Crimes Against Public Administration: A Practical Legal Guide

Crimes against the Public Administration (Arts. 404 et seq. CP) protect the proper functioning of the State and the impartiality of its servants. When an official or authority crosses the line of legality, they face not only prison sentences but also the "civil death" that disqualification represents. As criminal lawyers experienced in offences against the public administration, we know it is vital to distinguish administrative error from criminal intent.

Who Can Commit These Offences

For criminal purposes, the concepts of official and authority are interpreted broadly: what matters is the actual exercise of public functions, whether by appointment, election or any other form of participation in them, and not the label on the employment contract. The circle does not close there. A private individual cannot commit malfeasance alone, but can answer as a participant who induces or cooperates in the official's decision — and in bribery the private party is directly punished as the active briber. This is why these investigations rarely target one person: they tend to draw in everyone who intervened in the file.

Malfeasance: an Unjust or Unlawful Decision?

This is the flagship offence (Art. 404 CP). It consists of issuing an arbitrary decision in an administrative matter while "knowingly" aware of its injustice. The key to the defence is to attack the subjective element: to show that there was no arbitrariness, but rather a mistaken or debatable legal interpretation, which must be resolved by the administrative courts, not the criminal ones.

Not every unlawful decision is criminal. Only the blatantly arbitrary one — the decision that no reasonable legal interpretation can support — crosses into Art. 404 CP. A decision later annulled by the administrative courts may simply have been wrong, and criminal law is the last resort, not a second avenue of appeal against debatable administrative rulings.

Bribery and Corruption

Bribery punishes both the official who receives (passive bribery) and the private individual who pays (active bribery). It need not be cash; gifts, trips or favours also count. The defence often focuses on the nullity of the evidence (hidden recordings, searches without safeguards).

How These Cases Are Investigated

These are paper-heavy proceedings. The investigation revolves around the administrative file: who drafted the reports, what the technical and legal advisers recommended, who signed and in what order. Investigations tend to be long, and the official often spends years as a suspect before the case is resolved. That same file is also the defence's best ally — a decision adopted following the reports of the technical staff is very difficult to portray as knowingly arbitrary.

Defence Strategies

• Attacking the subjective element: showing the absence of the "knowingly" requirement — the official believed, with reasons, that the decision was lawful.
• Reasonable interpretation: proving that the decision rested on a defensible reading of the rules, supported by internal reports or prior practice.
• Nullity of evidence: excluding recordings, searches or seizures obtained without the proper safeguards.
• Administrative irregularity, not crime: redirecting the matter to where it belongs — disciplinary or administrative review.
• In embezzlement cases: demonstrating that the funds were applied to a public purpose, however irregular the channel, which excludes the more serious form of misappropriation.

Consequences for the Career

Beyond imprisonment, the main penalty is disqualification. A final conviction means the loss of civil-servant status and the impossibility of working in the public sector again, often for life.