Criminal Defence for Usurpation of Public Functions

Usurpation of Public Functions: Article 402 CP

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 CP 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 CP, but rather, where applicable, the attenuated figure under Article 402 bis CP.

Claiming the Status (Art. 402 bis CP)

Article 402 bis CP 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 CP 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 CP:

• Usurpation of functions (Art. 402 CP): Concerns the exercise of acts proper to an authority or public official, while claiming official status.
• Unauthorised practice (Art. 403 CP): 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

1. 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 CP.
2. Lack of claiming of official status: Establish that the person did not arrogate to themselves the official status of the authority or official.
3. Correct classification (402 bis instead of 402): Reclassify the conduct as the attenuated figure where there was only a claiming of the status.
4. Distinction from unauthorised practice: Delimit the case from the unauthorised practice under Article 403 CP where qualified professions are involved.

Stages of the criminal proceedings and the competent court by penalty

The investigation of the offences of usurpation of public functions and of civil status (Arts. 402 and 403 of the Criminal Code), together with the instrumental forgeries that often accompany them, falls to the Investigating Court of the place of commission. At this stage the essential steps are taken: questioning of the accused with legal assistance, identification of the specific acts said to carry official character or to be performed without a qualifying title, gathering of documents and, where appropriate, the expert evidence described below. The right of defence requires intervention from the outset, pinning down precisely which conduct is charged and under which offence, because the entire later strategy depends on it.

Jurisdiction for trial is determined by the maximum abstract penalty of the offence, under Art. 14 of the Criminal Procedure Act. The offence of Art. 402 (unlawful exercise of acts proper to an authority or public official while claiming official character) carries one to three years' imprisonment; the professional intrusion of Art. 403 likewise sits below five years; and the public, improper use of an official uniform, dress or insignia under Art. 402 bis is punished only with a fine. As none exceeds the five-year threshold, the trial falls to the Criminal Court (Juzgado de lo Penal), not to the Provincial Court, unless connection with more serious offences shifts jurisdiction.

One common misconception should be dispelled: these offences do not fall to the National High Court. They would only do so in the exceptional case of an express statutory connection with offences assigned to that court. The defence must monitor the correct determination of the competent court from the investigation onward, because an erroneous handling of objective jurisdiction can ground nullities or, at the least, appeals that reorder the proceedings in favour of the accused's safeguards.

Material versus ideological falsehood: the non-punishability of the private individual

Where usurpation of official character rests on documents, the distinction between material and ideological falsehood becomes decisive. Material falsehood physically alters the document or creates a non-existent one, affecting its medium or authenticity: adding, removing or modifying elements, faking signatures or interventions, simulating a document that appears to come from someone who did not issue it. Ideological falsehood, by contrast, consists of failing to state the truth in the narration of facts: the document is genuine in its medium, but its content does not correspond to reality.

This distinction carries first-order practical consequences through the interplay of Art. 392 with Art. 390.1 of the Criminal Code. Art. 392 punishes the private individual who, in a public, official or commercial document, commits one of the falsehoods described in the first three subsections of Art. 390.1, but expressly excludes the modality of subsection 4 — failing to state the truth in the narration of facts. Doctrine explains this exclusion on the ground that the private individual, unlike a public official, is not subject to a general duty of truthfulness. As a rule, therefore, ideological falsehood committed by a private individual is not a punishable offence.

That rule admits qualifications which both defence and prosecution must know. The non-punishability of a private individual's ideological falsehood does not reach situations in which other provisions impose a specific duty of truth, as occurs in corporate, tax or insolvency contexts with their own offences. The boundary between the material and the ideological, and the precise classification of the document, are usually the real battleground of the case, and an error in legal characterisation can turn non-punishable conduct into an undue conviction, or the reverse.

Expert and documentary evidence: handwriting, documentoscopy and chain of custody

In these matters expert evidence is often decisive. Handwriting analysis examines the authorship of signatures and manuscripts to clarify whether a person actually intervened or whether their signature was imitated; documentoscopic analysis studies the documentary medium — inks, printing, stamps, alterations, erasures, later additions — to detect material manipulation. Where the dispute concerns the claiming of official character through cards, accreditations, uniforms or insignia, the technical examination of the authenticity of those items may decide the classification between Art. 402 and Art. 402 bis.

The reliability of this evidence depends on its correct practice and on the integrity of the chain of custody. The defence must verify how each document or object was collected, identified, sealed and preserved, who had access to it and whether there was any break in its traceability. Any defect in the chain of custody weakens the evidential value of the material and may ground its exclusion or, at the least, sow reasonable doubt about its authenticity and indemnity.

Alongside the official report, party-appointed expert evidence may be proposed and a comparison with undisputed handwriting samples requested, and the report may be challenged at trial by cross-examining the expert. Documentary evidence is completed by producing the originals — not mere copies — wherever possible, and by establishing the source and lawfulness of how they were obtained. A poorly conducted report or a document of irregular provenance are cracks that a diligent defence must explore.

Boundary with fraud, the subjective element and routes of plea agreement

Usurpation of functions often appears in concurrence with, or at the boundary of, other offences. Where claiming official character or a non-existent title serves as the means to obtain a transfer of assets through deceit, the fraud offence of Art. 248 may come into play, and documentary forgery may operate as the instrument of the fraud, producing a concurrence of offences whose correct characterisation affects the sentence. Distinguishing whether the conduct exhausts its wrongfulness in the usurpation, or whether it extends to harm to another's property, is key to fixing the reproach and avoiding double assessment of the same act.

On the subjective side, these offences require intent: knowledge that one is performing acts proper to an authority or official without being authorised, that one is acting without the required title, or that one is improperly using the uniform or insignia. Negligent conduct or a reasonable mistaken belief about one's own authorisation does not suffice; a mistake about an element of the offence may exclude intent. The defence can direct its work to neutralising the subjective element, establishing the absence of any purpose to feign official character or the existence of a mistake.

Limitation is governed by Art. 131 of the Criminal Code according to the maximum penalty: offences whose penalty does not exceed five years become time-barred after five years, there being no longer an intermediate three-year band. The reckoning from the date of commission and the grounds for interruption should be checked. Finally, where the facts are established, a plea agreement (conformidad) and repair of the harm can lead to a more favourable criminal outcome: a well-negotiated agreement, together with the mitigating factor of reparation, can substantially reduce the penalty ultimately imposed.