What is the crime of prevarication?

Surely, on more than one occasion, you have heard about the crime of prevarication on television or in the newspaper. However, it is quite likely that you are not sure what it consists of, as these media often do not explain it adequately. Here we would like to give you an exact definition and tell you about the different types in order to solve all your doubts about it.

What is the crime of prevarication?

This offence is defined in article 446 of the Penal Code and can literally be described as one of the most serious and execrable crimes that any magistrate or judge can commit. Specifically, it consists of issuing an unjust decision or sentence in the knowledge that it is unjust.

To give you an idea, for this type of crime to occur, it would be necessary for a judge, knowing that a person accused of committing a murder is actually innocent because there is evidence to prove it, to issue a sentence declaring him guilty.

What are the penalties for committing this offence?

Judges or magistrates who commit this offence will face the following penalties:

• A sentence of 1 to 4 years imprisonment in the event that the unjust sentence was passed against a person accused of having committed a serious criminal offence. If the sentence has not yet been executed, the penalty is limited to 1 to 2 years' imprisonment. If it has been executed, between 3 and 4 years. In addition, the judge or magistrate must be absolutely disqualified from continuing to carry out his or her work for a period of between 10 and 20 years.
• Imprisonment of between 6 and 12 months for judges who pass an unjust sentence against a person accused of a minor offence. In addition, special disqualification from office for a period of 6 to 10 years.
• Imprisonment of between 12 and 24 months if the sentence or decision concerns another type of offence. In addition, the disqualification will also be for a period of between 10 and 20 years.

Possible active subjects of this type of offence

After all that has been said above, it is easy to conclude that the only people who can actively commit this offence are, firstly, court clerks, lawyers in the Administration of Justice, magistrates and judges. However, it can also be carried out by judicial officials attached to the administration of justice, which would give rise to the crime of administrative prevarication. We will talk about this later on.

All these individuals will have to face this offence on the grounds that they have breached their public duty. It is irrelevant whether they have done so actively or omissively, or whether they have simply participated in the process.

The commission of the offence by delaying sentencing

Article 449 of the Criminal Code also establishes that this offence can be committed through omissive conduct. This means that if the judge delays the delivery of the judgement or leaves aside his obligation to enforce it, knowing that this could be detrimental to the defendant, he is also committing this offence.

However, the delay 'per se' of a court judgement does not necessarily imply the commission of this offence. In order to be considered as such, it must be demonstrated that there is 'malice aforethought', i.e. malice on the part of the perpetrator, as this is a defining element of the offence.

In addition, in order for malice to exist, and therefore for this offence to exist, it must also be shown that the judge, magistrate or official is doing so for an illegitimate purpose. In either case, the penalties contemplated are the same as those explained in previous paragraphs.

Administrative prevarication

The offence of administrative prevarication is understood to be that which is committed by public officials other than court clerks, lawyers for the Administration of Justice, magistrates or judges. Everything related to it is typified in Article 404 of the Penal Code.

Specifically, this article states that any civil servant or public authority who, knowing that it represents an injustice for a specific subject, issues an arbitrary decision related to a subject corresponding to the Public Administration in any of its branches, will be punished with special disqualification from exercising their right to passive suffrage and from holding their post and employment for a period of between 9 and 15 years.

Is this offence applicable in other situations?

The answer is yes. To find out what those situations are, we need to take a look at article 405 of the legal text to which we have been alluding throughout the article.

In general terms, this article determines that this offence can also be committed by any public official or authority who, being aware of the illegality of the act and taking advantage of the powers provided by his or her competence, appoints, proposes or gives possession of a public office to a subject who does not meet the established legal requirements. In this case, the offender will face suspension and disqualification from office for a period of between 1 and 3 years. In addition, he/she will have to pay a fine of between 3 and 8 months imprisonment.

On the other hand, if this appointment, proposal or taking office depends on another public official of higher rank who, knowing that the subject lacks the established legal requirements and the possible commission of the offence by his or her inferior, accepts it, he or she will also have to face the same penalties and fines.

What does the Supreme Court have to say about it?

Due to the fact that the commission of this offence has created controversy on a fairly regular basis, the Second Chamber of the Supreme Court, on 10 May 1993, handed down a judgement with the capacity to establish jurisprudence on the matter.

In this sense, this Supreme Court ruling specifies that this type of offence is committed, specifically, when the public official with the power to propose, appoint or appoint another official, as well as the superior who supervises him/her, provided that he/she is aware of the matter, shows during the process a lack of observance of the rules of procedure, of the official's powers and of the content of the relevant resolutions, above all, if these are contrary to what is dictated in the current legal system.

In short, prevarication, both when committed by judges, magistrates or any other member of the Public Administration and when carried out by public officials with the power to do so, is one of the most reprehensible crimes contemplated by our legal system. In fact, although it is not subject to excessively high prison sentences, it does entail very long terms of disqualification and is designed to practically put an end to the sentenced person's career, at least in the public sphere. Unfortunately, if you look hard enough, you will find a multitude of cases and examples.

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