NATURE AND SCOPE OF APPLICATION

The regulation of administrative malfeasance is contained in Chapter I of Title XIX, Articles 404 to 406 of the Criminal Code. The Criminal Code of 1995 separated the offence of malfeasance committed by public officials from judicial malfeasance, which is regulated in the following title, although it will be briefly addressed. Furthermore, not all forms of malfeasance are included in this chapter, as other offences appear scattered throughout the Code—specifically in Articles 320, 322 and 329 of the Criminal Code—which are commonly referred to as special forms of malfeasance.

Before analysing the specific criminal provisions, it should be noted that, with regard to the legal interest protected, the offence of administrative malfeasance under Article 405 of the Criminal Code safeguards the proper exercise of public functions in accordance with the constitutional parameters that guide their performance, namely:

1. the priority service of the general interest,

2. submission to the Law and to the legal system, and

3. absolute objectivity and impartiality in the fulfilment of those purposes, in accordance with Article 108 of the Spanish Constitution (Supreme Court Judgment No. 18/2014 of 23 January).

For this reason, the sanction of malfeasance guarantees due respect for impartiality and objectivity within the sphere of public service and for the principle of legality, which constitutes a fundamental basis of a social and democratic State governed by the rule of law, in the face of serious and intentional illegality (Supreme Court Judgments No. 238/2013 of 23 March; No. 426/2016 of 19 May; No. 795/2016 of 27 October; and No. 373/2017 of 24 May).

In this regard, the offence of malfeasance committed by a public authority or official consists of the breach of a duty, specifically the duty to act in accordance with the legal system, a duty for which the authority or public official is both guarantor and primary subject. Consequently, conduct carried out outside and against the law entails an additional level of seriousness that justifies criminal liability.

Malfeasance represents the negative counterpart of the duty of public authorities to act in accordance with the Constitution and the legal system, as established in Article 9.1 of the Spanish Constitution, which is expressly reinforced with regard to Public Administration by Article 103 of the same constitutional text, which sets out the guiding principles governing administrative action and ultimately requires that all administrative acts be subject to the Law and to the legal system.

As the Supreme Court stated in Judgment No. 49/2010 of 4 February (and similarly in Supreme Court Judgments No. 238/2013 of 23 March; No. 426/2016 of 19 May; and No. 795/2017 of 25 October), the offence of administrative malfeasance protects the proper exercise of public functions in accordance with the constitutional parameters that govern them.

Thus, the aim is not to subject the legality of administrative actions to general criminal review through the offence of malfeasance, but rather to sanction limit situations in which administrative action, in addition to being illegal, is also unjust and arbitrary. This approach is consistent with the fundamental principles of subsidiarity, fragmentarity, minimal intervention and ultima ratio of criminal law.

SPECIFIC OFFENCES OF MALFEASANCE

The basic form of the offence of malfeasance is established in Article 404 of the Criminal Code, which provides:

“Any authority or public official who, knowing its injustice, issues an arbitrary decision in an administrative matter shall be punished with the penalty of special disqualification from public office or employment and from the exercise of the right of passive suffrage for a period of nine to fifteen years.”

According to the consistent case law of the Spanish Supreme Court (among others, Supreme Court Judgments No. 1021/2013 of 26 November and No. 743/2013 of 11 October), the existence of the offence of malfeasance requires the concurrence of the following elements:

1. A decision issued by an authority or public official in an administrative matter.

2. That the decision is objectively contrary to the law, that is, illegal.

3. That the contradiction with the law or illegality—which may arise from an absolute lack of jurisdiction, from the omission of essential procedural formalities, or from the substantive content of the decision itself—is of such magnitude that it cannot be justified by any minimally reasonable legal-technical argument.

1. That the decision produces a materially unjust result.

2. That the decision is issued with the purpose of enforcing the personal will of the authority or official and with the knowledge that the act is contrary to the law.

As mentioned above, the contradiction with the law may manifest itself both in the omission of essential procedural steps and in the substantive content of the decisions themselves, and it must be of such magnitude that it cannot be explained through any minimally reasonable legal interpretation.

Therefore, the illegality must be clear and manifest, requiring that, in order to constitute arbitrariness within the meaning of the offence, the decision must not only be legally incorrect, but also unsustainable according to any acceptable method of legal interpretation.

This flagrant illegality has frequently been described through various expressions such as “manifest”, “obvious”, “evident”, or “grotesque”, although what is ultimately decisive is the substantive reality of the factual circumstances in which those terms have been used.

In particular, the protected legal interest under this provision has been considered to be violated when a public official:

• adopts a decision contradicting a clear legal provision without any justification,

• acts without any jurisdiction whatsoever,

• completely omits essential administrative procedural formalities,

• acts with abuse or deviation of power, or

• fails to issue a mandatory administrative decision, thereby harming one of the parties involved in the administrative matter.

(See, among others, Supreme Court Judgment No. 647/2002, which contains further case-law references).

The typical arbitrariness should therefore be analysed from the perspective of an interpretation of the legal norm that cannot be supported by any recognised method of legal hermeneutics.

In other words, arbitrariness exists when the administrative decision cannot be sustained under any interpretative framework, when the meaning attributed to the legal rule by the author cannot reasonably be defended. This applies regardless of the purpose pursued, since intent is not a constitutive element of the offence, although it may, where appropriate, give rise to concurrence with other criminal provisions (Supreme Court Judgment No. 284/2009 of 13 March).