Article 422 Spanish Criminal Code: Bribery: Gifts in Consideration of Office

Article 422 of the Spanish Criminal Code punishes the person in authority or public official who accepts a gift or present offered in consideration of his office or function, with imprisonment of six months to one year and suspension from public office of one to three years. No act of the office need be sought or performed: what is punished is the acceptance itself. It is the lightest of the bribery offences and, for that reason, the classification the defence pursues where a benefit cannot be denied.

Wording of Article 422 of the Spanish Criminal Code

Elements of the offence

1. A perpetrator who is a person in authority or a public official.
2. The acceptance of a gift or present, personally or through an intermediary, whether for himself or for a third party.
3. That the gift was offered in consideration of the office or function, that is by reason of the position held.
4. The absence of any link to a specific act of the office, which would bring the conduct within articles 419 or 420.

Defence strategy

Social or customary courtesy. Not every gift is a bribe. Hospitality of customary value in the sector, an item of trivial worth, an invitation extended to a group, and gifts exchanged on institutional occasions are outside the article, which requires that the gift be given by reason of the office in a sense that compromises impartiality. The defence documents the value, the occasion, the practice of the body concerned and any internal rules on gifts.

Absence of connection with the office. Where the benefit arose from a personal or family relationship predating the appointment, or from a commercial relationship unconnected with the function, the element fails. Establishing the history of the relationship, with its documentary trail, is what distinguishes a gift given to a friend from one given to an official.

Using this article as a reclassification. Where a benefit is undeniable, the defence works to exclude any link with a specific act of the office, which is what separates this article from articles 419 and 420. Showing that the official had no power over the matter said to have been procured, or that the decision taken was the only one legally possible, brings the case into this bracket and with it the possibility of a suspended sentence.

The position of the giver and the reporting exemption. Where the firm acts for the private individual, article 424 punishes him with the same penalties, but article 426 exempts the person who reports the facts to the authorities within two months of the events, before any proceedings begin. That option must be assessed at the earliest possible moment, because it disappears once the investigation is opened.

• Article 419: bribery contrary to duty
• Article 420: bribery for a proper act
• 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.