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Bribery, influence peddling, misfeasance, fraud against the administration and misappropriation of public funds in municipal files. The penalty that decides these cases is almost never imprisonment: it is disqualification.
In brief. When a councillor, a municipal officer or a business owner is summoned as a suspect for bribery, influence peddling or fraud against the administration, the first question is usually whether they will go to prison. It is the wrong question. Prison sentences of up to two years are ordinarily suspended for first offenders under Article 80 of the Criminal Code. What is not suspended is the disqualification.
When a councillor, a municipal technical officer or a business owner receives a summons as a suspect for bribery, influence peddling or fraud against the administration, the first question is usually whether they will go to prison. It is the wrong question. In most of these proceedings, where the prison sentence finally imposed does not exceed two years and the convicted person has no record, execution can be suspended under Article 80 of the Criminal Code. What is not suspended is the disqualification. For a mayor or councillor with a political vocation, a conviction for administrative misfeasance under Article 404, which carries no prison sentence at all, means between nine and fifteen years off any electoral list. Three full terms. In misappropriation under Article 432 the penalty is harsher still, because it is absolute disqualification, which under Article 41 strips all honours, employments and public offices, even elective ones. For the business owner the mechanics are equivalent and often more lethal: Article 424.3 provides, where the bribery relates to procurement, subsidies or auctions, disqualification from contracting with the public sector, and Law 9/2017 attaches prohibitions on contracting to a final conviction.
The second feature of these cases is their duration. A corruption case in a medium-sized town hall is rarely investigated within a year. The usual pattern begins with a complaint, a report from the municipal audit office or a specialised police unit, continues with the imaging of e-mail and telephones, bank requests, expert reports on prices and abnormally low bids and testimony from dozens of municipal employees and unsuccessful bidders, and ends in proceedings with several separate strands and more than ten suspects. Article 324 of the Criminal Procedure Act sets a twelve-month period, extendable, and managing that clock is itself a defence decision.
| Offence | Article | Penalty framework | Decisive consequence |
|---|---|---|---|
| Passive bribery (act contrary to duty) | 419 | 3 – 6 years + fine | Special disqualification 9 – 12 years |
| Bribery for an act of the post | 420 | 2 – 4 years | Disqualification 5 – 9 years |
| Gift in consideration of the office | 422 | 6 months – 1 year | Suspension of office 1 – 3 years |
| Active bribery by the contractor | 424 · 427 bis | Same as the officer | No public contracting 5 – 10 years |
| Administrative misfeasance | 404 | No imprisonment | Disqualification 9 – 15 years |
| Planning misfeasance | 320 | Penalties of 404 + prison + fine | Licences and planning instruments |
| Fraud against the administration | 436 – 437 | 1 – 3 years | Disqualification 6 – 10 years |
| Misappropriation of public funds | 432 – 435 | 2 – 6 years | Absolute disqualification · mitigation by repayment (434) |
Penalty ranges are indicative and set out the ordinary framework; the sentence actually imposed depends on the degree of completion, aggravating and mitigating circumstances and the specific facts of each case.
The line between administrative irregularity and criminal offence is where most of these cases are won or lost. A badly processed minor contract, a debatable splitting of contracts or an unfavourable audit report is not, in itself, a crime: each offence demands its own subjective element, misfeasance requires knowledge of the injustice, and fraud requires collusion or artifice. Being the last link in a chain of decisions does not make anyone its designer.
Bribery requires proof of the connection between the advantage and the act. A friendship between a councillor and a contractor is not enough, nor is the fact that a company has won several tenders. Where the prosecution rests on inference from circumstantial evidence, the defence must attack the quality of each indication and, above all, establish reasonable alternative explanations. On circumstantial evidence and its sufficiency to displace the presumption of innocence, STS 1001/2022 of 22 December (Criminal Chamber, cassation 10279/2022, ECLI:ES:TS:2022:4805) contains the general doctrine on the plurality and connection of indications.
On investigation time limits, STS 747/2024 of 18 July (ECLI:ES:TS:2024:4260) addresses the computation of the Article 324 period; on access of the defence to the essential elements of a secret file, STC 83/2019 of 17 June (ECLI:ES:TC:2019:83) and STC 180/2020 of 14 December (ECLI:ES:TC:2020:180) are the reference doctrine; and on public funds received for a specific purpose, STS 354/2022 of 6 April (ECLI:ES:TS:2022:1451) resolves the concurrence between misappropriation and subsidy fraud. These references must be verified at source before being relied upon in any pleading; this page does not constitute legal advice.
If the successful bidder is a company, Article 31 bis allows proceedings against the entity itself, and Articles 427 bis and 430 expressly provide for corporate liability in bribery and influence peddling. A real compliance programme, with effective controls over public contracting and payments to intermediaries, is defence material; a programme bought and never applied is not.
Mayors and councillors for planning, procurement, festivities or services in municipalities of the Alicante coast, managing sizeable budgets with short technical staffs.
Municipal architects, engineers, heads of licensing and procurement units and audit officers who appear in the case because of their signature, often without real decision-making power.
Construction and service companies, concession holders and habitual suppliers, often arriving after a search of their offices and worried about tenders in progress. Companies summoned as legal persons under Article 31 bis need their own separate defence.
Excluded bidders, municipal employees and public bodies harmed: complaint, private prosecution and recovery of what was defrauded.
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