Article 404 Spanish Criminal Code: Prevarication by Public Officials

Article 404 of the Spanish Criminal Code punishes the person in authority or public official who, knowing it to be unjust, issues an arbitrary decision in an administrative matter. The penalty is not imprisonment but special disqualification from public employment or office and from standing for election for nine to fifteen years, which for an elected representative or a career official is ordinarily the gravest consequence available. The article is the general provision behind the specific offences of prevarication in planning, in the environment and in the award of contracts.

Wording of Article 404 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 representatives and members of collegiate bodies.
2. A decision in an administrative matter, understood as a determination affecting rights or interests, which excludes mere reports, proposals and internal acts.
3. That the decision is arbitrary, meaning flagrantly and manifestly contrary to law, not merely erroneous or subsequently annulled.
4. Knowledge of the injustice. Negligent or mistaken decisions, however damaging, fall outside the article.

Defence strategy

Illegality is not arbitrariness. The case law is consistent: the annulment of a decision by the administrative courts does not establish this offence. What is required is a decision that no reasonable interpretation of the law could support. Where the matter was legally debatable, where a technical or legal report supported the decision, or where the same criterion had been applied in comparable files, the element fails. The defence produces the internal reports and the administrative precedents.

The act was not a decision. The offence requires a decision in an administrative matter. Reports, proposals, technical opinions, verbal instructions and preparatory acts are not decisions, even where they influenced the outcome. Identifying precisely which act is attributed to the client, and whether it determined anything, frequently removes him from the article, particularly where he was a technician rather than the signing authority.

Individual responsibility in collegiate decisions. Where the decision was taken by a plenary session or a governing board, responsibility must be established individually: what documentation was before each member, what warnings were recorded, and whether the matter was tabled with sufficient notice. A member voting on a technical file supported by a favourable report is not in the position of the officer who prepared it.

The disqualification and its scope. Because the only penalty is disqualification, the defence addresses its length and scope specifically, since nine years and fifteen years are materially different outcomes for a person in mid-career. Submissions on the absence of personal benefit, on the absence of harm and on the isolated character of the decision are directed to that question rather than to guilt alone.

• Article 320: planning offences by officials
• Article 419: bribery of 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.