“Of the malfeasance of public servants and other unjust behaviors” is the title of the Chapter I, of the Title XIX, which regulates the crimes against the public administration, of the Book II, of the Spanish Penal Code (CP).
This chapter is made up of three articles: the article 404, punishes the authority or public servant who, knowing its injustice, issues an arbitrary resolution in an administrative matter; the article 405, also punishes the authority or public servant, though in this case, who appoints any person without meeting the legal requirements established for this; and the article 406, punishes the person who accepts this appointment.
It is plain that, these three articles guarantee the proper functioning of the public administration, punishing those cases in which the guarantees established by the law are corrupted to the benefit of one or various persons, and to the detriment of the rest citizens. I like this sentence a lot because, without coming from the Spanish Supreme Court, explains very well the crime of malfeasance, thus, I am sure that we are going to use it more times throughout this document, pay attention to what the sentence 547/2024 of the Spanish Provincial Court of Sevilla says regarding the legal good protected by these precepts: “Like the Spanish Supreme Court´s sentences 441/2022, of 4 May, and 507/2020, of 14 October, indicate, it has as protected legal good “the proper performance of the public function according to the constitutional criteria which guide its actions”, criteria which we identify with the following:
(i) To serve with priority the general interests.
(ii) The subjection to the law.
(iii) The absolute objectivity and impartiality in the fulfilment of these ends according to the article 103 CE (Spanish Supreme Court´s sentence 18/2014, of 23 January).”
Indeed, the Spanish Constitution has two essential articles which subject the public administration to the law, the article 9.1, which states that: “The citizens and the public powers are subject to the Constitution and the rest of the legal order”.
And the article 103 states:
“Article 103.
1. The Public Administration serves with objectivity the general interests and acts according to the principles of efficacy, hierarchy, decentralization and coordination, with absolute subjection to the law.
2. The organs of the Administration of the State are created, governed and coordinated according to the law.
3. The law shall regulate the statute of the public servants, the access to the public function according to the principles of merit and capacity, the peculiarities of exercising their right to unionization, the system of incompatibilities and the guarantees of impartiality in the exercise of their functions.”
Let us now comment, the articles which form this Chapter I.
– Article 404:
The article 404 states:
“Article 404:
The authority or public servant who, knowing its injustice, issues an arbitrary resolution in an administrative matter shall be punished with the punishment of special disqualification from public employment or office and from exercising the right to stand as a candidate for a period of nine to fifteen years.”
When we start reading the article 404, we soon realize that it is a special own crime, because only an authority or public servant can be the author of this crime. For the concept of authority or public servant, we attend to what the article 24 CP says. Although this explanation from the sentence 547/2024 of the Spanish Provincial Court of Sevilla is also interesting: “And with regard to the access to the performance of these public functions, in this scenario does not matter either the selection requirements for joining, or the category (even though it is modest), or the retribution system, or the legal or regulatory statute, or the stability or temporality (Spanish Supreme Court´s sentences of 4 December 2001 and 11 October 1993), being enough an employment contract or even an agreement between the interested person and the person invested with faculties for his appointment (Spanish Supreme Court´s sentence of 27 January 2003). Doctrine reiterated by the Spanish Supreme Court´s sentence 166/2014: “In the same sense we said in the sentence number 83/2017, of 14 February that “This broad interpretation of the concept of public servant has been the applied by the Jurisprudence of the Supreme Court, thus surpassing the defining limits of the administrative concept of public servant, insofar as it mainly attends to the function carried out, even including the workers hired through an employment contract for performing functions within a public organization”.
In spite of being a special own crime in which the authors must be authority or public servant, there may be other persons participating in the crime but as necessary cooperators or instigators (art. 28 CP), or even as accomplices (art. 29 CP), because for them the condition of authority or public servant is not required.
We continue reading, and we find a subjective element of the crime, the precept expressly says that the behavior has to be carried out “knowing its injustice”. This requisite only can be fulfilled through direct malice, thereby, the jurisprudence has understood that this crime cannot be committed through eventual malice, which would concur when the active subject is not sure altogether of the illicitness of his behavior, or in other words, when he knows that there exist possibilities of causing the forbidden result by the norm with his behavior, but despite this knowledge, he decides to act. The sentence 547/2024 of the Provincial Court of Sevilla says: “The expression “knowing”, according to the Spanish Supreme Court´s sentences of 30 May 2003, 22 September 2003, 25 May 2004, 1 July 2009, not only excludes the negligent commission, but also the commission of the crime by eventual malice”.
Let us now talk about the forbidden behavior. The precept punishes to issue an arbitrary resolution in an administrative matter.
The Dictionary of the Spanish Royal Academy of the Language says that, arbitrary is an adjective which means: “Subject to the free will or whim rather than the law or reason.” Therefore, the active subject must be driven by personal motives, his decision cannot be backed by a norm. Or like the sentence 547/2024 of the Provincial Court of Seville says: “This implies, without doubt, its contradiction with the law, which may be manifested, according to reiterated jurisprudence, either for issuing it without the legally required competence, or for not having respected the essential procedural norms, or for contravening current legislation or for implying a deviation of power.”
This also means that, we are dealing with a blanket penal norm, because we are going to need to make use of the administrative legislation, in order to know how this has been infringed.
Besides, the arbitrary resolution must to be issued in an administrative matter. Pay attention to this excerpt from the Spanish Supreme Court resolution of 21 March 2024 ( ROJ: ATS 3882/2024 – ECLI:ES:TS:2024:3882A): “Such resolution may be express or tacit, written, oral or even by gestures; being feasible also the resolution by omission (Spanish Supreme Court´s sentences 225/2015, of 22 April and 1382/2002, of 17 July) regardless the procedural stage, it may be a procedural or preliminary act, or an executive act concerning the main substance of the matter, provided that it entails a declaration of intent with a decisive content which affects the rights of the individuals or the community as a whole.
c) An “administrative matter” is not only the matters subject to administrative law, but “all the acts and decisions carried out by authorities or public servants performing their functions excluding the legislative and jurisdictional acts”.
This sentence ends considering that:
“This Chamber has reiterated that for the purposes of the crime of administrative malfeasance, “by resolution we have to understand any administrative act which entails a declaration of intent of decisive character, which affects to the rights of the individuals or the community as a whole, either express or tacit, written or oral, excluding the political or governing acts as well as the denominated procedural acts which order the procedure to make feasible the definitive resolution, like reports, inquiries, resolutions…” (Spanish Supreme Court´s sentences 597/2014, of 30 July, 787/2013, of 23 October and 311/2019, of 14 June, among others)”.
Then, an administrative resolution is, any act or decision carried out by authority or public servant of decisive content, which affects the individuals or the collectivity as a whole.
As consequence of the wording of the precept, it seems that the crime of administrative malfeasance can be only committed when the active subject performs an action. But this is not the interpretation which the jurisprudence has made of the precept, since it has admitted its commission by omission. The resolution 1166/2024 of the Provincial Court of Pontevedra says: “The Supreme Court, in its sentence of 17 July 2002, indicates that, “in relation to the possibility of malfeasance by omission (…) it is evident that the behavior described by the penal precept is performed by “…the authority…who…issues an arbitrary resolution…” in a positive way, in other words, issuing the resolution, as well as not responding to petitions which are rightfully presented to him and which must be responded by a resolution, for this is also committed by the refusal to respond.” Likewise, the Spanish Supreme Court´s sentence of 16 April 2002 indicates that “for the purposes of the article 404 of the Penal Code, like what happened with the article 358 of the previous Code, by administrative resolution is understood any act of this nature which implies a declaration of intention of decisive content which affect the rights of the individuals, either express or tacit, oral or written (…). In those special cases in which the authority or public servant is obliged to issue a resolution, the omission has equivalent effects of a refusal (commission by omission) (sentences of 27 December 1995 and 12 February 1999) (…)”.
Another matter regarding the forbidden behavior, is the classification of the crime as a crime of result and not of mere activity, something that hampers the punishment of the attempted crime. The sentence 547/2024 of the Provincial Court of Sevilla says: “the crime of malfeasance, from the point of view of the causality is a crime of result, not of mere activity, but in which the activity coincides with the result, the issuance of the resolution, hence not carrying out a result distant in space and time, something that makes difficult to imagine an attempted crime. The Supreme Court´s sentence, of 8 May 2014 reminds that, “it is plain that once the administrative resolution is issued the legal good is harmed, since the performance of the public function is harmed according to the principles of legality and the rest of the principles demandable by the Constitution in an State governed by the law without being necessary regarding the wording of the precept, the materialization of the unjust resolution in concrete acts which determine a tangible harm for a determined citizen or an specific ambit in the Administration. Hence, it is not easy to find in the practice nor in the jurisprudence concrete cases of attempted crime, which only may occur in extraordinary cases in which the forbidden behavior of issuing the resolution is fragmented in its perpetration.”
The problem is that, the administrative jurisdiction is also in charge of punishing those administrative acts which are contrary to the law, then, what is the boundary between the penal jurisdiction and the administrative jurisdiction? In general terms, it has been said that the penal jurisdiction is always the last ratio, the last option which a State governed by the law has to punish a behavior. It has been said too that, the principle of minimal intervention always shapes the application of the penal law, according to this principle, only the gravest behaviors may be punish by the penal jurisdiction, avoiding its extensive application. However, this is not clear at all, it is too diffuse, it is like trying to explain something, with words that mean nothing. I like to be more precise. Do you remember that one of the subjective elements of the crime is that the active subject must perform the behavior “knowing its injustice”? the existence of this subjective element is what determines that an administrative act must be subject to the penal jurisdiction. Then, the most important will be to prove that the active subject knew perfectly well the injustice and arbitrariness of his decision. The sentence 547/2024 of the Provincial Court of Sevilla says: “The arbitrariness of the resolution, the execution of an act knowing its injustice, usually has the end of benefitting or harming someone, hence the proving of the subjective element requires to confirm the concurrence of evidences of some kind of interest which explains the spurious character of the resolution issued. But the unjustified allegation of not knowing the unjust and arbitrary character of the resolution is not enough for excluding the subjective element. This subjective element has to be concreted with caution. Like Supreme Court´s sentence 797/2015, of 24 November, reminds us, the Authorities and public servants of high rank cannot know all the details of the documents which are presented to them to be signed, hence they usually have to rely on the technical reports which support them, and the same can be said regarding the omissive behaviors, in which they do not necessarily have to know the obligatoriness of issuing a resolution. This is why, it is convenient to confirm the concurrence of evidences which underscore some spurious interest proving that the authority of public servant acted with full knowledge of issuing a resolution contrary to the legal order and with it causing a result materially unjust, in other words, he does want the unjust result and prioritizes his intention rather than any other reasoning or consideration.”
We end this article 404, with the elements that are necessary for appreciating a crime of administrative malfeasance. The sentence 547/2024 of the Provincial Court of Sevilla says: “the Supreme Court´s sentence 808/2023, of 26 October, mentions the following:
A reiterated Jurisprudence of this Chamber (Supreme Court´s sentences 1021/2013, of 26 November and 743/2013, of 11 October, among others) has pointed out that, for appreciating a crime of malfeasance is necessary:
1º) a resolution issued by authority or public servant in administrative matter; 2º) objectively it must be contrary to the law, in other words, illegal; 3º) that the contradiction with the law or illegality, which can be manifested in the absolute lack of competence, the omission of the essential elements of the procedure or in the substantial content of the resolution, is of such entity which cannot be explain with a minimal reasonable technical-legal argumentation; 4º) that it causes a materially unjust result; 5º) that the resolution is issued with the aim of making effective the private intention of the authority or public servant and with the knowledge of acting against the law.”
– Article 405:
The article 405, is a version of the crime of administrative malfeasance, for the cases in which the authority or public servant proposes, appoints or grants possession for performing determined public office to a person who does not fulfil the legal requisites for this. The article 405 says:
“Article 405.
The authority or public servant who, exercising his competences and knowing its illegality, proposes, appoints or grants possession for performing determined public office to any person without meeting the legal requirements for this, shall be punished with the punishments of fine for a period of three to eight months and suspension of public employment or office for a period of one to three years.”
Like before, let us explain it while we advance reading it. At the beginning we realize that it is a special own crime, since the authors only can be public servants or authorities, according to the definition of them given by the article 24 CP. However, we have to take into account too, what we said before, there may be other participants in the crime, as either necessary cooperators, instigators or accomplices, who do not need to be authority or public servant.
The next thing that the article 405 says is that, the authority or public servant must execute the forbidden behavior exercising his competence and knowing its illegality. That the authority or public servant must exercise its competence means that, the act must belong to the competences which he has attributed as public servant. That the forbidden behavior must be executed knowing that it is unjust, adds a now subjective element to the generic malice, which allows us to reject its commission by eventual malice, since the precept requires the full knowledge that the act is illegal, and not only to be conscious of the possibility of committing an illegality, like in the eventual malice.
The forbidden behavior consists in, proposing, appointing or granting possession for exercising determined public employment or office to a person who does not meet the legal requirements for this. We already know the definition of public servant, it was given in the article 404, the question now is, whether that definition is also applicable to the term of public employment or office. Leaving aside the jurisprudence and the article 24 CP, we would say that a public servant and a public office are not the same, the former are career employees who have obtained their position through competitive examinations or contests, and the latter, have positions of responsibility within the administration, and in many cases their appointments are of temporary and political character. But we have already seen that, this is not the definition given by the jurisprudence to the term public servant, having understood that a public servant is any person who lawfully performs a public function. Therefore, this broad interpretation of what we can understand as a public servant must include also a public officer.
Like before in the article 404, we must understand that it is a crime of result and not of mere activity, for the crime is consummated with the appointment of the person who does not meet the legal requirements for being appointed, and this appointment produces the result of harming the legal good protected by the norm.
This precept is also an example of a blanket penal norm, since we have to use other norms for knowing the legal requirements which a person must fulfil for being a public officer.
Another question which may arise is whether the behavior described by the precept may be committed by omission. In my opinion, we must reject this possibility, for the non-appointment of a citizen who fulfils the legal requirements for being appointed cannot be considered a crime.
– Article 406:
The article 406, punishes the person who accepts the proposal, appointment or granting of possession without meeting the legal requirements necessaries for this. The article 406 says:
“Article 406.
The same punishment of fine shall be imposed on the person who accepts the proposal, appointment or granting of possession mentioned in the previous article, knowing that he lacks the necessary legal requirements.”
Pay attention to the fact that, unlike the preceding articles, in the article 406 we find a common crime, for it can be committed by anyone.
The forbidden behavior consists in accepting the proposal, appointment or granting of possession of the authority or public servant with authority to make them and knowing that they are unjust.
Again, this is a crime of result, since it requires a harm in the legal good protected by the norm for the consummation of the crime. Though, like before, the caused harm and the action are simultaneous, what hampers the appreciation of the attempted crime.
This is also a blanket penal norm, for we have to attend to other norms for knowing the requisites which have to be fulfilled by the appointed person.
We have to underscore that the precept requires that the forbidden behavior has to be executed knowing that you are accepting a public office without having the necessary requisites. What determines, the rejection of the negligence and eventual malice as possible subjective elements.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com