Public safety, public order and other offences
In short
These offences protect the proper and impartial functioning of public bodies. Most can only be committed by a public authority or public official, but the criminal-law definition is broad: under article 24 of the Criminal Code (Código Penal), a public official is anyone who takes part in the exercise of public functions by provision of law, by election or by appointment. That includes mayors, councillors, local authority technical staff, employees of public bodies and, in certain cases, people who are not career civil servants (funcionarios de carrera).
Private individuals can also be held liable: someone who pays a bribe, someone who influences an official by exploiting a personal relationship, or someone who manages public funds on the administration’s behalf. Companies can be convicted of bribery and influence peddling, as we explain on our corporate criminal compliance page.
Article 404 punishes any authority or official who, knowing it to be unjust, issues an arbitrary decision in an administrative matter. The penalty is special disqualification from public employment or office and from the right to stand for election for nine to fifteen years. There is no prison sentence, but it means losing the post and being barred from standing for election for that period.
Not every unlawful act amounts to prevaricación. A decision can be quashed by an administrative court without any crime having been committed. For the offence to exist, the decision must be arbitrary, not merely debatable, and the person signing it must know it is unjust. That is almost always where the core of the defence lies.
| Conduct | Main penalty | Article |
|---|---|---|
| Official who requests or accepts a gift or payment to do something contrary to their duties, or to fail to do or delay what they should do | 3 to 6 years in prison, a fine of 12 to 24 months and disqualification for 9 to 12 years | 419 |
| Official who requests or accepts a gift or payment to carry out an act that is part of their duties | 2 to 4 years in prison, a fine of 12 to 24 months and disqualification for 5 to 9 years | 420 |
| Official who accepts gifts offered in consideration of their post | 6 months to 1 year in prison and suspension for 1 to 3 years | 422 |
| Private individual who offers or hands over the gift or payment | The same prison sentences and fines as the official | 424 |
| Official who influences another official to obtain a decision that brings a financial benefit | 6 months to 2 years in prison, a fine of one to two times the benefit and disqualification for 5 to 9 years | 428 |
| Private individual who influences an official by exploiting a personal relationship | 6 months to 2 years in prison, a fine of one to two times the benefit and a ban on contracting with the public sector for 6 to 10 years | 429 |
In influence peddling, if the benefit is actually obtained, the penalties are imposed in their upper half. If the bribe relates to a public contract, grant or auction, the individual and their company can be barred from contracting with the public sector and from receiving public aid for five to ten years (article 424.3).
A little-known fact: a private individual who occasionally gave in to an official’s request for a bribe is exempt from punishment if they report it before proceedings are opened, provided no more than two months have passed since the events (article 426).
Article 432 punishes any authority or official who, for financial gain, appropriates public assets in their charge or allows someone else to do so. The penalty is two to six years in prison and special disqualification for six to ten years. If the loss exceeds 50,000 euros or serious harm is caused to the public service, the prison term is four to eight years with absolute disqualification for ten to twenty years; above 250,000 euros, the penalty is even more severe. If the loss is below 4,000 euros, the prison term is one to two years.
Using public assets for private purposes without intending to keep them is punished with six months to three years in prison (article 432 bis), and applying public funds to a public purpose other than the one intended carries the penalties of article 433. These provisions also apply to private individuals entrusted with public funds, custodians of seized assets and insolvency administrators (article 435).
Disqualification cannot be suspended. Article 80 allows custodial sentences of up to two years to be suspended, but not disqualifications. For someone holding public office, disqualification is usually the most serious consequence.
Limitation periods. Offences punished with disqualification of more than ten years, such as prevaricación or bribery under article 419, become time-barred after fifteen years (article 131).
Appeals. Many of these cases are decided at second instance. We explain how on our criminal appeals page.
If an arbitrary public decision has harmed you, for example over a licence, a contract award or a recruitment process, you can report it and join the proceedings as a private prosecutor (acusación particular). In addition, criminal proceedings in Spain are public: any Spanish citizen can file a criminal complaint by bringing a popular action (acción popular) even if they have not been harmed by the offence (articles 101 and 270 of the Criminal Procedure Act, Ley de Enjuiciamiento Criminal). We can help you through our private prosecution service.
An unlawful decision is quashed through the administrative courts. It is only prevaricación (article 404 of the Criminal Code) if it is arbitrary and the person issuing it knows it is unjust. A reasonable legal interpretation is not a crime, even if a court rejects it. That is why the prior reports and the administrative file are decisive for the defence.
No. Wrongful administrative decision-making under article 404 is punished with special disqualification from public employment or office and from the right to stand for election for nine to fifteen years. There is no prison term, but it means losing the post and being unable to stand for election during that period, which is very serious for an elected official.
It can be. Article 422 punishes any authority or official who accepts a gift offered in consideration of their post or role, with six months to one year in prison and suspension from employment for one to three years. If the gift is intended to make them do something specific, whether part of or contrary to their duties, articles 419 or 420 apply, with heavier penalties.
Yes. Anyone who offers or hands over a bribe to an official receives the same prison sentence and fine as the official (article 424). And anyone who influences an official by exploiting a personal relationship in order to obtain a decision bringing a financial benefit commits influence peddling (article 429), punishable by six months to two years in prison.
Yes. Article 434 requires the court to reduce the penalty by one or two degrees if the person responsible effectively and fully repairs the loss caused before the trial begins, or actively cooperates by providing decisive evidence. In cases of private use of public assets, returning them within ten days of proceedings being opened prevents the more serious penalties of article 432 from applying.
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