Planning malfeasance (art. 320 CP): when the official who reports, votes or fails to inspect is liable

Most planning cases start by looking at the building: who promoted it, who built it, who signed the project. Art. 320 CP looks at the other side of the counter. It punishes the public official who put a signature, a report or a vote at the service of a licence or a planning instrument contrary to planning law, and anyone who, being under a duty to inspect, looked the other way. It has a very specific profile of defendant —municipal technical staff, clerks and comptrollers, planning councillors and mayors— and a feature that surprises those who discover it late: it takes fifteen years to become time-barred.

You are under investigation over a report or a vote: what art. 320 CP actually punishes

The provision sits in Title XVI of the Criminal Code, among the offences relating to land use and town planning, next to art. 319 CP, which targets the developer, builder and site manager. They share a context but not an addressee: art. 319 is aimed at whoever carries out the works; art. 320, at whoever enables them from within the administration.

The offence does not require the building to be erected, nor any measurable physical damage to protected land. What is punished is the administrative decision —or the omission— that opens the door to conduct contrary to the planning rules in force. That is why the moment of commission is usually placed at the date of the report, of the resolution or of the expiry of the period within which the inspection should have taken place, and not at the first stone. As the file passes across several desks, the investigation reconstructs the whole chain: who reported, who audited, who proposed, who decided.

The two forms of conduct: reporting or concealing (320.1) and deciding or voting (320.2)

The provision has two paragraphs, with the same penalty and different addressees.

Art. 320.1 CP punishes the authority or public official who, knowing it to be unjust, carries out any of these three acts:

• Reporting favourably on planning instruments, urbanisation, subdivision, re-parcelling, construction or building projects, or on the grant of licences contrary to the land use or planning rules in force.
• Concealing the breach of those rules on the occasion of an inspection. It is not a matter of failing to see it, but of seeing it and not recording it.
• Failing to carry out mandatory inspections. The Criminal Code does not set that duty: it comes from regional planning legislation and municipal by-laws, which is where it has to be proved.

Art. 320.2 CP imposes the same penalties on the authority or public official who, alone or as a member of a collegiate body, has decided or voted in favour of approving those instruments, projects or licences, also knowing it to be unjust. It is the paragraph that reaches members of a local government board or a full council, and the reason why the minutes of the sessions and the recorded direction of each vote are central documents in these cases.

The two routes are independent. The same file can generate liability for the technician who reported under 320.1 and for the body that approved under 320.2, and an acquittal on one does not carry the other with it.

"Knowing it to be unjust": the element that decides the case

Both paragraphs share the same mental element, and it is what separates a criminal matter from an administrative one. It is not enough that the report, the vote or the licence were unlawful. The person acting must have done so knowing of that unlawfulness. A reasonable difference of interpretation, a mistake in classifying the land, the application of a defensible technical criterion or reliance on earlier reports from other departments do not satisfy the offence.

The prosecution tries to establish that knowledge from objective material on the file: written warnings of illegality, earlier adverse reports, formal requests from the regional administration, or a conflict with the planning rules so obvious that it is hard to argue it went unnoticed. The defence works the same material the other way: what documentation the signatory had in front of them, within what deadlines and with what supporting reports.

One recurring point is worth adding: annulment of the licence by the administrative courts prejudges nothing in the criminal case. It shows that the act was contrary to law, which is the premise, but not knowledge of that conflict, which is the element of the offence.

The penalties: art. 404 CP disqualification plus prison and a fine

Art. 320 CP builds an unusual cumulative penalty. It refers to the penalty of art. 404 CP —special disqualification from public employment or office and from the right to stand for election, for nine to fifteen years— and in addition imposes:

• Prison of one year and six months to four years.
• A fine of twelve to twenty-four months.

That combination has two practical consequences. Special disqualification under art. 42 CP permanently removes the person from the post or office, even an elected one, and bars them from obtaining a similar one for the duration of the sentence; loss of the right to stand for election also prevents them from running for office during that time. And since suspension under art. 80 CP only reaches custodial sentences of no more than two years, the term set in the judgment decides whether that route stays open; disqualification, by contrast, is served in every case.

Who can be liable: municipal technician, clerk, councillor, mayor

Art. 320 CP is a special offence: only someone holding the status of authority or public official within the meaning of art. 24 CP can be a principal, and that concept is wider than the strict civil service status, covering anyone who takes part in the exercise of public functions by direct operation of law, by election or by appointment of the competent authority.

That covers very different profiles within the same council: municipal architects, surveyors and other planning technical staff, through the favourable report of 320.1; inspectors with planning enforcement duties, through concealment of the breach or omission of a mandatory inspection; clerks and comptrollers, where their legality report forms part of the path of the act; and councillors and mayors, for deciding or voting in favour under 320.2.

A private individual without that status —the developer, the urbaniser— cannot be a principal under art. 320 CP, but may still be brought into the case as an accessory if alleged to have induced or assisted someone who is. That boundary between the qualified subject and the private participant is set out in more detail in the analysis of malfeasance and influence peddling.

How it relates to art. 319 CP and to general malfeasance

Three provisions often cross paths in the same proceedings and should not be confused.

• Art. 319 CP. Punishes developers, builders and site managers who carry out works incapable of authorisation on specially protected land (319.1) or on non-developable land (319.2). It is the private side of the same file and additionally allows demolition at the offender’s expense under 319.3.
• Art. 404 CP. General administrative malfeasance: issuing an arbitrary decision knowing it to be unjust, punished with disqualification alone. Where it concerns planning matters in one of the forms of art. 320 CP, that article displaces art. 404 CP as the special provision and adds prison and a fine.
• Document forgery. If the file rests on altered documents —measurements, dates, land classifications— the charges may be extended along that route: see illegal works and planning offences.

Limitation: fifteen years, not five

Here lies the asymmetry with the widest consequences. Art. 131.2 CP requires that, where the penalty set by law is composite, regard be had to the one requiring the longer limitation period. The penalty under art. 320 CP includes disqualification of up to fifteen years, and art. 131.1 CP sets the period at fifteen years where the maximum penalty is disqualification for more than ten.

The contrast with art. 319 CP is striking: there the maximum penalty does not exceed four years in prison, so the offence becomes time-barred after five years. The same file can be criminally dead for the developer and fully alive for the official who reported on it more than a decade earlier. That is why these cases reopen very old administrative files, and why searching the municipal archive is defence work too.

Lines of defence

Working from the material on the file, these are usually the most productive lines:

• Attacking the "knowing" element. That is the core. Documenting which reports were on the file at the time of signature, what criteria the department had been applying in comparable cases, and whether there was a sustainable technical reading of the planning rules.
• Disputing the conflict with the rules in force. If the licence complied with the plan applicable at its date —or if the works could be authorised— the objective premise of the offence falls away.
• Defining actual competence. Signing a sector report is not the same as reporting favourably on the licence: what was reported, on which points and with what scope all matter.
• Challenging whether the omitted inspection was mandatory. In the omission form, the specific rule imposing the inspection, the deadline and the allocation to the defendant must be proved; a lack of resources in the department is relevant.
• Limitation and delay. Even with a fifteen-year period, the exact date of commission of each act has to be verified, along with the effect of any stalling of the proceedings on the mitigating factor of undue delay.

If you are under investigation over a report, a vote or an inspection connected to a planning licence, the time to act is when the summons arrives, not when the indictment is drafted: much of the material that decides these cases sits in the municipal archive and is best secured early. You can contact us at +34 91 078 65 74 or look at our page on planning misconduct in office and the wider picture of urban planning crimes.