“Of the usurpation of public functions and of the entry of unqualified people into the profession” is the title of the Chapter V, of the Title XVIII, of the Book II, of the Spanish Penal Code (CP). We are within the Title XVIII, therefore, we are still dealing with what the CP denominates falsehoods, and the legal good protected by this Chapter V is still the faith and the security and the confidence in the legal transactions.
It is not a long chapter, since it is made up of three articles, the article 402 and 402 bis dedicated to the crime of usurpation of public functions and the article 403 to the crime of unqualified individuals entering the profession. Let us now study them in detail.
– Article 402:
Let us start reading the article 402:
“Article 402.
Whoever illegitimately exercises acts belonging to an authority or public servant attributing to himself official character, shall be punished with the punishment of imprisonment from one to three years.”
Now, we have to explain it. At first sight, we observe that it is a common crime, in the sense that it can be committed by anyone. We draw this conclusion from the use of the expression “Whoever…”.
The forbidden action consists in, illegitimately exercising acts belonging to an authority or public servant attributing to himself official character. I think that the best is going to be to read this excerpt from the Spanish Supreme Court´s sentence 2551/2024, which explains very well the elements of the forbidden action: “The Spanish Supreme Court´s sentence 897/2012, of 14 November, which is a reference in our interpretative criterion of the article 402 CP declares that the cited precept, as a modality of falsehood, with specific chapter, punishes whoever feigns the ownership of a legal authority or public function which he lacks, provoking error in others regarding this. The requisites of the crime are:
a) The author has to carry out “acts”, in plural, in other words, with certain persistence, at least minimal, for understanding that the simulated status exists in reality.
b) The acts whose execution consummates the crime are characterized because it is possible to consider them as belonging to an authority or public servant. According to the Dictionary of the Spanish Royal Academy of the Language “belonging” (in Spanish “propio”), means that something belongs or is relative to someone who has the exclusive faculty of making use of it.
c) Besides two other circumstances have to concur. One, negative, of which depends the unlawfulness, which is that the acting cannot be lawful, in other words, no element may concur authorizing the execution of such acts when the active subject does not have the status of authority or public servant from which we can consider these acts as belonging to them. Another, which delimits the condition of active subject of the crime and is relative to the way or mode of executing the acts. The active subject cannot be the simulated authority or public servant and must carry out acts which imply the attribution of a public character which he does not have.
d) This shaping of the objective requisites of the penal precept implies, in the subjective, that the crime can only be committed by malice, and not by negligence. The subject has to carry out the acts conscious that he is attributing to himself a status which he does not have, in other words, that he acts consciously and deceiving other persons.”
Now, we are going to sum up what we have seen, and in some cases, we are going to give more information:
– The use of the word “acts” in plural, means that there must be a temporal continuity in the actions of the active subject for considering the behavior as illicit.
– The acts must belong to the sphere of action of the authority or public servant feigned by the active subject. Here we are going to provide more information, with the help of the sentence of the Spanish Provincial Court of Madrid 4497/2023: “a) The exercise of acts belonging to Authority or Public Servant constitutes the forbidden behavior which must be carried out by the active subject.
The term “acts belonging” is referred to those whose execution is the competence of an Authority or public servant. They have to be therefore, in principle, acts whose execution is exclusively attributed by the legal order to that class of subjects. However, that the author exercises some of the functions attributed to the Authority or public servant is not necessary, it is enough with invoking the condition of public servant and carrying out an act of those commonly executed by them and which are within the context of the attributions whose official character are attributed to the active subject of the crime (Spanish Supreme Court´s sentences of 16 March 1998, 20 July 1994, 14 July 1983). And it is enough with being any act of relation with the citizens, without being necessary an “administrative act” in the technical sense of the term.
In any case, the concept of “acts belonging to Authority or public servant” has to be limited in two ways:
In first place, the acts must belong to authority or public servant as consequence of his position or function, and be exclusive of this. If, on the contrary, they are acts which may be carried out by any other person, besides the authority or public servant whose functions are being usurped (for example, the report of an illicit act; the detention of a delinquent in flagrante -art. 490.2º LECrim) there will be no usurpation.
And in second place, it is not enough with being acts which only can be carried out by some public servants due to their condition, it is necessary that these acts imply the exercise of a State authority as such. To put it differently: the acts of public servant to which is referred the article 402 CP are not defined by the legal relationship between who exercises the act and the State; but, because they have to mean the performance of a State function (Spanish Supreme Court´s sentences of 28 June; 31 March 1992). In other words, the authority or public servant to which is referred the norm are the defined in the article 24 CP.”
– The acts must be unlawfully executed, in other words, their execution cannot be authorized, and the active subject must execute acts which suppose the attribution of an official character which he does not hold.
– It is a crime of mere activity which harm collective social interests and for this reason it does not require for its consummation other harmful results.
– It is a malicious crime. This excerpt from the Spanish Supreme Court´s sentence 898/2012, of 11 November is interesting regarding the above: “In the subjective ambit, it requires the assumption by the agent of this public function, either orally manifested or expressing it by acts by enough capacity for deceiving a person or a collectivity, knowing the unlawfulness of his behavior and the will of carrying out his irregular action (Spanish Supreme Court´s sentences 677/1998, of 18 May and 677/1998, of 24 June).
The agent, in the end, must act with the purpose of supplanting or forging the administrative reality which is derived from the requirement of an appointment according to the regulations governing public servants in order to being able to develop determined public functions -Spanish Supreme Court´s sentences 677/1998, of 18 May; 677/1998, of 24 June, 911/1999, of 9 June-.”
– Article 402 bis:
Like before, let us start reading the article 402 bis:
“Article 402 bis.
Whoever without being authorized publicly and improperly uses uniform, suit or badge which attributes to him official character shall be punished with the punishment of fine from one to three months.”
In the article 402 bis, we find the lenient version of the crime of usurpation of public functions of the article 402.
Like in the article 402 bis, it is a common crime, which, therefore, may be committed by anyone.
The forbidden behavior consists in, without being authorized publicly or improperly to use uniform, suit or badge which attributes to the author the character of official. Pay attention to the fact that, this behavior is less harmful to the legal good protected by the norm, the faith and the security and the confidence in the legal transactions, than the established in the article 402, in accordance with this, it has a less harsh punishment too. What is punished in the mere exhibition of an external element, like a suit or uniform, which attributes to who uses it an official character. However, we must be more precise, for the understanding of this precept in these broad terms may entail to punish behaviors which have not put into risk or harmed the legal good protected by the norm. The jurisprudence has required that, the exhibition of official elements must be surrounded of a context, from which we may infer that the active subject was attributing to himself an official character that he did not have. It is not the same, to disguise yourself as a police officer for a costume party, than to disguise yourself as a police officer to obtain the personal data of determined person. The former is licit, whereas the latter would be punishable by the article 402 bis. The sentence of the Spanish Provincial Court of Madrid 2868/2023 states: “the Supreme Court´s sentence 849/2022, of 27 October 2022 correctly describes the action of the article 402 bis CP which is not the mere exhibition, in the case analyzed by the sentence of the Supreme Court was about a military uniform, its use for provoking deception in third parties. The sentence says in its paragraph 37: “The precept, either of the article 637 CP or of the current 402 bis CP, does not punish the mere utilization of the emblems to which it is referred. It must be required, besides, that for the placing conditions of use it attributes to who use it the official character which, as result, demands the wording of the precept -think, in cases in which, despite its public use of the official suit, for example, a judge´s or lawyer´s robe, the contexts is a costume party-.
The placement of the precept in the Chapter IV of the Title XVIII, dedicated to the usurpation of public functions, obliges to identify a specific intention of arrogating to oneself the dignity, employment or trade which the material elements referred in the precept symbolize, using them as belonging to oneself. What provides the action with the potential harmfulness of the legal good protected.
Like we pointed out in our sentence 535/1993, of 13 March, in relation with the former article 334 CP, text of 1973, “Although, it is true that it has the nature of a pure formal crime and that it has been interpreted by the Jurisprudence of past times in a sense which we understand excessively broad, considering that it is committed although the intention of who use the uniform, suit, badge or academic title, is only of boasting. Today, however, regardless all the formalism which we want to grant to any criminal action, we find this interpretation discarded altogether in relation with the current social habits, since, in any case, the subjective element of this actions must have a motivation broader than the mere exhibitionism which, by itself, does not harm anyone, for, in reality, for classify the behavior as a crime it is necessary that this anormal or improper use must have a more concrete end, for example, of obtaining privileges or any favors based in the simple appearance, although these privileges or favors are not obtained.”
By the way in which the behavior is described by the precept, this is a crime of mere activity, and malicious, therefore, the active subject must want to arrogate to himself the official character that he does not have, deceiving third parties.
– Article 403:
The article 403 punishes the crime of unqualified individuals entering the profession. The article 403 says:
“Article 403.
1. Whoever exercises acts belonging to a profession without having the corresponding academic title issued or recognized in Spain according to the current legislation, shall incur in the punishment of fine from twelve to twenty-four months. If the professional activity requires an official title which accredits the necessary skills and legally authorizes its exercise, and he does not possess such title, shall be imposed the punishment of fine from six to twelve months.
2. Shall be imposed the punishment of imprisonment from six months to two years if any of the following circumstances concur:
a) If the culprit, besides, publicly attributes to himself the status of professional granted by the referred title.
b) If the culprit exercises the acts to which is referred the previous article in an establishment open to the public in which is advertised the rendering of services belonging to that profession.”
Like we are able to observe, it is a precept formed by two points. The first, describes the forbidden behavior, and the second, which we can consider an aggravated subtype, establishes two circumstances which concurring will suppose a harshening of the punishments established in the first point.
Art. 403:
The first that we realize reading the article 403 is that, it is a common crime, since it can be committed by anyone, regardless, for example, of his profession or any other characteristic or condition which may distinguish him from others.
The forbidden behavior consists in exercising “acts belonging to a profession without having the corresponding academic title issued or recognized in Spain according to the current legislation.” Or in making it, without the official title which accredits the necessary skills and legally authorizes its exercise.
Here we can make use of some of the things that we learned with the Spanish Supreme Court´s sentence 897/2012, of 14 November:
– When the precept refers itself to acts in plural, is leaving outside of its scope the behavior which are limited to a specific case, there must be continuity and consistency in the exercise of the activities reserved to a profession.
– The acts must belong to the exclusive sphere of a profession. If anyone could do them without an academic title, the behavior would be licit.
– Being acts belonging to a profession, it is required the corresponding academic title, issued or recognized by Spain. This denomination has to be reserved for the Doctorates, Degrees and analogous, which are the recognized by the university legislation.
– The attenuated version, is applicable when the acts belonging to a profession are carried out without official title, but this profession has to be legally established and regulated.
– It is a crime of mere activity which is consummated as soon as an act belonging to the profession is carried out without the corresponding academic title or official title.
As an example of the attenuated version of the crime of unqualified individuals entering the profession, we can mention the resolution of the Spanish Provincial Court of Castellon 1469/2022: “Although it is true that who exercises the medicine or any of its specialties without having the title of physician commits a crime of unqualified person entering the profession, in the gravest scenario of the first point of the article 403, we cannot reach at the same conclusion regarding the physician with academic title who exercises a specialty without special title.
…
In the end, legally the only regulated profession is that of physician, and not of specialist, save the case of the odontology which constitutes a specific case with its own regulation (Law 10/1986, of 17 March and Spanish Supreme Court´s sentence 29 September 1999, number 1215/1999). Accordingly, it is not possible to apply the second scenario of the article 403 to the non-specialist physicians.”
On the other hand, it is a malicious crime, which requires that the active subjects must know that his exercising an activity reserved to those who have an academic or official title, and that this, is a crime.
Art. 403.2:
The second point of the article 402, may be considered an aggravated subtype of the behaviors described in the first point, to exercise acts belonging to a profession without the corresponding academic or official title. I understand that this aggravated subtype is applicable to both.
The facts described in the first point shall be punished with the punishment of imprisonment from six months to two years:
“a) If the culprit, besides, publicly attributes to himself the status of professional granted by the referred title.
b) If the culprit exercises the acts to which is referred the previous article in an establishment open to the public in which is advertised the rendering of services belonging to that profession.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: victorlopezcamacho.com