Planning Misconduct in Office Defence Lawyers (Art. 320 CP)

The crime of planning misconduct in office 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.

Concept and Protected Interest (Art. 320 CP)

Planning misconduct in office (prevaricación urbanística) under Art. 320 CP is a specific form of misconduct in office in public office protecting land-use planning and urban legality as collective legal interests. It sanctions the authority or public official who, knowing its injustice, reports favourably, resolves or votes in favour of planning instruments, urbanisation projects or licences contrary to territorial-planning regulations, or who silences the infringement during inspections. It is a special offence: only someone holding the status of competent authority or official in the matter can be its author.

Forms (Art. 320.1 and 2 CP)

The offence covers several conducts. Art. 320.1 CP punishes whoever reports favourably on planning instruments, urbanisation, parcelling, re-parcelling, construction or building projects, or the granting of licences contrary to the rules; and whoever, during inspections, has silenced the infringement of those rules. Art. 320.2 CP sanctions the authority or official who, alone or as a member of a collegiate body, resolves or votes in favour of approving such instruments or grants knowing their injustice. The key element is knowledge of the illegality ("knowingly").

Penalties (Art. 320 CP)

The penalties combine three consequences. Art. 320 CP imposes 1 year and 6 months to 4 years' prison, a fine of 12 to 24 months and special disqualification from public employment or office and from the right to stand for election for 9 to 15 years. Disqualification is, in practice, the most relevant consequence for the official, as it removes them from public service for a prolonged period. Liability may extend to civil liability for damages arising from the unlawful action and, where appropriate, to the patrimonial liability of the Administration.

Defence Strategy

The defence rests on several axes. First, the absence of the "knowingly" element: the offence requires knowledge of the injustice, so that mere administrative illegality, reasonable interpretive disagreement or error about the applicable rules exclude intent. Second, the cover of prior favourable technical reports: when the official acts under reports of the technical or legal services, knowledge of injustice fades. Third, the distinction between mere irregularity and an unjust decision: not every procedural breach amounts to misconduct in office. Fourth, the delimitation of competence and of the defendant's effective participation in the decision.

Difference from Generic Misconduct in Office (Art. 404 CP)

Planning misconduct in office under Art. 320 CP is special law compared to the generic administrative misconduct in office of Art. 404 CP, which punishes the authority or official who issues an arbitrary decision knowing its injustice in any administrative matter (with special disqualification of 9 to 15 years, without prison). Art. 320, by bearing on land-use planning, adds the penalty of prison and fine to the disqualification. Correct classification between the two provisions is decisive for the criminal response and is a usual axis of dispute in these proceedings.