Article 320 Spanish Criminal Code: Planning Offences by Public Officials

Article 320 of the Spanish Criminal Code punishes the public official who, knowing the decision to be unjust, reports favourably on planning instruments, subdivision or building projects or the grant of licences contrary to the planning rules in force, who conceals an infringement discovered on inspection, or who omits an inspection that was compulsory. The penalty combines that of the general offence of prevarication in article 404 with imprisonment of one year and six months to four years and a fine. For a purchaser whose property is threatened with demolition, this article is what allows the conduct of the municipality to be brought into the proceedings.

Wording of Article 320 of the Spanish Criminal Code

Elements of the offence

1. A perpetrator who is a person in authority or a public official, which includes elected councillors, municipal technicians and members of collegiate bodies.
2. One of the modalities: a favourable report, a decision or vote in favour, the concealment of an infringement discovered on inspection, or the omission of a compulsory inspection.
3. That the decision or report was contrary to the territorial or urban planning rules in force at the time.
4. Knowledge of the injustice. The requirement is deliberate injustice, not error, and it is the element on which these prosecutions are decided.

Defence strategy

Error rather than deliberate injustice. The article requires knowledge of the injustice, which in the case law means a decision that is flagrantly and manifestly contrary to law, not one that is merely wrong or later annulled. Where the planning position was genuinely debatable, where the officer followed a technical report, or where the practice had been consistently applied in comparable cases, the mental element is absent. The defence assembles the internal reports, the precedents of the same municipality and any legal opinions obtained at the time.

The rule said to have been infringed. The prosecution must identify the specific planning rule contravened and show that it was in force when the decision was taken. Plans under revision, transitional regimes and rules whose application was suspended by the courts are frequent sources of confusion. The defence obtains the certified text of the plan applicable on the date and compares it with the decision, which in a substantial proportion of files reveals that the rule relied on was adopted later.

Individual responsibility within a collegiate body. Where the decision was taken by a collegiate body, the second paragraph reaches those who voted in favour knowing the decision to be unjust. Individual responsibility must be established for each member: what documentation was before them, what the technical reports said, whether the item was tabled with sufficient notice, and whether any warning was recorded. A councillor voting on a technical matter on the strength of a favourable municipal report is in a materially different position from the officer who drafted it.

The omission of compulsory inspections. This modality requires that the inspection was compulsory and that its omission was deliberate. Where the municipality lacked the technical staff to carry out inspections, where an inspection plan was in place and was followed, or where the works were not visible from the exterior, the omission is not the offence. The defence documents the resources and the inspection records of the department over the relevant period.

• Article 319: unlawful building
• Spanish Criminal Code by article
• Property matters: legal service
• 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.