Article 402 of the Criminal Code

What Article 402 of the Criminal Code punishes

Article 402 defines the offence of usurping public functions, punishing anyone who unlawfully carries out acts belonging to an authority or public official, claiming an official status they do not hold. It sits within the chapter on personal forgeries, alongside usurping someone's civil status (Article 401) and unauthorised practice of a profession (Article 403), and protects public trust in the proper exercise of public duties and in identifying who genuinely holds authority.

The offence requires two elements: first, the actual performance of acts belonging to an authority or official —simply wearing a uniform or showing a badge is not enough on its own—, and second, an express or implicit claim to that official status before others. The offender need not obtain a financial benefit or cause financial harm: the protected legal interest is public trust in institutions, not the victim's property.

Penalty

The penalty is one to three years in prison.

Common scenarios

This offence typically applies to someone who poses as a police officer, Civil Guard officer, tax inspector, municipal enforcement officer or court official to gain entry to a home, obtain information, intimidate someone else, or more easily commit another crime; to someone who uses fake or irregularly obtained badges, ID cards or uniforms to simulate an official status they do not have; and to someone who, exploiting that appearance of authority, carries out acts such as identity checks, searches or seizures that only lawfully authorised officials may perform. This offence often occurs alongside fraud, robbery or trespass into a home, where usurping public functions is the means used to deceive the victim and facilitate the main offence. It also appears in scams targeting elderly victims, where the offender phones or visits posing as a bank inspector, a utility-company technician or a police officer investigating counterfeit money, in order to be let into the home or to have the victim hand over cash or valuables.

Defense strategy

The defense should check whether "acts belonging to" an authority or official were actually carried out —rather than a mere verbal claim with no practical consequences—, since the offence requires actual conduct, not empty bravado without real effect. It is also relevant to examine whether the claim to official status was express and unambiguous, or whether it could instead be a misunderstanding about the person's real status. Where this offence coincides with a more serious one —fraud, trespass, robbery—, it is worth analysing the relationship between the offences, since the correct legal classification can prevent a double penalty for the same facts.