Article 428 Spanish Criminal Code: Improper Influence by a Public Official

Article 428 of the Spanish Criminal Code punishes the public official or person in authority who influences another official, taking advantage of the powers of his office or of any other situation arising from his personal or hierarchical relationship with him, in order to obtain a decision capable of generating directly or indirectly an economic benefit for himself or for a third party. The penalty rises to its upper half where the benefit is actually obtained. The offence requires more than a request: it requires the exploitation of a position of ascendancy.

Wording of Article 428 of the Spanish Criminal Code

Elements of the offence

1. A perpetrator who is a public official or a person in authority.
2. Influence exerted over another official or person in authority, understood as pressure capable of affecting his freedom of decision.
3. The exploitation of the powers of the office or of a personal or hierarchical relationship, which is what distinguishes influence from a legitimate request or report.
4. The purpose of obtaining a decision capable of generating an economic benefit, directly or indirectly, for the accused or for a third party.

Defence strategy

A request is not influence. This is the central line. Asking a colleague about the state of a file, transmitting a citizen’s complaint, reporting on the merits of a matter or expressing a technical opinion are ordinary functions of public service. The offence requires pressure that exploits ascendancy. The defence establishes the nature of the communication, its channel and whether the recipient perceived any pressure, which is why his evidence is decisive.

Absence of an economic purpose. The article requires a purpose of economic benefit. Influence exerted for a political, personal or institutional objective, however improper, falls outside it and belongs to the disciplinary sphere. Establishing what the accused sought, and that no benefit was capable of accruing to him or to an identified third party, defeats the charge.

The decision was lawful and inevitable. Where the decision obtained was the only one legally possible, or would have been taken in the same terms in any event, the causal link between the influence and the decision is broken. This is established with the technical reports in the file and with the precedents of the same body, and it also excludes any concurrent prevarication.

The benefit was not obtained. The upper half applies only where the benefit sought is actually obtained. Where the decision was refused, annulled or never produced the advantage, the penalty remains in the lower bracket, which for a first offender is capable of suspension. The defence establishes the actual outcome of the file rather than the intention attributed.

• Article 404: prevarication by officials
• Article 419: bribery contrary to duty
• 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.