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Criminal Lawyers in Urban Prevarication

Defense of officials and authorities for granting illegal licenses Criminal Lawyers Spain | Alonso Sala

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The crime of urban prevarication punishes the authority or official who, knowing its injustice, reports favorably or grants licenses contrary to land use planning regulations. We defend the legality of your administrative actions.

Environmental and Urban Planning Crimes in Spain: Defence Guide

Environmental crimes (Arts. 325-340 CP) and urban planning crimes (Arts. 319-320 CP) are increasingly prosecuted in Spain, especially following EU environmental directives. Directors of companies, urban planners, and public officials can be held personally liable for environmental harm caused by their organisations.

Penalty Table: Environmental and Urban Planning Crimes

OffenceArticlePenalty
Pollution causing serious environmental riskArt. 3256 months – 2 years + fine
Serious pollution (Art. 326 aggravated)Art. 3262 – 5 years
Illegal waste dumpingArt. 3286 months – 2 years + fine
Protected species crimesArt. 3346 months – 2 years
Illegal construction on non-buildable landArt. 319.21 – 3 years + demolition order
Illegal construction on specially protected landArt. 319.11 – 4 years + demolition order
Official granting illegal planning permissionArt. 3201 – 3 years + disqualification
Forest fire (arson)Art. 351-3521 – 5 years

Key Defence Strategies

Challenging the 'Serious Risk' Threshold

Art. 325 requires a serious risk to natural equilibrium or human health. If the environmental impact was minor, temporary or fully remediated, the prosecution must prove the risk threshold was met. Independent expert reports are decisive.

Regulatory Compliance Defence

Environmental crimes require acting contrary to administrative regulations. Demonstrating that the activity was authorised, had all required permits, and complied with applicable administrative restrictions is a complete defence.

Urban Planning: Land Classification Challenge

For Art. 319, whether the land is 'non-buildable' or 'specially protected' is often disputed. Urban planning law is complex and classifications change. Challenge the applicable land classification at the time of construction.

Individual Liability of Corporate Managers

Directors can be prosecuted for acts of the company if they knew about and failed to prevent the environmental harm. The defence challenges: (1) their actual knowledge, (2) their factual ability to prevent it, and (3) whether they relied on specialist authorisations.

quiz

FAQ: Urban Prevarication

What is planning prevarication?expand_more
The offence committed by a public official who knowingly issues a favourable report on, votes in favour of or grants a planning licence contrary to the planning rules. Art. 320 CP.
What penalty does planning prevarication carry?expand_more
One year and 6 months to 4 years of imprisonment and a fine of 12 to 24 months for the authority or official. For a technical officer who issues a favourable report: the same penalty plus disqualification for 1 to 4 years.
Who can commit planning prevarication?expand_more
Mayors, councillors, municipal technical officers (architects, engineers), municipal secretaries and comptrollers who take part in granting licences or issuing planning reports.
How does it differ from generic administrative prevarication?expand_more
The planning offence (Art. 320 CP) is a specific type with harsher penalties than the generic one (Art. 404 CP). It applies exclusively to decisions on planning matters.
Is voting in favour of an illegal urban plan prevarication?expand_more
If the councillor knows the plan breaches planning law and knowingly votes for it, they may commit planning prevarication. Case law requires knowledge of the illegality.
Is the favourable technical report the prior step?expand_more
Yes. A technical officer who issues a favourable report on a project they know to be illegal facilitates the granting of the licence. That conduct is expressly punished in Art. 320 CP.
Is illegally rezoning land prevarication?expand_more
If the rezoning is carried out in the knowledge that it breaches higher-ranking planning rules (the general plan, land legislation), it may constitute planning prevarication.
Is a failure to act also prevarication?expand_more
Yes. Art. 320.1 CP expressly punishes the official who 'in the course of inspections has remained silent about' the planning infringement. Deliberately failing to act falls within the offence.
Can private developers be accomplices?expand_more
A developer who bribes or pressures the official to obtain the illegal licence may be an instigator of prevarication. If they also pay, bribery concurs.
How is planning prevarication investigated?expand_more
Through audits of planning files, comparison of the licence against the planning rules in force, analysis of omitted technical reports and tracing of links between developer and official.
Does planning prevarication become time-barred?expand_more
It becomes time-barred after 5 years. Time runs from the date of the illegal decision (granting of the licence, approval of the plan).
Is a technical error by the official prevarication?expand_more
No. Prevarication requires intent: knowing the decision is illegal and issuing it anyway. A technical error or a legitimate difference of interpretation does not amount to the offence.
Can municipal plenary sessions commit collective prevarication?expand_more
Yes. If a municipal plenary approves a planning amendment that everyone knows to be illegal, each councillor who votes in favour may be individually liable for prevarication.
Is the municipal secretary who fails to flag the illegality liable?expand_more
If they fail to issue the mandatory legality report, or issue a favourable one knowing of the illegality, they may commit prevarication under Art. 320 CP as a reporting officer.
Is planning prevarication prosecuted ex officio?expand_more
Yes. Unlike insults or private offences, prevarication is prosecuted ex officio by the Public Prosecutor. Any citizen may report it.
How does it relate to planning corruption?expand_more
Planning prevarication is frequently the vehicle of municipal corruption: the official prevaricates in exchange for bribes, creating a concurrence of prevarication and bribery.
Do the courts annul licences granted through prevarication?expand_more
Yes. In addition to the criminal conviction, the judgment may declare the licence void, which can mean the demolition of whatever was built under the illegal licence.
What happens to buyers of homes built under a prevaricated licence?expand_more
Good-faith buyers can claim compensation from the developer and the town council. If demolition is ordered, they are entitled to be compensated by those responsible.
Can planning agreements amount to prevarication?expand_more
If a planning agreement grants the developer illegal advantages in exchange for benefits to the municipality, and is signed in the knowledge of its illegality, it may constitute prevarication.
Is failing to execute an ordered demolition prevarication?expand_more
Yes. An official who deliberately fails to carry out a judicial or administrative demolition order may commit prevarication by omission or judicial disobedience.
Does the Court of Audit intervene in planning prevarication?expand_more
The Court of Audit (Tribunal de Cuentas) may intervene if the prevarication caused financial harm to public assets (rezonings that benefited the developer to the detriment of the public interest).
Do I need a criminal lawyer specialising in planning law?expand_more
Yes. Defence in planning prevarication cases demands dual expertise: criminal law and planning law. Knowledge of the planning regulations is essential for an effective technical defence.

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