Usurpation of public functions (Art. 402 CP): when impersonating an authority or public officer is a crime in Spain

Impersonating an authority or public officer is one of those acts that popular imagination immediately associates with crime, yet whose legal boundary is narrower than it seems. Not every boast and not every disguise amounts to the usurpation of public functions under Article 402 of the Spanish Criminal Code. It is worth understanding precisely what this offence punishes, what separates it from the improper use of a uniform under Article 402 bis and from professional intrusion under Article 403, and which lines of defence genuinely apply. We explain this from the firm's technical standpoint, without alarmism and without promises.

What Article 402 CP punishes

Article 402 CP punishes anyone who unlawfully carries out acts proper to an authority or public officer while claiming official status, with one to three years' imprisonment. The provision sits among the forgery offences, and its protected interest is twofold: the proper functioning of the public administration and the trust citizens place in those who exercise public powers.

The heart of the offence lies in the combination of two requirements. It is not enough to claim to hold a post, nor to dress as one: it is necessary to perform acts that fall within the powers of that authority or officer and to do so while falsely claiming official status. It is the conjunction of an appearance of officialdom and the actual exercise of the function that gives the offence its substance.

The elements of the offence

For usurpation under Article 402 to be found, the following elements must be present cumulatively:

• Exercise of acts proper to the post: the conduct must consist of performing acts that fall within the powers of an authority or a public officer (for example, giving an order, carrying out an identity check, acting as an agent, or making an administrative decision).
• Claim of official status: the offender must falsely present themselves as vested with that post, creating in others the appearance that they are acting with public authority.
• Unlawfulness: the exercise must be unlawful, that is, without any qualification, authorisation or cover that supports it.
• Intent: the person must act in the knowledge and with the will of exercising functions that are not theirs and of feigning an official status they do not hold.

The absence of any of these elements may take the conduct outside the offence. That is why the defence pays close attention to whether there really was an act exercising the function, rather than a mere verbal claim or ambiguous conduct.

Exercising the function, not just boasting about it

One of the most disputed points in these proceedings is the difference between boasting about a post and exercising it. Article 402 requires the performance of acts proper to the authority or officer; merely claiming to hold an official status, without performing any act typical of that function, may not be enough to make up the offence.

Thus, saying in conversation that one is a police officer, or showing a made-up credential and nothing more, is not necessarily the same as giving an order, carrying out a simulated arrest or intervening while invoking public powers. The line between harmless pretence —which may remain outside the offence or be channelled into another one— and the actual exercise of the function is an area of meticulous factual analysis, in which each gesture and each specific act counts. A sound defence calls for criminal lawyers experienced in usurpation of public functions, able to pin down precisely what was done and how far it went.

The improper use of a uniform or insignia (Art. 402 bis CP)

Alongside the main offence, Article 402 bis CP punishes as an autonomous offence the improper public use of a uniform, dress or insignia conferring official status by someone not authorised to wear it. It is a less serious offence, punishable by a fine, with a scope different from that of Article 402.

The essential difference is that Article 402 bis does not require carrying out the duties of the post: the unauthorised public use of the official uniform or insignia is enough. It therefore punishes conduct that stays at the level of appearance —dressing as an agent, displaying official badges— without amounting to the actual exercise of the power. If acts proper to the authority are added to that use, the matter may shift to the more serious offence under Article 402.

The difference from professional intrusion (Art. 403 CP)

Usurpation of public functions is often confused with professional intrusion, but they are different offences. Article 403 CP punishes anyone who performs acts proper to a profession without holding the corresponding academic or official qualification (for example, working as a doctor, a lawyer or an architect without the relevant degree).

The distinction goes to the substance:

• Article 402 (usurpation of functions): protects the exercise of public powers, proper to an authority or officer, and trust in the administration.
• Article 403 (intrusion): protects the activity reserved to qualified professions and the interest in certain tasks being performed only by those who can prove the required qualification.

So posing as an inspector of a public body in order to act as one is usurpation of functions, whereas pretending to be a doctor in order to treat patients is intrusion. The correct classification of the act shapes both the penalty and the strategy, and should not be taken for granted.

Relationship with document forgery and fraud

In practice, usurpation of functions rarely appears on its own. It commonly concurs with other offences, and delimiting that concurrence is essential in order not to take on a broader charge than is warranted:

• Document forgery (Arts. 390 et seq. CP): if official documents —credentials, badges, decisions— are fabricated or manipulated in order to feign the post, a forgery offence may concur, autonomous from the usurpation.
• Fraud (Art. 248 CP): where posing as the post-holder is used as deception to obtain a transfer of assets (money, goods, a service), the act may also amount to fraud. The usurpation is the means; the fraud, the financial end.

Determining whether the facts make up a single offence, a concurrence of offences or a concurrence of laws is a technical question of the first order, with a direct bearing on the total penalty. Being liable for a usurpation is not the same as being liable for a cluster of offences: that is why the defence must carefully analyse what was done, with what aim and with what result.

Lines of defence against an Art. 402 CP charge

There is no single defence: each case dictates its own strategy depending on the facts and the available evidence. The most common lines, always within respect for the presumption of innocence, are:

• Absence of any exercise of the function: showing that there was no act proper to the post, but only a mere claim or ambiguous conduct that does not make up the offence.
• No claim of official status: establishing that no appearance of acting with public authority was created, or that the other party knew the person's true status.
• Absence of intent or mistake: examining whether the person may have acted on a mistaken belief about their authorisation or about the scope of their conduct.
• Disputing the concurrence: avoiding the undue stacking of offences (forgery, fraud) where the facts justify only one classification, or channelling a concurrence of offences into a concurrence of rules.
• Channelling to a less serious offence: assessing whether the conduct in fact fits Article 402 bis (use of a uniform), with a notably lower penalty, rather than the main offence.

It is worth remembering that, as this is an offence carrying a prison sentence, legal involvement from the very first summons is decisive. Each statement and each document submitted must be assessed with judgement, and every step is best channelled through the lawyer.

Specialist defence with Alonso Sala

A charge of usurpation of public functions demands a technical response from the outset, especially when it is intertwined with forgery or a possible financial deception. At Alonso Sala, a criminal defence firm based in Madrid (calle Velázquez 27) with coverage throughout Spain, we approach this type of proceeding with rigour, discretion and a detailed analysis of the facts and the evidence. Each matter is studied individually, in light of its specific circumstances and the legal framework in force, in order to build the defence strategy that best fits the case.