Usurpation of Public Functions
Criminal defence in the usurpation of public functions and the improper claiming of the status of public official or professional (Arts. 402 and 402 bis CC).
listTable of Contents
Usurpation of Public Functions: Article 402 CC
Usurpation of public functions is governed by Article 402 of the Criminal Code, within Title XVIII, alongside the document forgery offences. It punishes whoever unlawfully exercises acts proper to an authority or public official while claiming official status, with a penalty of imprisonment of 1 to 3 years. At Alonso Sala, as criminal defence lawyers, we defend those investigated for this conduct and delimit its boundaries with rigour.
The protected legal interest is the proper functioning of the public administration and the public's confidence that whoever acts as an authority or official genuinely is one. The key to the offence lies in the actual exercise of acts proper to the office, not in mere appearance.
Actual Exercise of Official Acts
Article 402 CC requires that the person genuinely exercises acts proper to an authority or public official, arrogating to themselves their official character. It is not enough to appear to hold the status or to dress as such: it is necessary to carry out actions corresponding to the usurped public function (carrying out an identification, making an arrest, issuing a decision, performing an administrative act).
This requirement is decisive for the defence: if the accused merely appeared to hold a status without going so far as to exercise acts proper to the office, the conduct does not fit the offence under Article 402 CC, but rather, where applicable, the attenuated figure under Article 402 bis CC.
Claiming the Status (Art. 402 bis CC)
Article 402 bis CC penalises less serious conduct: that of whoever, without being authorised, publicly claims the status of a professional protected by an academic or official qualification, or the status of authority or public official, making use of a uniform, dress, insignia or official badge, without going so far as to exercise acts proper to the office. The penalty provided is a fine.
The essential difference from Article 402 CC is that under 402 bis the public claiming of the status suffices (for example, displaying a uniform or insignia), whereas the main offence requires the actual exercise of acts. Distinguishing between the two is key to determining the applicable penalty.
Distinction from Unauthorised Practice
Usurpation of public functions must be distinguished from the unauthorised practice of a profession under Article 403 CC:
- Usurpation of functions (Art. 402 CC): Concerns the exercise of acts proper to an authority or public official, while claiming official status.
- Unauthorised practice (Art. 403 CC): Consists of practising a qualified profession (medicine, law, architecture) without holding the corresponding qualification.
Although both figures share the idea of acting without legitimacy, they protect different spheres: the public function in one case, confidence in qualified professions in the other.
Defence Strategy
- Absence of actual exercise: Demonstrate that the accused did not go so far as to exercise acts proper to the office, which excludes Article 402 CC.
- Lack of claiming of official status: Establish that the person did not arrogate to themselves the official status of the authority or official.
- Correct classification (402 bis instead of 402): Reclassify the conduct as the attenuated figure where there was only a claiming of the status.
- Distinction from unauthorised practice: Delimit the case from the unauthorised practice under Article 403 CC where qualified professions are involved.
Penalty Chart
| Type / Scenario | Criminal Penalty |
|---|---|
| Usurpation of functions (Art. 402 CC) | Imprisonment of 1 to 3 years for whoever unlawfully exercises acts proper to an authority or public official while claiming official status. |
| Claiming the status (Art. 402 bis CC) | Penalty of a fine for whoever publicly claims the status of public official or professional (uniform, insignia) without exercising acts. |
| Unauthorised practice (Art. 403 CC) | A distinct figure that punishes the practice of a qualified profession without holding the corresponding qualification. |
* Penalties shown are indicative. The actual penalty depends on case circumstances, applicable mitigating and aggravating factors.
Our Defense Strategy
Lack of Acts Proper to the Office
Establish that the accused did not carry out actions reserved to the authority or official, excluding the actual exercise required by the offence.
Reclassification under Art. 402 bis
Where there was only a public claiming of the status by means of a uniform or insignia, place the conduct within the attenuated figure of a fine.
Demarcation from Unauthorised Practice
Distinguish usurpation of public functions from the unauthorised practice under Article 403 CC according to the sphere affected.
Document Forgery, False Testimony & Digital Crimes in Spain
Document forgery (Art. 390-399 CP), false testimony (Art. 458-462 CP), and cybercrime (Art. 197-197 bis CP) are legal areas where technical evidence — forensic document analysis, digital trails, and expert testimony — dominates the trial. As criminal defense lawyers specializing in these offenses, we counter each piece of forensic evidence with our own expert analysis.
Penalty Table: Documentary and Informational Offenses
| Offense | Article | Penalty |
|---|---|---|
| Public Document Forgery | Art. 390 | 3 – 6 years + disqualification |
| Commercial Document Forgery | Art. 392 | 6 months – 3 years |
| Private Document Forgery | Art. 395 | 6 months – 2 years |
| Use of False Document | Art. 400 | Same as the forgery committed |
| False Testimony (Criminal) | Art. 458 | 1 – 3 years + fine |
| False Accusation | Art. 456 | 6 months – 2 years |
| Computer Intrusion (Hacking) | Art. 197.3 | 6 months – 2 years |
Why Choose Us?
Need a criminal defense lawyer for this type of offense? Here's how we work:
gavelElements of the Crime
- check_circleConduct:Unlawfully exercising acts proper to an authority or public official while claiming official status (Art. 402 CC).
- check_circleActual exercise:The main offence requires genuinely carrying out acts of the office. Mere appearance is reclassified, where applicable, under Article 402 bis CC.
- check_circleClaiming of official status:It is essential that the person arrogates to themselves the official character of the authority or official whose functions they usurp.
gavelPenal Consequences
Imprisonment of 1 to 3 years for whoever unlawfully exercises acts proper to an authority or public official while claiming official status.
Penalty of a fine for whoever publicly claims the status of public official or professional (uniform, insignia) without exercising acts.
A distinct figure that punishes the practice of a qualified profession without holding the corresponding qualification.
FAQs
What is usurpation of public functions?expand_more
Is it enough to pose as a police officer to commit the offence?expand_more
What does Article 402 bis CC punish?expand_more
What is the penalty for usurpation of public functions?expand_more
What is the difference from unauthorised practice of a profession?expand_more
Is wearing a uniform without permission an offence?expand_more
Is it necessary for someone to be deceived?expand_more
What defence is available against this charge?expand_more
Do you need specialised legal assistance?
The judicial system is complex. We have the criminal-law specialisation and technical resources required to take on the defence.