Article 402 Spanish Criminal Code: Unlawful Exercise of Public Functions

Article 402 of the Spanish Criminal Code punishes with imprisonment of one to three years the person who unlawfully performs acts proper to a person in authority or a public official, attributing to himself official capacity. It is a short provision with a demanding structure: it is not enough to claim a title or to wear a uniform, the accused must actually perform an act reserved to public authority while holding himself out as official.

Also cited as: article 402 Spanish Criminal Code · art. 402 CP · Spanish Penal Code article 402 · artículo 402 del Código Penal.

Wording of Article 402 of the Spanish Criminal Code

Elements of the offence

1. The performance of acts proper to a person in authority or a public official, that is acts reserved by law to the exercise of public authority.
2. Attribution to oneself of official capacity, expressly or by conduct capable of creating that belief.
3. Unlawfulness, meaning the absence of any appointment, delegation or authorisation covering the act.
4. Intent to pass as an official. Confusion generated by the conduct of third parties, without any such intention, is outside the article.

Defence strategy

No act proper to public authority was performed. The offence requires an act reserved to authority: an identity check, an order backed by public power, a seizure, an inspection with legal effect. Presenting oneself as an official, wearing similar clothing or displaying an emblem, without performing such an act, does not satisfy the element and belongs at most to the minor offence of usurping a title. The defence identifies precisely which act is attributed and whether it produced any legal effect.

Absence of attribution of official capacity. The accused must attribute official capacity to himself. Where a third party assumed it, where the accused corrected the misunderstanding, or where he acted in a private capacity that others misread, the element fails. Recordings, messages and the accounts of those present establish what was actually said.

Existence of a title or authorisation. Security staff, municipal auxiliaries, inspectors of concessionaires and persons acting under delegation frequently perform functions that appear public. Where a contract, appointment or delegation covers the act, the conduct is lawful even if its limits were exceeded, and any excess is a matter for the administrative or employment sphere.

Concurrence with fraud. Where the false capacity was the instrument for obtaining money or property, the offence concurs with fraud under articles 248 to 250. The defence addresses the concurrence under article 77, since prosecutors habitually seek cumulative sentences for what was a single course of conduct, and restitution of the sums obtained bears on both.

• Article 401: usurpation of civil status
• Article 248: fraud, the basic offence
• 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.