“Of the abandoning of duty and of the omission of the duty to prosecute crimes”, is the title of the Chapter II, of the Title XIX, about 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 407, which punishes the authority or public servant who abandons his post for not prosecuting a crime; the article 408, which punishes the authority or public servant who does not prosecute a crime of which he has knowledge, and; the article 409, which punishes the authority or public servant who promotes, leads or organizes the collective abandonment and manifestly illegal of a public service.
All of them have in common the protected legal good, which according to the doctrine is the correct exercise of the public function. 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 II.
– Article 407:
Let us start reading the article 407:
“Article 407:
1. The authority or public servant who abandons his post with the purpose of not impeding or prosecuting any of the crimes comprehended in the Titles XXI, XXII, XXIII and XXIV shall be punished with the punishment of imprisonment for a period of one to four years and absolute disqualification from public employment or office for a period of six to ten years. If they abandon their post for not impeding or persecuting any other crime, they shall be punished with the punishment of special disqualification from public employment or office for a period of one to three years.
2. The same punishments shall be imposed, respectively, when the abandonment has as object not to execute the punishments corresponding to these crimes imposed by the competent judicial authority.”
Art. 407.1:
When we start reading the first point of the article 407, we realize that this is a special crime, since it can only be committed by those who are authorities or public servants. In order to know what we must understand by authority or public servant, we must refer to what is stated in the article 24 CP.
In any case, the article 407 is not referring to any authority or public servant, but only to those who have among their legal duties the promotion and prosecution of the crimes and of the persons responsible. According to the sentence 287/2024 of the Spanish Provincial Court of Ciudad Real: “The concept of public servant comprehends, not only those to which the articles 282 and 283 of the Spanish Criminal Procedural Law refer (Judicial Police), but, indistinctly to all public servants who are obliged to promote the prosecution and punishment of illicit facts, in whose case, both are included the judicial and administrative public servants.”
Although, the author of the facts can only be an authority or public servant, we cannot reject other participants in the crime, either as necessary cooperators or as instigators (art. 28 CP), or even as accomplices (art. 29 CP), because the condition of authority or public servant is not required of them.
The forbidden behavior consists in abandoning his post with purpose of not impeding or prosecuting any of the crimes comprehended in the Titles XXI, XXII, XXIII and XXIV of the CP, or any other crime. The difference between both cases is important, because the former is punished with imprisonment while the latter only with special disqualification.
The abandonment of post has to be understood in a broad sense, for example, such concept should include the policeman or policemen who determined night do not watch the coast for allowing the drug trafficking, or those who do not watch the frontier for allowing the human trafficking.
It is a crime of cut result or tendency, for aside the carrying out of the behavior described by the precept and the generic malice, it is required that the active subject act with intention, and the consummation of the crime will not depend on its materialization. In this case, there exists an additional subjective element to the generic malice, the active subject must act with the purpose of not impeding or prosecuting a crime.
Focusing on the subjective elements of the crime, it is evident that we are dealing with a malicious crime. The question now is to determine whether it can be committed through eventual malice, and in my opinion, we should reject this possibility, for the purpose of not impeding or prosecuting a crime determines its commission only through direct malice, where the intention of the active subject is always clear.
Art. 407.2:
The second point of the article 407 punishes a slightly modified version of the crime established in its first point.
Again, the active subjects must be authorities or public servants, therefore, we are dealing again with a special crime. Besides, these authorities or public servants must have among their duties to execute the punishments corresponding to the crimes of the first point which have been imposed by the competent authority, for the forbidden behavior consists in abandoning their post for not executing such punishments.
Again, this is a crime of cut result or tendency, for the abandonment of post by the authority or public servant has to be carried out with the intention of not executing a punishment imposed by the competent judicial authority. In other words, there is a subjective element additional to the generic malice, an intention in the active subject, on which the consummation of the crime does not depend.
Like before, this is a malicious crime, from which we should reject its commission by eventual malice, for the intention accompanying the generic malice excludes any doubts regarding the intention of the active subject when committing the crime.
– Article 408:
In the article 408, we find the crime of omission of the duty of prosecuting determined crimes. The article 408 states:
“Article 408.
The authority or public servant who, failing in the obligation of his position, intentionally does not promote the prosecution of the crimes of which they have knowledge or the persons responsible for them, shall incur the punishment of special disqualification from public employment or office for a period of six months to two years.”
Beginning to read the article 408, we realize that this is a special crime, for it can only be committed by authorities or public servants according to the definition give of them by the article 24 CP. But there is more, because the omitted action must be a duty belonging to their position, as recalled by sentence 287/2004 of the Provincial Court of Ciudad Real: “The concept of public servant comprehends, not only those to which the articles 282 and 283 of the Spanish Criminal Procedural Law refer (Judicial Police), but, indistinctly to all public servants who are obliged to promote the prosecution and punishment of illicit facts, in whose case, both are included the judicial and administrative public servants.”
To this we have to add that, when the public servant is a member of the State Security Forces and Corps, they must always act defending the law and security of the citizens thus, incurring criminal responsibility, even when they are off duty.
Although, the author of the facts can only be an authority or public servant, we cannot reject other participants in the crime, either as necessary cooperators or as instigators (art. 28 CP), or even as accomplices (art. 29 CP), because the condition of authority or public servant is not required of them.
As we advanced before, the forbidden behavior consists in intentionally, not promoting the prosecution of crimes of which they have knowledge or the persons responsible for them. Thereby, this is a crime of pure omission or mere inactivity, since it is consummated with the omission of the duty of promoting the prosecution and punishment of the crimes, without being required any result. The sentence 287/2024 of the Spanish Provincial Court of Ciudad Real states: “With regard to the consummation, the duty of denouncing and promoting the prosecution of crimes, arises for the police officers, as soon as they have knowledge of their commission, according to article 262 of the Spanish Criminal Procedural Law, hence the crime is consummated in the instant that they know that a crime has been committed and do not act, at this moment begins the prescription of the crime too STS 1547/98 of 11 December.”
The omission of prosecuting the crimes of which they have knowledge, must be understood regarding those facts which have enough criminal appearance, for in no event, the police can be required to prosecute only those facts which without any doubt could be considered a crime, and conversely, nor can the police be required, indeed the investigations of prospective character are considered contrary to the law, to initiate a criminal procedure for mere suspicions. Therefore, the notitia criminis which reaches the authority or public servant must have some consistency.
Regarding the subjective elements of the crime, this requires a strengthened malice, since the precept expressly mentions that the active subject must act with an intention. Thereby, we must reject its commission by eventual malice. The active subject must know that the prosecution of the crimes is a duty inherent to they position and that the omission of this duty constitutes a crime.
– Article 409:
Let us first read the article 409:
“Article 409.
The authorities or public servants who promote, lead or organize the collective abandonment and manifestly illegal of a public service, shall be punished with the punishment of fine for a period of eight to twelve months and suspension of public employment or office for a period of six months to two years.
The authorities or public servants who merely take part in the collective abandonment or manifestly illegal of an essential public service and to the prejudice of this or the community, shall be punished with the punishment of fine for a period of eight to twelve months.”
The article 409 is divided into two paragraphs, punishing each one a different behavior. Beginning with the first one, this punishes the authority or public servant who executes the forbidden behavior, thus, it is a special crime too. For the purpose of the CP, an authority or public servant are those who fit within the definition given of them by the article 24 CP.
Although, the author of the facts can only be an authority or public servant, we cannot reject other participants in the crime, either as necessary cooperators or as instigators (art. 28 CP), or even as accomplices (art. 29 CP), because the condition of authority or public servant is not required of them.
The forbidden behavior consists in promoting, leading or organizing the collective abandonment or manifestly illegal of a public service. Pay attention to the fact that, in essence the behavior described by the precept is the right to strike established in the article 28.2 of the Spanish Constitution for any worker. The promotion, leading or organization of a constitutional right can never be a crime, thus, the precepts requires that the public abandonment of the public service must be manifestly illegal.
This makes us think of another characteristic of this crime, it is a blanket penal norm, since we must make use of other norms of administrative character to determine in which cases the abandonment of a collective service is manifestly illegal.
Concretely, this norm is the Legislative Royal Decree 5/2015, of 30 October, by which is approved the consolidated text of the Basic Statute of Public Employees, which in its article 15.c) recognizes their right to “Strike, with the guarantee of maintaining the essential services of the community.”
Therefore, the aforementioned legislation recognizes the right to strike of the public servants, but maintaining the essential services of the community. Then, the promotion, leading or organization of the collective abandonment of a public service is illegal, when the essential services of the community are not maintained, which is the limit to the right to strike.
In relation with the forbidden behavior too, we have to classify this crime as a crime of mere activity, since the precept does not require any specific result, just the execution of a behavior.
Pay attention to the fact that, the precept requires that the collective abandonment must be manifestly illegal. Something is manifest, when it is clearly perceptible by third parties, when it is evident. If we take this to the terrain of the subjective elements of the crime, we have to say that this is not only a malicious crime, the precept requires a strengthened malice. If the collective abandonment is manifestly illegal, there must be an evident direct malice too, in other words, there cannot be doubts that the intention of the active subject was to promote, lead or organize a collective and illegal abandonment, what excludes the possibility of committing the facts by eventual malice.
On the other hand, the second paragraph of the article 409 describes another forbidden behavior, which affects the authority or public servant who takes part in the collective abandonment and manifestly illegal of an essential public service, to the prejudice of this or the community.
The crimes described in the first paragraph and in the second paragraph are very similar, because they share many characteristics. Both are special crimes, bore are crimes of mere activity, both are blanket penal norms.
Notwithstanding, there are things which are different too, the abandonment in which they take part has to be either collective or manifestly illegal. Therefore, we must limit the commission of the facts through direct malice only to the cases of a manifestly illegal abandonment.
Another aspect which has changed is that, the collective abandonment or manifestly illegal must be of an essential public service and to the prejudice of this or the community. Then, not every collective abandonment or manifestly illegal is a crime, only those which affect to essential services and cause a prejudice to this or the community. However, despite this note, it seems that there is no difference between the first and second paragraph. In the first paragraph the limit to the right to strike was the maintenance of the essential services (art. 15.c) of the Legislative Royal Decree 5/2015), and this limit, is the one expressly mentioned by the CP, because the collective abandonment or manifestly illegal of an essential service to the prejudice of this or the community, undoubtedly entails the non-maintenance of the essential services of the community.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com