Serious or minor disobedience: when it is a crime and when it is only a fine

Disobedience to authority occupies a very broad spectrum in Spanish law. At one extreme, simple passive resistance to a police order that is resolved with an administrative fine. At the other, serious disobedience that becomes a criminal offence with a record. Knowing this distinction can make the difference between an administrative penalty and a criminal process.

Disobedience as an offence is regulated in Article 556 of the Criminal Code, which punishes those who resist authority or its agents, or seriously disobey them, in the exercise of their functions. The key element is the adverb seriously: not all disobedience is an offence. Minor disobedience, on the other hand, may be penalised administratively through Organic Law 4/2015 on the Protection of Public Safety, with financial fines and without the intervention of the criminal courts.

What makes disobedience serious? Case law has gradually built up several criteria. The first is the legitimacy of the order: for there to be disobedience, the order must come from someone with competence, be within the legal scope and have been communicated clearly; an illegitimate order does not generate an obligation of obedience, and ignoring it may be the exercise of a right. The second is the intensity and persistence of the refusal: for it to be an offence it must be repeated, manifest and persistent, not a delay or a misunderstanding; whoever asks for clarification or questions the legal basis of the order is not being disobedient in the criminal sense. The third is the context and circumstances. And the fourth is the actual impact on the functioning of the authority.

Some typical situations illustrate the distinction. The refusal to identify oneself may be disobedience if the request is legitimate and the refusal express and repeated. The refusal to leave a place, if passive, such as sitting down or remaining still without aggression, usually falls in the least serious zone. The refusal to undergo a breathalyser test has a specific regulation as a separate offence in Article 383. And non-compliance with court orders is classified differently, as breach of sentence under Article 468.

The consequences differ. Serious disobedience under Article 556 is punishable by a fine of three to six months and generates a criminal record; if accompanied by resistance or violence, it may be elevated to resistance or assault. Minor disobedience gives rise to an administrative penalty under the Public Safety Act, with fines that may be high but do not generate a criminal record and are challengeable before the administrative-litigation jurisdiction.

Faced with an accusation of disobedience, the most frequent defence strategies are to question the legitimacy of the order; to argue the absence of sufficient seriousness, if the refusal was isolated or passive; to point out the lack of clarity or repetition of the order; and to propose redirection to the administrative route, arguing that the conduct, in any event, would only merit an administrative penalty.

Finally, it is worth remembering that refusing to open the door to the police when they do not have a court order is not disobedience, but the exercise of the fundamental right to the inviolability of the home.