Article 424 of the Criminal Code
TÍTULO XIX — Delitos contra la Administración pública
Previous versions
History of reforms to this article, from oldest to most recent, as recorded in the BOE’s consolidated legislation.
Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal.
In force from 24/05/1996 to 22/12/2010
In force from 23/12/2010 to 30/06/2015
Explanation and defense
What Article 424 of the Criminal Code punishes
Article 424 defines active bribery, that is, the conduct of a private individual who bribes an authority, public official or person exercising a public function. It punishes anyone who offers or hands over a gift or reward of any kind so that the official performs an act contrary to their duties, fails to perform or delays one they should carry out, or simply in consideration of their office or role. It also punishes, with the same penalty as the corrupted official, a private individual who hands over the gift in response to a prior request from the official themselves, that is, where it is the official who initiates the request for the bribe.
The provision includes an additional legal consequence of particular importance for businesses: where the bribery relates to a public procurement, subsidy or auction procedure run by public authorities, the private individual —and, where applicable, the company or organisation they represent— is disqualified from obtaining public subsidies or aid, from contracting with the public sector, and from enjoying tax or social-security benefits or incentives for a period of five to ten years, a sanction that in practice can be more burdensome than the prison sentence itself.
Penalty
The penalty is the same prison sentence and fine applicable to the corrupted authority or official under Articles 419 to 423, whether the private individual offers the bribe on their own initiative or simply responds to the official's request. Where the bribery relates to public procurement, subsidies or auctions, the special disqualification of five to ten years described above is added.
Common scenarios
This offence typically arises in companies handing over commissions or gifts of significant value to officials responsible for awarding public contracts, planning permits, subsidies or administrative authorisations, in order to gain favourable treatment over competitors; in individuals offering money to a police officer to avoid a fine or the opening of proceedings; and in business owners bribing tax, labour or health inspectors to avoid or soften the outcome of an inspection.
Defense strategy
The defense should precisely distinguish between proper active bribery —initiated by the individual— and the scenario where the individual merely responds to a request from the official, which may be relevant when assessing the exemption from punishment available to someone who reports the matter before proceedings are opened, in cases of an occasional gift requested by the official. It is also essential to establish whether the payment was genuinely intended to secure an act contrary to the official's duties, as opposed to minor social or business courtesies lacking that corrupting purpose. Given the significant impact of the ancillary penalty disqualifying a party from contracting with the public sector, individual responsibility within complex corporate structures should also be carefully assessed, to prevent the sanction from reaching people uninvolved in the decision to bribe.
Quick reference
Orientative data computed from the highest prison term mentioned in this article. Aggravated or mitigated subtypes, non-custodial penalties and concurrence rules may alter the outcome in each specific case.