Article 419 Spanish Criminal Code: Bribery: Acts Contrary to Official Duty

Article 419 of the Spanish Criminal Code punishes the person in authority or public official who, for his own benefit or that of a third party, receives or solicits a gift, favour or reward of any kind, or accepts an offer or promise, in order to carry out in the exercise of his office an act contrary to the duties inherent in it, or in order not to carry out, or to delay unjustifiably, an act he ought to perform. The penalty is imprisonment of three to six years with a fine and disqualification of nine to twelve years, and it is imposed in addition to the penalty for the act itself where that act is an offence.

Wording of Article 419 of the Spanish Criminal Code

Elements of the offence

1. A perpetrator who is a person in authority or a public official, or in the case of article 424 a private individual who offers or gives.
2. The receipt, solicitation or acceptance of a gift, favour or reward of any kind, or of an offer or promise, whether personally or through an intermediary.
3. A connection between that benefit and an act contrary to official duty, or the omission or unjustified delay of an act that ought to be performed.
4. That the benefit was for the perpetrator or for a third party, so a benefit obtained for a political party, a family member or an associated entity is within the article.

Defence strategy

Absence of connection between the benefit and the act. This is the central issue in almost every case. Hospitality, a gift of customary value, a payment for a genuine professional service and a donation to an entity are not bribes unless linked to a specific act of the office. The defence establishes the commercial or social context, the customary practice of the sector and, above all, whether the official had any power over the matter said to have been procured, since without that power the connection cannot exist.

Reclassification to article 420 or 422. The brackets differ substantially: three to six years where the act is contrary to duty, two to four years where the act is a proper act of the office under article 420, and six months to one year where the gift is received merely in consideration of the office under article 422. Establishing that the act procured was lawful, or that no act was procured at all, is worth years of imprisonment, and it is argued on the administrative regularity of the decision taken.

The evidential structure of the case. These prosecutions rest on intercepted communications, on banking movements and on the accounts of co-accused who have negotiated their position. The defence tests the lawfulness of the interceptions under article 588 ter a, examines whether the transfers correspond to documented services, and scrutinises the credit of a co-accused whose account was given in exchange for an agreed disposition, since Spanish law treats such testimony with caution and requires corroboration.

Limitation and the passage of time. The maximum penalty places the offence in the ten-year limitation bracket, and these investigations habitually concern conduct many years old. The defence establishes the date of each act relied on and the date on which the proceedings were first directed against the client by a reasoned decision, because part of the conduct is frequently barred even where the case as a whole is not.

• Article 420: bribery for a proper act
• Article 404: prevarication by officials
• Spanish Criminal Code by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.