Article 446 Spanish Criminal Code: Judicial prevarication

Article 446 punishes the judge or magistrate who knowingly hands down an unjust judgment or decision, with the most severe frame reserved for an unjust judgment against the accused in criminal proceedings for a serious or less serious offence.

Wording of Article 446 of the Spanish Criminal Code

Elements of the offence

1. The status of judge or magistrate, which excludes other public officials, who fall under Article 404.
2. A judgment or decision which is unjust, that is, one whose content cannot be sustained by any acceptable method of legal interpretation.
3. Actual knowledge of that injustice, since the provision requires the conduct to be knowing.
4. The nature of the proceedings and the execution of the judgment, which determine which of the three frames applies.

Defence strategy

The concept of an unjust decision. The case law requires a flagrant and manifest departure from the law, and not merely an erroneous or debatable interpretation. Establishing that the decision rests upon a defensible legal reading, even a minority one, excludes the offence altogether.

Knowledge of the injustice. The provision punishes only the knowing conduct, negligent prevarication falling under Article 447. The reasoning of the decision itself, and the material available in the file at the time, are the evidence upon which that knowledge is assessed.

Judicial independence as a limit. The offence cannot be used as a means of reviewing a judicial decision. Where the ordinary remedies were available and were not exhausted, or where a higher court merely disagreed with the decision, the criminal complaint is habitually inadmissible.

Execution of the judgment. The first frame distinguishes according to whether the judgment was executed. Establishing that it was not, or that its effects were suspended, avoids the imposition of the penalty in its upper half together with the fine.

• Article 404 CP: prevarication by public officials
• Article 456 CP: false accusation
• False testimony and obstruction of justice
• Corruption offences in Spain

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.