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Article 408 Spanish Criminal Code: failure to prosecute offences
Quick answerArticle 408 of the Spanish Criminal Code punishes with special disqualification from public employment or office for six months to two years an authority or public official who, in breach of the duties of their post, intentionally fails to promote the prosecution of offences of which they are aware or of those responsible for them.
This is the offence that punishes an official’s deliberate inaction in the face of a known offence. It does not punish mistake or negligence but the conscious decision not to act, which places the debate on proof of the mental element and on identifying the duties attached to the post.
Also cited as: article 408 Spanish Criminal Code · art. 408 CP · Spanish Penal Code article 408 · artículo 408 del Código Penal.
Wording of the provision
An authority or public official who, in breach of the duties of their post, intentionally fails to promote the prosecution of offences of which they are aware or of those responsible for them shall incur the penalty of special disqualification from public employment or office for a period of six months to two years.
Consolidated text published by the Spanish Official State Gazette, Organic Act 10/1995 of 23 November, the Criminal Code. Unofficial English rendering; the Spanish text is the authentic one.
Sentencing range. Special disqualification from public employment or office for six months to two years. No custodial penalty is attached.
Key facts
| Who can commit it | An authority or public official within the meaning of Article 24 of the Criminal Code. It is an offence that only they can commit. |
|---|---|
| Conduct | Intentionally failing to promote the prosecution of offences of which one is aware, or of those responsible for them. |
| Normative element | Breach of the duties of the post, which requires identifying the specific competence that required action. |
| Mental element | Direct intent. The word intentionally excludes indirect intent and, a fortiori, negligence. |
| Penalty | Special disqualification from public employment or office for six months to two years. |
| Classification | Less serious offence. Limitation period of five years under Article 131. |
| Related provisions | Article 404, abuse of office; Article 410, disobedience; Article 450, failure to prevent offences, which applies to anyone. |
Elements and scope
- The person must be an authority or public official.
- Awareness of the commission of an offence or of the identity of those responsible.
- A duty of the post requiring them to promote its prosecution.
- An intentional failure to act, with direct intent.
Points of application
Intent is the core of the offence. The word intentionally requires proof of a conscious decision not to act. Delay, workload, an error in legal assessment or disagreement about whether the facts were criminal do not meet the threshold.
The duty must attach to the post. Being an official is not enough: the rule, instruction or protocol that placed on that particular employee the duty to promote prosecution must be identified.
The line with abuse of office. Where the omission takes the form of an unjust decision knowingly made, the applicable provision is Article 404. Article 408 covers pure inactivity.
Defence strategy
Absence of direct intent. This is the main line. Workload, allocation criteria, the instructions received and the existence of a reasonable legal view that the facts were not criminal should all be established.
Defining the competence. If the duty to promote prosecution lay with another body or another employee, the conduct is not an offence as regards the person under investigation.
Action taken, even if late. Later transmission of the police report, notification to a superior or the opening of proceedings, even if not immediate, exclude intentional omission.
Defence in this area
If you or your company are facing proceedings in this area, the firm provides defence and prosecution in Alicante and Madrid, with 24-hour assistance to detained persons.
Are you under investigation or facing charges in Spain? Société Juridique acts for foreign nationals throughout Spain, with offices in Alicante and Madrid and a 24-hour custody line. +34 669 30 21 13 or enquire online.
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This page is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the case and requires review of the file by a lawyer. The English rendering of the legal text is unofficial.
Last reviewed: 21 September 2026.
Frequently asked questions
What does Article 408 of the Spanish Criminal Code punish?
An authority or official who, in breach of the duties of their post, intentionally fails to promote the prosecution of offences of which they are aware or of those responsible for them.
What penalty applies?
Special disqualification from public employment or office for six months to two years. The provision carries no custodial penalty.
Is negligence enough?
No. The offence requires the omission to be intentional, which is read as requiring direct intent. Carelessness, delay or an error of assessment fall outside it.
Who can commit it?
Only a person who is an authority or public official under Article 24 of the Criminal Code, and only where the duty to act attached to their post.
How does it differ from abuse of office?
Abuse of office under Article 404 requires an unjust decision knowingly made. Article 408 punishes pure inactivity in the face of a known offence.
What if a private individual does not report?
The general duties of private individuals are governed by other rules, and the failure to prevent certain offences is punished by Article 450, which applies to anyone.
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