“Of the disobedience and of the refusal of help”, is the title of the Chapter III, of the Title XIX, about the crimes against of the Public Administration, of the Book II, of the Spanish Penal Code (CP).
It is not a long chapter, it is only made up of three articles. Although each of them punishes a different behavior, all of them have in common the legal good protected, the proper performance of the public function. Pay attention to the sentence 547/2024 of the Spanish Provincial Court of Sevilla 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 III.
– Article 410:
In the article 410, we have what can be denominated a crime of disobedience, though with the specificity that it can only be committed by an authority or public servant. The article 410 says:
“Article 410.
1. The authorities or public servants who openly refuse to fulfill judicial resolutions, decisions and orders of the superior authority, issued within the ambit of their respective competences and complying the legal formalities, shall incur the punishment of fine for a period of three of twelve months and special disqualification from employment or public office for a period of six months to two years.
2. Notwithstanding the established in the previous point, shall not incur criminal responsibility the authorities or public servants who do not fulfill an order which constitutes a manifest, clear and blunt infringement of a legal precept or any other general disposition.”
Let us start analyzing this article 410.
Art. 410.1:
The first that we realize when we read the article 410 is that, we are dealing with a special crime, because its author can be only an authority or public servant.
Nevertheless, we cannot exclude other participants in the crime, either as necessary cooperators or instigators (art. 28 CP), or even as accomplices (art. 29 CP), for the condition of public servant or authority is not required of them.
The next thing that we know when we read the precept is the forbidden behavior, which consists in openly refusing the fulfillment of judicial resolutions, decisions or orders of the superior authority, issued within the ambit of their respective competence and complying the legal formalities.
Therefore, it is a crime of pure omission or mere inactivity, for the precept punishes the inactivity of the authority or public servant when they are obliged to act.
The precept states that, the refusal must be open, which is the same than stating that it must be shameless, manifest, clear or evident. In my opinion, when the precept requires an open refusal it is also requiring a strengthened malice, this means that the facts can only be committed through direct malice, for in these cases the intention of the active subject does not leave room for doubts, as happens with the eventual malice.
This open refusal must be regarding the fulfillment of judicial resolutions, decisions or orders of the superior authority issued within their competence and complying the legal formalities. In other words, the authority or public servant must be legally obligated to obey. Something which will not happen, when the judicial resolution, decision or order of the superior authority is issued outside their ambit of competence or without the proper legal formalities. From which we can infer that, the authority or public servant will be able to disobey a judicial resolution, decision or order of a superior authority, whenever it has the aforementioned defects without incur criminal responsibility. From this, we can draw another characteristic of the crime established in the first point of the article 410, it is a blanket penal norm, which, therefore, must be completed with others norms in order to unveil completely its meaning.
Art. 410.2:
In the second point of the article 410 is established a specific exemption of criminal responsibility, since the authority or public servant can disobey a judicial resolution, decision or order coming from a superior authority, when these constitute a manifest, clear and blunt infringement of a legal precept or any other legal disposition.
Pay attention to the fact that, this second point of the article 410 states something that we already inferred from the first point of the article 410, an authority or public servant will be able to disobey a judicial resolution, decision or order of a superior authority, when the have been issued outside their ambit of competence or without the proper legal formalities. In any case, this second point, aside from clearing up doubts, requires that the infringement of law or legal disposition must be manifest, clear and blunt, which means that, there can be no doubt regarding whether the judicial resolution, decision or order must be fulfilled or not, for infringing either a law or another legal disposition. Whenever there are doubts, the authority or public servant must comply with the judicial resolution, decision or order of the superior authority.
– Article 411:
The article 411 may be regarded an aggravated version of the article 410, since it increases the punishments imposed by the latter, when the circumstances which it mentions concur. The article 411 states:
“Article 411.
The authority or public servant who, having suspended, for any motive which is not the expressed in the second point of the previous article, the execution of the orders of their superiors, disobeys it after the disapproval of the suspension by them, shall incur the punishments of fine for a period of twelve to twenty-four months, and special disqualification from public employment or office for a period of one to three years.”
As before, we must start saying that this is a special crime, since it can be only committed by authority or public servant. Again, we cannot exclude the participation of other authors in the crime who do not have such condition, although in their case, they are going to be considered necessary cooperators or instigators (art. 28 CP), or even accomplices (art. 29 CP).
In this case, the forbidden behavior consists in, having suspended the execution of the orders of their superiors, outside the motives expressed by the previous article, disobeying them after such superiors have disapproved the suspension. Then, this article 411 punishes continued refusal of the authority or public servant to follow the orders of their hierarchical superior.
The question which arises is, what is the difference between suspending the execution of an order and openly refusing to fulfill it? Because this is the criterion for choosing between the article 411 or the article 410. In my opinion the difference is not clear. The criterion which distinguishes both scenarios is the disapproval of the order of suspension by the hierarchical superiors, thereby, if an authority or public servant openly refuses to comply with an order from their superiors shall be applied the article 410, and when they refuse to comply with such order when their superiors have manifested in a second occasion that they have to comply it, shall be applied the article 411. Moreover, the fact that the article 411 punishes with harsher punishments the forbidden behavior seems to support this interpretation of both articles.
In any case, this article also establishes a specific exemption of criminal responsibility, the same that the established in the article 410, that the order must be a manifest, clear and blunt infringement of a legal precept or any other general disposition.
With regard to the subjective elements of the crime, it is evident that this is a malicious crime. Malicious crime which does not admit its commission by eventual malice, for existing a subsequent refusal to the suspension by hierarchical superiors, there is no doubt regarding the intention of the authority or public servant, they want to disobey the order given by them.
– Article 412:
In the article 412 we have the different variables of the crime of refusal to help when it is committed by an authority or a public servant. The article 412 states:
“Article 412.
1. The public servant who, required by the competent authority, does not provide the help required by the Justice Administration or another public service, shall incur the punishments of fine for a period of three to twelve months, and suspension from public employment or office for a period of six to twelve years.
2. If the required person is authority, boss or person responsible for a public force or an agent of the authority, shall be imposed the punishments of fine for a period of twelve to eighteen months and suspension from public employment or office for a period of two to three years.
3. The authority or public servant who, required by a private person to provide some help of which they are obligated by reason of their position for preventing a crime against the life of the persons, abstains from providing it, shall be punished with the punishment of fine for a period of eighteen to twenty-four months and special disqualification from public employment or office for a period of three to six years.
If the crime is a crime against the integrity, sexual liberty, health or freedom of the persons, shall be punished with the punishment of fine for a period of twelve to eighteen months and suspension from public employment or office for a period of one to three years.
In the case that such requirement is for preventing any other crime or another harm, it shall be punished with the punishment of fine for a period of three to twelve months and suspension from public employment or office for a period of six months to two years.”
The article 412 is made up of three points, let us analyze each of them.
Art. 412.1:
The first thing that we observe when we read this first point is that, it is a special crime, since it can only be committed by a public servant. In order to determine what the CP understands by public servant we must read its article 24.
Despite its classification as a special crime, we cannot forget that there can be other participants in the crime, although as necessary cooperators or intigators (art. 28 CP), or even as accomplices (art. 29 CP).
The forbidden behavior consists in, after being required by the competent authority, not providing the required help to the Administration of Justice or other public service. Then, we must consider this crime a crime of pure omission or of mere inactivity.
Pay attention to the fact that, the article 412 clearly specifies that the public servant must be required by the competent authority, therefore, we have to understand that, when they are required by an authority that is not the competent, there is no crime if they do not provide the help.
Another important aspect which we have not mentioned regarding the active subject is that, we must understand that the provision of the help to the Administration of Justice or other public service belongs to their functions as public servant, otherwise they cannot be obligated to provide such help.
Again, we are dealing with a malicious crime, the problem is to assess whether it can be committed by eventual malice or not. In my opinion, we must reject this possibility because there is a previous requirement from the competent authority, what clears up doubts regarding the intention of the author, they were to not comply with its obligation.
Art. 412.2:
In the second point of the article 412, we have an aggravated subtype of the crime established in the first point, which depends on the condition of authority, boss or person responsible of a public force or agent of authority, of the active subject.
In order to obtain a definition of authority, we must read the article 24 CP. And for obtaining the definition of agent of the authority we must attend to the Organic Law 2/1986, of 13 March, of Law Enforcement Agencies, which in its article 2 states:
“Law Enforcement Agencies are:
a) The Law Enforcement Agencies depending on the Government of the Nation.
b) The Police Forces depending on the Autonomous Regions.
c) The Police Forces depending on the Local Corporations.”
And its article 9 states:
“The Law Enforcement Agencies exercise their functions in all the national territory and are integrated by:
a) The National Police Corps, which is an Armed Institution of civil nature, depending on the Minister of the Interior.
b) The Civil Guard, which is an Armed Institution of military nature, depending on the Minister of Interior, in the performance of the functions which this law attributes to it, and the Minister of Defense in the fulfillment of the missions of military character which this or the Government entrust it. During war and during state of siege, it shall exclusively depend on the Minister of Defense.”
Then, the Law Enforcement Agencies are made up of: The National Police, the Civil Guard, the Regional Polices and the Local Polices.
Art. 412.3:
In the third point of the article 412, we deal with a completely different crime of those established in the first and second point.
Again, we must classify it as a special own crime which can be only committed by authority or public servant. In spite of this, we cannot forget that there can be more participants in the crime, although as necessary cooperators or instigators (art. 28 CP), or even as accomplices (art. 29 CP).
The forbidden behavior consists in, being required by a private person to provide help due to their position for preventing a crime against the life of the persons, abstaining to provide it. We must stress that, the precept specifically requires that the provision of help for preventing a crime against the life of the persons, must be an obligation belonging to the position of the active subject. This tightens the circle with respect to the possible active subjects. In my opinion, what the sentence 287/2024 states, is valid also here: “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.”
Because of the forbidden behavior, we must classify this crime as a crime of pure omission or mere inactivity, since this consists in omitting the requirement of help required by a private person.
Pay attention to the fact that, this first paragraph of the third point of the article 412, seems very similar to the article 408. However, we also observe that the forbidden behavior of the article 412 is harsher punished than of the article 408, probably because the article 408 is aimed at promoting the initiation of a criminal procedure, while the article 412 is aimed at preventing the commission of a crime. Furthermore, in order to incur the behavior punished by the article 412, it seems to require a real and imminent danger for the life of the person or persons.
On the other hand, it is malicious crime.
Lastly, the second and third paragraph of the article 412 diminish the punishment imposed by the first point depending on the type of crime for which the private person requires help.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com