. The penalty for the punishable conduct is disqualification from office.