INTRODUCTION

The offence of urban planning malfeasance under Article 320 of the Criminal Code constitutes a specific form of the more general offence of malfeasance regulated in Article 404 of the same legal text, to whose penalties it partially refers and whose nature and requirements it shares. Like the latter, it protects the proper exercise of public power, which in a State governed by the rule of law cannot be exercised arbitrarily, not even under the pretext of pursuing a public interest or benefits for citizens. Instead, it must always be exercised in accordance with the laws that regulate how decisions must be adopted and how constitutionally legitimate objectives must be pursued. However, its scope is limited specifically to administrative activity concerning the control of land-use planning and territorial organisation.

Nevertheless, the coordination of administrative and criminal measures for the protection of urban planning should not be interpreted as meaning that criminal law plays an inferior or merely auxiliary role in relation to administrative law. Both systems complement each other in order to strengthen the protection of a collective interest of particular relevance, each occupying its specific place and fulfilling the role that corresponds to its nature.

Administrative law performs a preventive function and also a primary sanctioning function, while criminal law is reserved for the most serious infringements, in accordance with the principle of minimal intervention.

The act of malfeasance consists of issuing an arbitrary decision in an administrative matter. This necessarily implies a contradiction with the law which, according to consistent case law, may arise because:

• the decision has been issued without the legally required jurisdiction,

• essential procedural rules have not been respected, or

• the substance of the decision itself contravenes existing legislation or constitutes an abuse or deviation of power.

(Supreme Court Judgment No. 727/2000 of 23 October).

However, there are many additional situations that may give rise to such illegality, including:

• the complete absence of legal grounds,

• decisions issued by incompetent bodies,

• omission of essential procedural steps,

• actions that clearly and flagrantly exceed the limits of legality, or

• open and manifest contradiction with the legal system and disregard for the general interest.

(Supreme Court Judgments No. 2340/2001 of 10 December and No. 76/2002 of 25 January).

Nevertheless, mere illegality or contradiction with the law is not sufficient to constitute a criminal offence. If this were the case, the supervisory function of the Administrative Courts would be practically nullified and the scope of criminal law would be excessively expanded, thereby undermining its character as ultima ratio.

Therefore, it is necessary to distinguish between:

• administrative illegality, even when serious enough to produce the nullity of the administrative act, and

• illegality that transcends the administrative sphere and constitutes a criminal offence.

Although both situations involve serious violations of applicable law, nullity of an administrative act cannot automatically be equated with malfeasance. Mere contradiction with the law is not sufficient; something additional is required in order to differentiate between administrative illegality and criminal conduct.

This additional element (“plus”) is legally defined by the requirement that the decision must be unjust and arbitrary, concepts that in this context are considered equivalent.

Ultimately, the principle of minimal intervention in criminal law requires that the criminal justice system intervene only in response to serious violations of the fundamental principles governing administrative action.

Criminal law therefore does not address mere irregularities or administrative illegalities, which have their own mechanisms of control within the administrative jurisdiction, but rather those acts that clearly violate the basic principles governing the functioning of the Administration.

Thus, as recognised in legal doctrine, the legal system provides mechanisms through which social interests can be adequately protected without the need to resort to criminal sanctions. Criminal law, as part of the State’s ius puniendi, has a fragmentary nature and represents the last sanctioning mechanism (ultima ratio).

Consequently, it does not sanction all conduct contrary to the legal order or harmful to the protected legal interest, but only the most dangerous forms of attack. Ultimately, its purpose is to guarantee social protection, not merely against administrative illegality—which would reduce the offence of malfeasance to a purely formal concept—but against administrative misconduct that significantly affects citizens and the community, causing potential or actual harm to public interests.

The Supreme Court Judgment of 16 October 1993, among others consolidating this line of jurisprudence (such as the judgments of 12 December 1994 and 29 September 2004), emphasised the distinction between administrative illegality subject to administrative control and criminal malfeasance. It stated that the injustice required by the criminal offence of malfeasance:

“must reach the level of manifest and intolerable injustice for the harmony of the legal system, which cannot tolerate—without serious damage to its guiding principles—that public administrations depart from the principles of objectivity and service to the general interest imposed upon them by the Constitution.”

Such injustice does not arise merely from the violation of legal formalities, since these defects may and should be corrected through administrative procedures.

Criminal law is justified only when the administrative act clearly contradicts the fundamental values that must guide and safeguard the exercise of public functions.

In similar terms, the Supreme Court Judgments of 28 April and 18 July 2005 further restricted the requirement of injustice, stating that it must be clear and manifest to such an extent that, if there exists any reasonable doubt, the criminal element disappears and the issue must be addressed as a mere administrative illegality within the corresponding administrative procedures (for example, Supreme Court Judgment of 7 February 1997).

The dividing line between administrative illegality and criminal malfeasance lies in the grossness or severity of the illegality of the administrative action (among others, Supreme Court Judgments of 20 April 1995 and 10 May 1993).

Legal doctrine therefore relies on objective criteria in order to determine the unjust nature of administrative action. In doubtful cases, injustice is considered to exist when no rational method exists to justify the interpretation adopted by the accused (Supreme Court Judgments of 10 July 1995 and 30 January 1997).

Accordingly, there must be a flagrant breach of legality, clear and manifest injustice, or the absence of any reasonable legal justification other than the personal will of the decision-maker (Supreme Court Judgment of 21 December 1999).

THE OFFENCE UNDER ARTICLE 320 OF THE CRIMINAL CODE: ANALYSIS, REQUIREMENTS AND APPLICABLE CASE LAW

Article 320 of the Criminal Code provides:

1.
“Any authority or public official who, knowing its injustice, has issued a favourable report on planning instruments, urbanisation projects, land division, land readjustment, construction or building projects, or the granting of licences contrary to the current territorial or urban planning regulations, or who, in the course of inspections, has concealed the infringement of such regulations, or has omitted the performance of mandatory inspections, shall be punished with the penalty established in Article 404 of this Code and, in addition, with imprisonment from one year and six months to four years and a fine of twelve to twenty-four months.”

2.
“The same penalties shall be imposed on any authority or public official who, either individually or as a member of a collegiate body, has resolved or voted in favour of the approval of the planning instruments, urbanisation projects, land division, land readjustment, construction or building projects, or the granting of the licences referred to in the previous paragraph, knowing their injustice.”