Article 404 Spanish Criminal Code: Administrative Malfeasance (2026)
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listIn this article
lightbulbKey Takeaways
- check_circleAn arbitrary decision issued knowingly
- check_circleDisqualification only: 9 to 15 years
- check_circleNot every illegality is malfeasance
- check_circleKey: a reasonable legal interpretation
Quick answer
Article 404 of the Spanish Criminal Code punishes administrative malfeasance (prevaricación): the authority or public official who, knowing it to be unjust, issues an arbitrary decision in an administrative matter. Article 404 itself sets the penalty, which is solely special disqualification from public employment or office and from standing for election for 9 to 15 years; it carries no prison sentence. Not any illegality suffices: the Supreme Court requires the decision to be arbitrary, meaning its illegality is gross and cannot be explained by any reasonable interpretation of the law.
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Article 404 of the Spanish Criminal Code governs administrative malfeasance (prevaricación): the offence of a public official who knowingly issues an unjust decision. As criminal defence lawyers, we explain its scope.
What Article 404 Says
Malfeasance is committed by an authority or public official who, knowing it to be unjust, issues an arbitrary decision in an administrative matter. The penalty is special disqualification from public employment or office and from standing for election, for 9 to 15 years.
An Offence Without a Prison Sentence
Article 404 is unusual: it carries no prison sentence, only disqualification. The aim is to remove the official from public service rather than deprive them of liberty. This does not make it minor: disqualification of up to 15 years effectively ends a political or civil-service career.
What an "Arbitrary Decision" Means
Not every illegality is malfeasance. The Supreme Court requires the decision to be arbitrary — an illegality so gross and obvious that it cannot be explained by any reasonable interpretation of the law. It must also be a genuine decision, an administrative act with decision-making content, not a mere report or step.
Malfeasance by Omission
Malfeasance does not always consist in issuing an unjust decision. Case law has accepted malfeasance by omission where the official, having a legal duty to decide, deliberately fails to do so and that inaction is materially equivalent to an arbitrary decision (for instance, not deciding in order to let deadlines lapse and produce an effect favourable to a third party). Mere passivity or delay is not enough: a specific duty to decide and a conscious, unjust failure to act must be established.
When the Offence Becomes Time-Barred
Because Article 404 CP is punished with disqualification of up to 15 years, its maximum penalty is disqualification for more than ten years. Accordingly, under Article 131 CP, administrative malfeasance becomes time-barred after 15 years. The period runs from when the offence is committed; in continuing conduct, fixing the starting point (dies a quo) can become a significant defence issue.
Illegality is not malfeasance
An administrative act that the administrative courts may annul is not, in itself, a crime. Malfeasance requires a flagrant injustice issued with full knowledge.
Defence Strategies
- A reasonable legal interpretation: the decision, though debatable, was defensible in law.
- No "knowing" element: there was no knowledge of injustice, but error or a technical disagreement.
- The act is not a decision: it was a report, proposal or non-decisive step.
- Reliance on technical reports: the official followed the legal or technical services.
- Referral to administrative-court proceedings as the proper channel.
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Frequently asked questions
What does Article 404 of the Spanish Criminal Code say?expand_more
It punishes the authority or public official who, knowing it to be unjust, issues an arbitrary decision in an administrative matter. The penalty is special disqualification from public employment or office and from standing for election for 9 to 15 years.
Does malfeasance under Article 404 carry a prison sentence?expand_more
No. Article 404 CP provides only special disqualification of 9 to 15 years, with no prison sentence. The aim is to remove the official from public service. It is still a serious offence: disqualification of up to 15 years effectively ends a political or civil-service career.
What is an arbitrary decision for the purposes of Article 404?expand_more
Not every illegality is malfeasance. The Supreme Court requires the decision to be arbitrary: an illegality so gross and obvious that it cannot be explained by any reasonable interpretation of the law. It must also be a genuine decision — an administrative act with decision-making content, not a mere report or step.
When does the offence of administrative malfeasance become time-barred?expand_more
Because Article 404 CP is punished with disqualification of up to 15 years, its maximum penalty is disqualification for more than ten years, so the offence becomes time-barred after 15 years under Article 131 CP. The period starts to run from when the offence is committed.
Can malfeasance be committed by omission?expand_more
Beyond issuing an unjust decision, case law has accepted malfeasance by omission where the official, having a legal duty to decide, deliberately fails to do so and that inaction is materially equivalent to an arbitrary decision. It is a contested area that requires analysing the specific duty to decide case by case.
How is a malfeasance charge defended?expand_more
By showing that the decision rested on a reasonable legal interpretation, that there was no knowledge of injustice (no 'knowing' element), that the act was not a genuine decision, or that the official relied on prior technical or legal reports.
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