Criminal defence throughout Spain · offices in Madrid and Alicante
The Criminal Code does not punish poor administration. It does not punish the void act, the voidable act, the incomplete file or a rushed procurement. Article 404 requires something different: an arbitrary decision made in the knowledge of its injustice.
In brief. A town hall of two thousand inhabitants does not work like a regional ministry. The settled doctrine of the Supreme Court requires the decision to depart from the law so patently that it withstands no legal method, and the author to act in full knowledge of that injustice. There is no negligent misfeasance. That line is drawn with concrete documents: the secretary’s report, the auditor’s objection and the motivation of the decision.
A town hall of two thousand inhabitants does not function like a regional department. The secretary-auditor may share the post across three municipalities; the mayor combines office with a job; the planning councillor had never seen an administrative file two years ago. The Criminal Code does not punish bad administrative management: the contentious-administrative jurisdiction, the auditor’s objection and, where appropriate, accounting liability exist for that. Article 404 demands an arbitrary decision made knowingly: the Supreme Court’s settled doctrine requires a departure from the law so patent that no legal method can explain it, and full knowledge of the injustice. There is no negligent misfeasance, and the breach of a procedural step, however relevant, is not enough.
The problem is that this limit is not drawn in the abstract but with concrete documents. And in a small town hall the documents that decide the case are usually the same: the secretary’s report, the auditor’s objection formulated and lifted, the technical reports and the motivation, or absence of motivation, of the decision.
| Offence | Article | Penalty framework | Key point |
|---|---|---|---|
| Administrative misfeasance | 404 | Disqualification 9 – 15 years | No prison; the longest conviction for an elected official |
| Planning misfeasance | 320 | Penalties of 404 + prison + fine | Reaches the reporting technician |
| Misappropriation by appropriation | 432.1 | 2 – 6 years + disqualification | Trial before the Provincial Court |
| Aggravated misappropriation | 432.2 | 4 – 8 years + absolute disqualification | Serious damage to the service or the threshold exceeded |
| Private use of means | 433 | Lower penalties | Repayment is central; the realistic defence aim |
| Repair and cooperation | 434 | Penalty lowered 1 or 2 degrees | Full and effective repair of the public loss |
| Fraud against the entity | 436 | 1 – 3 years + disqualification | Directed awards and inflated certificates |
| Documentary forgery | 390 | 3 – 6 years + fine (officials) | Minutes, certificates and after-the-fact receipts |
Penalty ranges are indicative and set out the ordinary framework; the sentence actually imposed depends on the circumstances of each case.
What is stated on this page about the “knowingly” element, manifest arbitrariness and the material object of misappropriation reflects settled doctrine that in each case is documented with the specific ruling in the defence brief, not before. Citable support on collateral questions, always to be verified at source: STS 354/2022 (ECLI:ES:TS:2022:1451) on funds received for a specific purpose and their diversion, translated locally into budgetary allocation and earmarked subsidies; STS 312/2021 (ECLI:ES:TS:2021:1388) on documentary forgery charged alongside other offences, where the authorship of each document must be contested separately; and STS 747/2024 (ECLI:ES:TS:2024:4260) on the Article 324 LECrim investigation clock and the private prosecution’s costs, both constant issues in long municipal cases with voluminous documentation.
The defence is built on the file: whether the secretary’s report was categorical or nuanced, whether favourable technical reports existed, whether the town hall had precedents, and whether the decision was motivated. A motivated decision departing from a debatable report is not the same as an unmotivated decision against a suspensive objection. This page does not constitute legal advice.
Elected officials of small and medium municipalities: the line between the botched file and the offence, and the disqualification that decides their future.
Officials who report and audit: documentation of warnings given and defence of the technical criterion.
Companies drawn into municipal cases through awards and certificates: separate defence from the officials’.
Administrations and opposition groups harmed: complaint, private prosecution and recovery of public funds.
Speak to a criminal lawyer
Criminal defence in English before the courts of Alicante and the rest of Spain, for residents and for visitors who have flown home.
Société de Conseil Juridique et Expert es un despacho de abogados con sedes en Madrid, Alicante, Londres y París, especializado en defensa y acusación penal, delitos económicos y corporativos y derecho tecnológico. Trabajamos con orientación estratégica en procedimientos penales complejos, propiedad intelectual y análisis forense avanzado, y prestamos consultoría jurídica, compliance y escudos de protección a particulares y empresas. Atendemos desde Alicante y Madrid, con consulta online en toda España y asistencia al detenido 24 horas. Resuelva sus dudas en las preguntas frecuentes o solicite una primera consulta.
Copyright © 2026 Société de Conseil Juridique et Expert S.L.
