Offences Against Public Administration: Marbella Defense

1. Administrative Malfeasance / Prevaricación Administrativa (Art. 404 Criminal Code)

This punishes the authority or public official who, knowing it to be unjust, issues an arbitrary ruling in an administrative matter, carrying a penalty of special disqualification from nine to fifteen years. Case law has refined the limits of this offence with increasing rigour, precisely to prevent criminal law from substituting for the administrative-law courts in their role of reviewing legality:

"...no basta la mera ilegalidad para integrar el ilícito penal, sino que debe apreciarse una contradicción tan patente y grosera que no admite explicación razonable."

The technical defence in this area is built around two pillars: on one hand, demonstrating that the contested ruling, even if debatable or even voidable through administrative channels, is sustainable through a minimally reasonable legal interpretation of the applicable rule, which excludes the arbitrariness required by the offence; on the other, challenging the subjective element — actual knowledge of the injustice — when the client acted in good faith within their margin of administrative discretion, a distinction that case law itself recognises as the dividing line between a management error and a crime.

2. Bribery / Cohecho (Arts. 419 to 427 bis Criminal Code)

Bribery punishes the authority or public official who solicits, receives or accepts a gift, favour or reward of any kind — directly or through an intermediary — in exchange for an act connected to their office, distinguishing between "cohecho propio" (bribery proper), where the gift is sought for an act contrary to the duties of office, and "cohecho impropio" (improper bribery), where it is sought for an act the official was going to carry out in any case. Article 424 of the Criminal Code extends liability to the private party who offers or hands over the gift, with penalties equivalent to those of the corrupted official.

This is a mere-conduct offence whose consummation requires neither the actual performance of the agreed act nor the payment actually being made:

"...la mera aceptación de la promesa de entrega futura de la dádiva es suficiente para la consumación del delito, sin necesidad de que llegue a materializarse."

Our defence challenges the circumstantial evidence of the arrangement between the parties — common in this area given the absence of direct proof of the corrupt pact — the classification of the advantage received as a penally relevant gift as opposed to ordinary social courtesies, and the actual existence of a causal link between what was handed over and a specific act of office, without which the offence cannot stand.

3. Embezzlement of Public Funds / Malversación de Caudales Públicos (Arts. 432 to 435 Criminal Code)

Following the reform brought about by Ley Orgánica 14/2022 (Spain's Organic Law 14/2022, which amended the Criminal Code's provisions on embezzlement of public funds), Article 432 of the Criminal Code punishes the authority or public official who, with intent to profit, appropriates or allows a third party to appropriate public assets under their charge by reason of their functions, replacing the verb "to remove" used in the previous wording with "to appropriate," with significant consequences for how the facts are characterised and for the transitional regime applicable to ongoing cases. The reform also introduced, in Article 434 of the Criminal Code, a mitigated regime for less serious cases and for the voluntary restitution of the misappropriated funds, a matter we pursue proactively whenever the client's situation allows it.

Case law requires, for the offence to apply, the combined presence of intent to profit — for oneself or another — and actual availability of the funds by the official by reason of their office, two elements on which much of our defence strategy is built: the absence of any intent of definitive appropriation — as opposed to mere irregular use with the intention of restitution — and the lack of genuine, rather than merely nominal, authority over the funds in question.

4. Influence Peddling / Tráfico de Influencias (Arts. 428 to 430 Criminal Code)

This punishes the private party or official who, taking undue advantage of the powers of their office or of any other situation arising from their personal or hierarchical relationship with another official or authority, influences that person to obtain a ruling that could directly or indirectly generate an economic benefit for themselves or a third party. The core element of the defence lies in the notion of taking undue advantage: case law has clarified that merely handling an interest or making a friendly approach to another official is not enough unless there is a position of ascendancy or pre-eminence over the person influenced that genuinely conditions their decision — a distinction that is often decisive in excluding the offence where the conduct amounts to ordinary political or institutional business.

5. Prohibited Dealings and Activities by Public Officials / Negociaciones y Actividades Prohibidas a los Funcionarios Públicos (Arts. 439 to 444 Criminal Code)

This chapter punishes the official who, taking advantage of their position, takes an interest in any kind of contract or transaction in which they must intervene by reason of their office, as well as the official who takes part in decisions concerning matters in which they have a direct or indirect interest — incompatibilities that have been reinforced by administrative regulations on conflicts of interest. We handle these matters with particular attention in the fields of public procurement, urban planning and the granting of subsidies, areas where the line between a purely administrative conflict of interest and a criminal offence demands especially rigorous analysis.