Where is prevarication regulated?
In Title XIX of the Penal Code, the Crimes against public administration, previously called crimes of officials in the exercise of their positions.
Specifically, Chapter I of said Title deals with on the prevarication of public officials and other unjust behavior. As can be seen, the one that receives the most attention in this field is the crime of prevarication which, according to the Penal Code, consists of the following:
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To the authority or public official who, knowing its injustice, dictates an arbitrary resolution in an administrative matter will be punished with the penalty of special disqualification for employment or public office and for the exercise of the right to passive suffrage for a period of nine to fifteen years.
What is the active subject of a right of prevarication?
Since this is a special crime, not everyone can commit prevarication.
Only an authority or public official can commit such a crime., such as judges, members of the Congress of Deputies, members of the Senate, members of the Autonomous Parliaments or members of the European Parliament.
This reason makes it interesting to bring the article 24 of the Penal Code:
For criminal purposes, authority will be deemed to be the one who, alone or as a member of any corporation, court or collegiate body, has command or exercises jurisdiction own. In any case, the members of the Congress of Deputies, the Senate, the Legislative Assemblies of the Autonomous Communities and the European Parliament will be considered as authority. Public Prosecutor's Office officials will also be deemed to have authority.
Any person who, by immediate provision of the Law or by election or appointment of a competent authority, participates in the exercise of public functions will be considered a public official.
What is the punishable conduct of prevarication?
In accordance with the aforementioned article 404 of the Penal Code, it can be concluded that prevarication consists of dictate an arbitrary resolution knowing its injustice.
What are the requirements for prevarication to occur?
As a necessary budget for this behavior to be triggered, there must be an administrative resolution, whether express or tacit.
That is, there must be an administrative act that contains a declaration of will or some other type of content.
Besides, the arbitrariness which is spoken of in article 404 of the Penal Code It must be serious and objective, assuming a notorious and manifest incompatibility between the resolution and what is established by the Legal System.
The jurisprudence Maintains that said contradiction must be gross, notable, flagrant, clamorous, or go beyond current legislation..
In this sense, it must be pointed out that the absolute lack of competence of an official to issue a resolution could also qualify as an arbitrary decision.
Another of the essential requirements for one to be able to speak of prevarication is that the much-cited arbitrary resolution It must be dictated knowing its injustice. The legislator introduced this subjective element that introduces us to the scope of fraud. This is because the classic expression of "knowingly" corresponds to direct fraud.
Taking this notion into account, it can be stated that you must be aware and willing to issue an arbitrary resolution.
This issue implies the need to exclude the punishment of unjust resolutions that had been issued due to imprudence, negligence, or even when they had been written with intent, but not direct or first degree. Another question would be the possible civil liability or disciplinary action that could arise from the conduct of an official who acted irregularly.
Prevarication, crime of action or omission?
Although it is not usually very common, omissive nature cannot be excluded of the crime of prevarication.
Years ago there was a very restrictive tendency to admit the possibility that this punishable conduct could be developed through omission, but currently it is accommodated due to administrative silence (when something is asked of the Public Administration and it does not answer).
It should be noted that, since the Public Administration has the obligation to decide, The more the need for a statement prevails, the more reasons there will be to punish omissive behavior..
Is there a possibility of correction?
The resources Administrative authorities admit the possibility of correcting irregularities that may arise, but this does not prevent Criminal Law from intervening by punishing this crime when it manifests itself.