Criminal Defence for Crimes by Public Officials

Crimes by public officials comprise a set of criminal offences that punish abuse, infidelity or breach of duties in the exercise of public functions. Regulated in Title XIX of the Spanish Criminal Code (Articles 404-445), they protect the proper functioning of Public Administration and citizen trust in institutions.

You have been reported as a public official: what it means and what happens next

An offence committed in the exercise of a public post carries a consequence that is often more damaging than the sentence itself: disqualification from holding office. Alongside the criminal case, a disciplinary file usually runs in parallel, and what is said in one reaches the other. The classification also matters a great deal, because the offences of this group have very different elements and the initial complaint frequently mixes them together.

What to do (and what not to do) before making a statement

• Do not make a statement without a lawyer of your own choosing. Articles 118 and 520 of the Criminal Procedure Act (LECrim) give you the right to remain silent, not to incriminate yourself and to speak with your lawyer in private before the statement. What is said in the first appearance conditions the whole case.
• Secure the administrative file and the reports you signed, together with the instructions received and the technical opinions on which the decision was based. A decision supported by technical reports is a different case from one without them.
• Coordinate the criminal defence with the disciplinary file: a statement made in the internal proceedings reaches the criminal case.
• Do not delete messages, files or records. Deletion is read as an indication of guilt and, in a forensic image, it is almost always recoverable.

Criminal Law Concept of Public Official

Article 24.2 of the Criminal Code defines a public official as anyone who, by direct provision of law, election or appointment by competent authority, participates in the exercise of public functions. This concept is broader than the administrative definition and includes: career civil servants, public employees, elected officials (council members, members of congress, senators), procurement committee members, notaries, registrars, and anyone who, under one of those titles, actually takes part in public functions.

Main Criminal Offences

The most frequent offences in this area include:

• Administrative misconduct in office (Art. 404 CP): Issuing an arbitrary resolution knowing it to be unjust. Penalty: special disqualification 9-15 years.
• Abandonment of office and failure to prosecute crimes (Arts. 407-408 CP): Penalty: 1 to 4 years' imprisonment and absolute disqualification of 6 to 10 years where the abandonment seeks to avoid prosecuting offences under Titles XXI to XXIV, and special disqualification of 1 to 3 years in other cases (Art. 407); special disqualification of 6 months to 2 years for intentionally failing to prosecute (Art. 408).
• Disobedience and denial of assistance (Arts. 410-412 CP): Refusing to comply with a judicial order or provide required assistance. Penalty: fine and disqualification (Arts. 410-411), or fine and suspension from office (Art. 412).
• Infidelity in document custody (Arts. 413-415 CP): Destroying, concealing or stealing entrusted documents. Penalty: 1-4 years imprisonment, a fine of 7 to 24 months and special disqualification of 3 to 6 years (Art. 413); lower penalties under Arts. 414 and 415.
• Disclosure of secrets (Art. 417 CP): Revealing secrets known by reason of the office. Penalty: a fine of 12 to 18 months and disqualification of 1 to 3 years; 1 to 3 years' imprisonment where serious harm results (Art. 417.1), and 2 to 4 years where the secrets belong to a private individual (Art. 417.2).
• Bribery (Arts. 419-427 CP): Soliciting or receiving gifts in exchange for official acts. Penalty: 3-6 years imprisonment for an act contrary to official duties (Art. 419), 2-4 years for an act that is part of those duties (Art. 420) and 6 months-1 year for accepting gifts offered by reason of the office (Art. 422).
• Influence peddling (Arts. 428-431 CP): Influencing an official by exploiting one's position. Penalty: 6 months-2 years.
• Embezzlement (Arts. 432-435 CP): Appropriating, with intent to profit, public property in one's charge, or allowing another to appropriate it. Penalty: 2-6 years imprisonment and special disqualification of 6-10 years (Art. 432.1); applying it to a different public purpose falls under Art. 433.

Jurisdiction and Forum Privileges

Many of these offences carry special forum privileges (aforamiento): members of the Government answer before the Criminal Chamber of the Supreme Court (Art. 102 of the Spanish Constitution), together with the other office-holders listed in Art. 57 of the Judiciary Act (LOPJ); regional office-holders, before the court their Statute of Autonomy designates. Forum privileges condition the entire defence strategy from the outset.

The concept of public authority and public official under Article 24 CP

For criminal-law purposes, the concept of public official does not match the labour or administrative definition. Article 24 of the Criminal Code defines a public official as anyone who, by direct operation of law, by election, or by appointment of a competent authority, takes part in the exercise of public functions. It is a functional and autonomous definition: what matters is not the statutory relationship, the type of contract, or ownership of the post, but whether the person actually performs a public function. As a result, interim staff, temporary appointees, fixed-term contractors, and even private individuals momentarily vested with a public power may fall within it.

The same provision treats as an authority anyone who, alone or as a member of a corporation, court, or collegiate body, exercises command or jurisdiction of their own. The distinction matters because many offences in this chapter require one status or the other, and the classification of the perpetrator determines which figure applies. The defence examines in each case whether the status required by the offence is truly present, since its absence may exclude the special offence or redirect the facts to an ordinary one. This boundary is often the first technical point of debate in the proceedings.

Jurisdiction, stages of the proceedings, and the question of aforamiento

Objective jurisdiction is set by the maximum abstract penalty of the charged offence under Article 14 of the Criminal Procedure Act: the Criminal Section of the Court of Instance (Sección de lo Penal; formerly the Criminal Court, Juzgado de lo Penal) tries offences punishable by a custodial sentence of no more than five years (and offences carrying penalties of a different nature not exceeding ten years), while the Provincial Court (Audiencia Provincial) acts where the penalty exceeds that threshold. The investigation is led by the Investigation Section of the Court of Instance (Sección de Instrucción; formerly the Investigating Court) of the district where the facts occurred. The National Court does not have jurisdiction, save for very specific instances of legally provided connection; the general rule is the ordinary territorial court.

The procedure goes through the usual stages: investigation, an intermediate phase with the order opening the trial and the parties' pleadings, and the trial itself. Where the person under investigation holds a status carrying aforamiento (special jurisdictional privilege), jurisdiction to investigate and try the case shifts to the higher court corresponding to that authority's statute. From the outset, the defence must monitor the correct determination of the competent body and the regularity of the proceedings, because a defect of jurisdiction or of charging may have significant consequences for the validity of what has been done.

Evidence: documentary, forensic accounting, and interceptions

These offences are proven above all through documentary evidence: administrative files, decisions, mandatory reports, public contracts, minutes, and the traceability of the decisions taken. In the misconduct in office under Article 404 (prevaricación), the key is not whether the decision was correct but whether it was arbitrary and issued in the knowledge of its injustice, which requires examining the procedure followed and the technical reports that were ignored or contradicted. The defence weighs the applicable law, the margins of discretion, and the reasoning of the act in order to separate mere administrative illegality, reviewable elsewhere, from criminal wrongdoing.

In the embezzlement of Articles 432 and following and the frauds of Articles 436 to 438, forensic accounting is decisive in reconstructing fund flows, quantifying the harm to public funds, and verifying the purpose of payments. In bribery and influence peddling, interceptions of communications and searches carry weight, and they must have been ordered by a reasoned decision respecting proportionality and necessity. The defence scrutinises the chain of custody, the regularity of each measure, and the soundness of the expert evidence, since the nullity of an essential piece of evidence may drag down the rest.

Reimbursement and reparation, plea agreement, and the line with the administrative route and prescription

In embezzlement, returning the misappropriated amount and repairing the harm before certain procedural milestones may operate as a qualified mitigating circumstance, with a meaningful effect on the sentence; the Code expressly contemplates this, tied to actual return and to cooperation. More generally, the mitigating factors of reparation of harm and of confession may be taken into account where their requirements are met. Where the facts and their classification can be accepted, a plea agreement (conformidad) allows the case to be concluded early with a penalty agreed within the legal margins, avoiding trial.

It is important to separate criminal liability from disciplinary and administrative liability: the same act may produce consequences on both planes, and the regularity of the administrative action is also disputed before the administrative-litigation jurisdiction. Prescription of the offence is governed by the maximum penalty set in the abstract: for offences whose maximum penalty does not exceed five years the period is five years, and the misconduct in office under Article 404, punishable only with special disqualification of nine to fifteen years and with no prison term, prescribes after fifteen years, since its disqualification exceeds ten years (Article 131). Corporate criminal liability is provided in this chapter only for bribery (Article 427 bis), influence peddling (Article 430) and embezzlement (Article 435.5), in addition to transnational bribery under Article 286 ter, whose corporate liability is channelled through Article 288; misconduct in office, by contrast, is committed by the natural person and does not generate liability of the legal entity.