CHAPTER V
On bribery
Article 419
The authority or public official who for his own profit or for the profit of a third party, demands or receives, by himself or through intermediaries, donations or presents or accepts offers or promises for him to carry out in the exercise of his duty an action or omission constituting a crime, will be punished with imprisonment for a period of between two and six years, a fine ranging from the value to triple the value of the donation and specific disqualification from any public employment or post for a period of between seven and twelve years, without prejudice to the penalty corresponding to the crime perpetrated due to the donation or promise.
Article 420
The authority or public official who for his own profit or for the profit of a third party, asks for or receives, by himself or through intermediaries, donations or presents, or accepts offers or promises for him to execute an unjust act not constituting a crime, related with the exercise of his duty, and he executes it, will be punished with imprisonment for an amount of time ranging from one to four years and specific disqualification from any public employment or post for a period of six to nine years. If he does not execute the act, the penalty will be imprisonment for a period of between one and two years and specific disqualification from any public employment or post for a period of three to six years. In both cases, a fine will also be imposed, ranging from the value to triple the value of the donation.
Article 421
When the donation requested, received or promised is aimed at preventing an authority or public official from fulfilling an action which he has to carry out in the exercise of his post, the penalties will be a fine from the value to triple the value of the donation and specific disqualification from any public employment or post for a period of between one and three years.
Article 422
The provisions of precedent articles will also be applicable to jurors, arbitrators, experts, or any other person who participates in the exercise of official duties.
Article 423
1. The person who corrupts or endeavours to corrupt, authorities or public officials with donations, presents, offers or promises, will be punished with the same penalties of imprisonment and fine as the authorities or public officials in question.
2. Those who accept the requests of authorities or public officials will be punished with the penalty inferior in degree to the one established in the precedent paragraph.
Article 424
When a bribe is made in a criminal case in favour of the defendant by the defendant’s spouse, or another person in a similarly established and affectionate relationship, or by any ancestor, descendant or sibling, either naturally or by adoption or as in-laws in the same degree, the person who bribes will be punished with a fine ranging from three to six months.
Article 425
1. The authority or public official who requests a donation or present or receives an offer or a promise to carry out a characteristic action of his duty or as a reward for an action already carried out, will be punished with a fine ranging from the value to triple the value of the donation and suspension from his public employment or post for a period from six months to three years.
2. In the case of reward for an action already carried out, if this action constitutes a crime there will also be imposed the penalty of imprisonment from one to three years, a fine of six to ten months and specific disqualification from any public employment or post for a period from ten to fifteen years.
Article 426
The authority or public official who receives a donation or present that is offered to him in consideration of his position, or is offered to him in order that he fulfils an act not forbidden by law, will be punished with a fine from three to six months.
Article 427
The individual who consents occasionally to the request of a donation or present made by an authority or public official, and who reports this fact to that authority which has the duty to make enquiries, before the commencement of any corresponding procedure, will be exempt from punishment, provided that no more than ten days have passed since the date of the facts.
Criminal Code (Extract)
TITLE XIV
On offences against the Public Treasury and Social Security
Article 305.
1. Any person who through action or omission, defrauds the national, autonomous or local Treasury by evading payment of taxes, amounts retained at source or amounts that should have been retained or payments derived from remuneration in kind, obtaining fraudulent tax rebates or enjoying other forms of improper fiscal benefits through the same action or omission, when the amount of the defrauded tax payable, or the amount not paid in retained taxes or the amount of the fraudulently obtained rebate or other fiscal benefit improperly enjoyed, exceeds the amount of fifteen million pesetas, will be punished with a prison sentence of one to four years and a fine of up to six times said amount.
The upper half of the scale of sanctions stated in the previous paragraph will be applied when the fraud is made with the concurrence of any of the following circumstances:
a)The use of intermediate person or persons in such a way that the identity of the party truly obliged to pay the tax is concealed.
b)The transcendence or seriousness of the fraud in terms of the defrauded amount or the existence of an organised structure that affects or could affect a large number of taxpayers.
In addition to the sanctions mentioned, the perpetrator will lose the right to obtain grants or public subsidies and the right to enjoy benefits or fiscal incentives or Social Security incentives for a period of three to six years.
2.For the purposes of determining the amounts established in the previous paragraph, if it concerns periodical or periodical declarations of taxes, retentions, payments on account or rebates, it will be the amount defrauded within the corresponding fiscal period or declaration, and if this period should be less than twelve months, the defrauded amount will correspond to the period of one year. In any other case, the amount will be understood to refer to each of the different concepts for which a taxable circumstance is susceptible to payment.
3.The same sanctions will be imposed when the conduct described in the first section of this article is committed against the Public Treasury of the Autonomous Communities Regions), when the defrauded amount exceeds the amount of 50.000 ecus.
4.Any person who regularises his fiscal situation in terms of the debts that are referred to in the first section of this article, before the Tax Authority have given notice of any investigative actions to determine the fiscal debts that are to be regularised, or in the event of such actions not being undertaken, before the Public Prosecutor, the State Lawyer or the Representative of the Regional or Local Administration have laid a complaint or brought an action against said person, or when the Public Prosecutor or the Examining Judge carry out actions that will allow said person to have formal notice of the commencement of proceedings, will be exempt of criminal liability.
5.The exemption from criminal liability described in the previous paragraph will likewise apply to said subject for possible accounting irregularities or other instrumental falsifications that, exclusively in connection with the fiscal debts subject to regularisation, may have taken place, prior to the regularisation of said person’s fiscal situation.
Article 306.
Any person who through action or omission defrauds the Autonomous Communities’ General Budget or other funds administrated by the Communities, for an amount exceeding fifty thousand ecus, evading the payments which should be paid in or using the funds obtained for any purpose other than that for which they were supposed to be used, will be punished with a prison sentence of one to four years and a fine of up to six times said amount.
Article 307
1. Any person who through action or omission, defrauds the Social Security so as to evade the payment of the relevant contributions and concepts of joint tax collection, obtaining improper rebates or enjoying allowances that are similarly undue and fraudulent, when the amount of defrauded contributions or rebates or allowances exceeds fifteen million pesetas, will be punished with a prison sentence of one to four years and a fine of six times said amount.
The upper half of the scale of sanctions stated in the previous paragraph will be applied when the fraud is made with the concurrence of any of the following circumstances:
a) The use of intermediate person or persons in such a way that the identity of the party truly
obliged to contribute to the Social Security the tax is concealed.
b) The transcendence or seriousness of the fraud in terms of the defrauded amount or the
existence of an organised structure that affects or could affect a large number of
contributors to the Social Security.
2.For the purposes of determining the amount mentioned in the previous paragraph, it will be considered as being that defrauded in each settlement, rebate or allowance, and when these correspond to a period of less than twelve months, the amount will refer to a natural year.
3.Any person who regularises his contributory position with the Social Security in connection with the debts referred to in the point 1 this article, before being notified of the commencement of inspection actions carried out to determine said debts or, in the case that said actions have not been initiated, before the Public Prosecutor or the Social Security Lawyer lays a complaint or brings an action against said person, will be exempt of criminal liability.
The exemption from criminal liability described in the previous paragraph will likewise apply to said subject for possible instrumental falsifications that, exclusively in connection with the debt subject to regularisation, may have taken place, prior to the regularisation of said person’s contributory situation.
Article 308.
1.Any person who obtains a grant, a tax allowance or subsidies from public Administrations for more than ten million pesetas, by falsifying the conditions required for its concession or concealing information that would have prevented its authorisation, will be punished with a prison sentence of one to four years and a fine of up to six times said amount.
2.The same sanctions will be imposed on any person who in the performance of an activity funded by grants from Public Administration for an amount exceeding ten million pesetas, does not comply with the established conditions, by substantially altering the ends for which the grants were conceded.
3.In addition to the sanctions mentioned, the perpetrator will lose the right to obtain grants or public subsidies and the right to enjoy benefits or fiscal incentives or Social Security incentives for a period of three to six years.
4.Any person who in respect of the grants, allowances or subsidies referred to in the first and second sections of this article, repays the amounts received, increased by interest calculated from the time the funds were received at a rate equivalent to the legal rate of interest plus two percentage points, before said person has been notified of the initiation of inspection actions or control in respect of said grants, allowances or subsidies, or in the event of said actions not being undertaken, before the Public Prosecutor, the Treasury Counsel or the Representative of the Autonomous or Local Administration should lay a complaint or bring an action against said person, will be exempt from criminal liability.
The exemption from criminal liability described in the previous paragraph will likewise apply to that person for possible instrumental falsifications that, exclusively in connection with the debt subject to regularisation, may have taken place, prior to the regularisation of said person’s contributory situation.
Article 309.
Whoever improperly obtains funds from the General Budgets of the Communities or other funds administrated by such bodies, for an amount exceeding fifty thousand ecus, by falsifying the conditions required for their granting or by concealing information that would have prevented its authorisation, will be punished with a prison sentence of one to four years and a fine of six times said amount.
Article 310.
Any person who is obliged by the Tax Legislation to keep mercantile accounts, trading books or fiscal registers will be punished with arrest for of between seven to fifteen weekends and a fine of three to ten months should said person:
a) Neglect absolutely the duties and obligations imposed in respect of the direct estimation of fiscal bases regime.
b) Maintain different sets of accounts for the same activity and financial year that hide or simulate the company’s true situation.
c) Not annotate in the mandatory books, the business, activities, operations or in general, economic transactions, or annotates figures different from the true ones.
d) Enter fictitious accounting entries in the mandatory registers.
The consideration as an offence of the situations referred to in c) and d) will require that the tax declarations were not made, or that those that were presented were a reflection of falsified accounts and that the amount, overstated or understated, of the charges or payments omitted or falsified exceeds, without arithmetic compensation between them, the amount of thirty million pesetas for each fiscal year.
TITLE XIX
Offences against Public Administration
CHAPTER I
On the prevarication of public officials and other improper behaviour
Article 404.
Any public authority or official that knowingly dictates an arbitrary decision in any administrative case will be punished with specific disqualification from public employment or post for a period of seven to ten years.
Article 405.
Any public authority or official that, in the exercise of his competence and aware of the illegality, proposes, appoints or concedes the post of a determined public office to any person without the legally established requirement being fulfilled, will be punished with a fine of three to eight months and the suspension from work or public office for a period of six months to two years.
Article 406.
The same fine will be imposed on the person that accepts the proposal, appointment or takes possession of the post mentioned in the previous paragraph, knowing that he does do not fulfil the legal requirements established.
Article 418.
The individual that takes advantage, for himself or for third parties, of secret or price-sensitive information obtained from a public official or authority, will be punished with a fine of up to three times the benefit obtained or provided. If the event causes serious damage to the public cause or to a third party, the punishment will be a prison sentence of one to six years.
CHAPTER V
On bribery
Article 419.
The public authority or official that, for own benefit or that of a third party, asks for or receives, directly or through an intermediary, a gift, or presents or accepts an offer or promise for carrying out, while performing his task, any action or omission that may constitute an offence, will be punished with a prison sentence of two to six years, a fine of up to three times the value of said gift and the specific disqualification from any public employment or post for seven to twelve years, irrespective of the penal sanctions corresponding to the crime committed by virtue of gift or promise.
Article 420.
The public authority or official that, for own benefit or that of a third party, asks for or receives, directly or through an intermediary, a gift, or presents or accepts an offer or promise for carrying out, in the course of performing his task, any unjust action or omission that does not constitute a criminal offence and does in fact execute the unjust action or omission, will be punished with a prison sentence of one to four years, and specific disqualification from any public employment or post for six to nine years, and if the act or omission is not executed, the prison term will be from one to two years and specific disqualification from any employment or post for three to six years. In both cases, in addition a fine of up three times the value of the gift will be imposed.
Article 421.
When the requested, received or promised gift should be in exchange for the public authority or official not carrying out an act that they should while performing his task, the punishment will be a fine of up to double the amount of the gift and the specific disqualification from any public employment or post for a period of one to three years.
Article 422.
The foregoing provisions will be equally applicable to juries, arbitrators, experts, or any other person that participates in exercising the public function.
Article 423.
1.Any person who corrupts or attempts to corrupt, through the use of sops, gifts, offers or promises, the public authorities or officials will be punished with the same custodial and financial sanctions as the public authorities or officials themselves.
2.Any person who attends to such requests from public authorities or officials will be punished with sanctions one grade lower than those described in the previous paragraph.
Article 424.
When bribery is involved in a criminal cause to the favour of the offender, and committed by the spouse, common law spouse, ascendant, descendant or sibling, natural or by adoption, the briber will be punished with a fine of three to six months.
Article 425.
1.The public authority or official that solicits a gift or presents or accepts an offer or promise so as to carry out an act inherent to their duty, or as recompense for an act already carried out, will be punished with a fine of up to three times the value of the gift and suspension from practise for a period of six months to three years.
2.In the case of recompense for an action already performed, if this were to constitute an offence, in addition a penalty of a prison sentence of one to three years, a fine of six to ten months and the specific disqualification from any employment or post for a period of ten to fifteen years would be imposed.
Article 426.
The public authority or functionary that accepts a gift that is offered to him in consideration of said person’s function or for the performance of an action that is not legally prohibited, will be punished with a fine of three to six months.
Article 427.
Any person who has acceded occasionally to a request for a gift from a public authority or functionary and has notified the relevant authority responsible for investigating such a circumstance, before the commencement of the corresponding legal procedures and no more than ten days after the date of such an event, will be exempt of any penalty for the offence of bribery.
CHAPTER VI
On the trading in influence
Article 428.
The public authority or functionary that influences another public authority or functionary, on the exercise of the authority of their rank or any other situation derived from their personal or hierarchical relationship with this person or with any other authority or functionary so as to attain a resolution which may directly or indirectly generate an economical benefit for such a person or third party, will be punished with a prison sentence of six months to one year, a fine of up to double said benefit or gain, and specific disqualification from any public employment or post for a period of three to six years. If the benefit sought was indeed obtained the sanctions to be applied will be in the upper half of the scale.
Article 430.
Those that offer to carry out the actions described in the previous articles, requesting sops, gifts or any other remuneration, from third parties, or accept offers or promises, will be punished with a prison sentence of six months to one year.
In any of the cases that this article refers to, the judicial authority may also impose the suspension of activities of the society, company, organisation or office and the closure of its facilities open to the public for a period of six months to three years.
Article 431.
In all the cases reviewed in this chapter and the previous, the sops, gifts or presents will be confiscated.
CHAPTER VII
On Misappropriation of Public Funds
Article 432.
1.The public authority or functionary that, so as to profit, takes or allows a third party, with the same aim, to take the public funds that are in said persons charge due to their position, will be punished with a prison sentence of three to six years and absolute disqualification for the period of six to ten years.
2.The penalty of a four to eight year prison sentence and absolute disqualification for ten years will be imposed if the misappropriation of funds were especially serious in terms of the amounts stolen or the damage thereby caused or loss produced to the public service. The same sanctions will be imposed if the misappropriated objects have been declared to have historical or artistic value, or if they are goods destined to assuage any public calamity.
3.When the misappropriation is less than five hundred thousand pesetas, there will be a fine of between two and four months, a prison sentence of six months to three years and suspension from practise for six months to one year.
Article 433.
The public authority or official that uses public funds or resources at their disposal due to the nature of their post, for ends other than for the public cause, will be punished with a fine of six to twelve months and suspension from practise for six months to three years.
If the guilty person does not repay the stolen amounts within ten days after the commencement of the legal proceedings, he will be punished with the sanctions contemplated in the previous article.
Article 434.
The public official or authority that, for their own or any other party’s profit, and causing loss to the public services, gives any private application to movable or immovable goods belonging to any autonomic or local state Administration or Entity or Bodies depending on these, will be punished with a prison sentence of one to three years and specific disqualification from any employment or post for a period of three to six years.
Article 435.
The provisions of this chapter extend to:
1.Those that are in charge, for any reason, of funds, revenues or effects belonging to public Administrations.
2.Those legally designated as holders of public sums or effects.
3.Those administrators or depositories of money and embargoed goods, confiscated or deposited by the public authorities, even though these may belong to private individuals.
CHAPTER VIII
On fraud and illegal levy
Article 436.
The public authority or official that, intervening through their post in any of the actions involved in any form of public contracting or in the disposal of public property, connives with interested parties or uses any other method, to defraud any public entity will be punished with a prison sentence of one to three years and specific disqualification from any public employment or post for a period of six to ten months.
Article 437.
The public authority or official that asks for, directly or indirectly, undue rights or duties or fees, or being due, for amount above the legally established rates, will be punished, without prejudice to the repayments which are legally required, with a fine of six to twenty four months and suspension from practise for six months to four years.
Article 438.
The public authority or official that, taking advantage of his position, carries out any illegal, deceitful or appropriation offence, will be punished with the penalties specifically assigned to these situations, in the upper half of the applicable scale, and the specific disqualification from any public employment or post for two to six years.
CHAPTER IX
On negotiations and activities prohibited to Public Officials and abuse of office
Article 439.
Any public authority or public official who, being responsible for making a report, in the exercise of his duty, concerning any contract, matter, operation or activity, takes advantage of this circumstance to force or make easier his participation in any form, directly or through another person, in such business or activities, will be punished with a fine ranging from twelve to twenty for months and specific disqualification from any public employment or post from one to four years
Article 440.
Experts, arbitrators, liquidators, or disposal specialists that behave in the fashion described in the previous article, in relation to the goods or objects in respect of which they have intervened in the appraisal, division or adjudication, as well as tutors, guardians, or testamentary executors in respect of goods belonging to their wards or the estate, will be punished with a fine of twelve to twenty four months and the specific disqualification from public employment or post, profession or business, guardianship, tutelage or custodianship, as the case may be, for a period of three to six years.
Article 441.
The public authority or public official who – outside situations allowed by laws and regulations ¬exercises, directly or indirectly, any professional activity or gives any permanent or temporary advice, under the dependence of or in the service of private entities or citizens, in matters in which he must ordinarily participate or have handled, advised or decided in the office or body in which he is appointed to or he depends on, will be punished with a fine ranging from six to twelve months, and suspension from practise for a period of one to three years.
TITLE XIX BIS
On crimes of bribery in international commercial transactions
Article 445 Bis
Whoever that, through presents, gifts, offers or promises, bribes or tries to bribe, whether directly or through intermediaries, authorities or public officials whether foreign or from international organizations in the exercise of their post to the advantage of them or of a third party, or complies with their demands in respect to this, in order that they act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business, will be punished with the penalties set forth in Article 423 in each respective case.
SECTION 2
On the usurpation of powers
Article 506.
The public authority or official that, not having the required powers, dictates a general provision or suspends its enforcement, will be punished with a prison sentence of one to three years, a fine of six to twelve months and specific disqualification from any public employment or post for a period of six to twelve years.
Article 507.
The Judge that improperly assumes administrative powers that he does not have, or impede the legitimate exercise of them by those who do hold them, will be punished with a prison sentence of six months to one year, a fine of three to six months and the suspension from practise for a period of one to three years.
Article 508.
1.The public authority or official that improperly assumes judicial powers or impedes the enforcement of a sentence passed by the competent judicial authority, will be punished with a prison sentence of six months to one year, a fine of three to eight months and suspension from practise for a period of one to three years.
2.The administrative or military authority or official that attacks the independence of Judges, guaranteed by the Constitution, by giving them instructions, orders or intimations related to cases or proceedings that they are judging, will be punished with a prison sentence of one to two years, a fine of four to ten months and specific disqualification from any public employment or post for a period of two to six years.
Criminal Code (Extract)
Title XIV On offences against the Public Treasury and Social Security
Article 305.
1. Any person who through action or omission, defrauds the national, autonomous or local Treasury by evading payment of taxes, amounts retained at source or amounts that should have been retained or payments derived from remuneration in kind, obtaining fraudulent tax rebates or enjoying other forms of improper fiscal benefits through the same action or omission, when the amount of the defrauded tax payable, or the amount not paid in retained taxes or the amount of the fraudulently obtained rebate or other fiscal benefit improperly enjoyed, exceeds the amount of fifteen million pesetas, will be punished with a prison sentence of one to four years and a fine of up to six times said amount.
The upper half of the scale of sanctions stated in the previous paragraph will be applied when the fraud is made with the concurrence of any of the following circumstances:
a) The use of intermediate person or persons in such a way that the identity of the party truly obliged to pay the tax is concealed.
b) The transcendence or seriousness of the fraud in terms of the defrauded amount or the existence of an organised structure that affects or could affect a large number of taxpayers.
In addition to the sanctions mentioned, the perpetrator will lose the right to obtain grants or public subsidies and the right to enjoy benefits or fiscal incentives or Social Security incentives for a period of three to six years.
For the purposes of determining the amounts established in the previous paragraph, if it concerns periodical or periodical declarations of taxes, retentions, payments on account or rebates, it will be the amount defrauded within the corresponding fiscal period or declaration, and if this period should be less than twelve months, the defrauded amount will correspond to the period of one year. In any other case, the amount will be understood to refer to each of the different concepts for which a taxable circumstance is susceptible to payment.
The same sanctions will be imposed when the conduct described in the first section of this article is committed against the Public Treasury of the Autonomous Communities Regions), when the defrauded amount exceeds the amount of 50.000 ecus.
Any person who regularises his fiscal situation in terms of the debts that are referred to in the first section of this article, before the Tax Authority have given notice of any investigative actions to determine the fiscal debts that are to be regularised, or in the event of such actions not being undertaken, before the Public Prosecutor, the State Lawyer or the Representative of the Regional or Local Administration have laid a complaint or brought an action against said person, or when the Public Prosecutor or the Examining Judge carry out actions that will allow said person to have formal notice of the commencement of proceedings, will be exempt of criminal liability.
The exemption from criminal liability described in the previous paragraph will likewise apply to said subject for possible accounting irregularities or other instrumental falsifications that, exclusively in connection with the fiscal debts subject to regularisation, may have taken place, prior to the regularisation of said person’s fiscal situation.
Article 306.
Any person who through action or omission defrauds the Autonomous Communities’ General Budget or other funds administrated by the Communities, for an amount exceeding fifty thousand ecus, evading the payments which should be paid in or using the funds obtained fo