Abstract: Administrative malfeasance (art. 404 of the Spanish Criminal Code, "CP") and influence peddling (art. 429 CP) are the two criminal offences that most frequently arise together, or are debated together, in administrative corruption proceedings. Both appear in Title XIX of Book II of the Criminal Code and share the same protected legal interest: the correct, objective and impartial functioning of the Public Administration. Their typical structure, however, is radically different, which has decisive consequences both for the evidence required and for the possibility of their concurrence.
To this is added a dogmatic question of considerable practical scope: the participation of a private individual outside the Administration — the extraneus — in special offences that can only be committed by a qualified subject. Building on article 28 CP, the Second Chamber of the Supreme Court has developed a consolidated doctrine that allows the extraneus to be punished as an inducer or a necessary cooperator, under what is known as the unity of the title of imputation. This article addresses both questions with reference to the applicable offences and to Supreme Court case law, in light of which it comments on the recent judgment of the Provincial Court of Badajoz 0012/2026.
Administrative malfeasance (art. 404 CP)
Article 404 CP criminalises the conduct of an authority or public official who, knowing it to be unjust, issues an arbitrary decision in an administrative matter. The prescribed penalty is special disqualification from public employment or office and from the exercise of the right to stand for public office for a period of seven to ten years.
Malfeasance is a special offence that can only be committed by a qualified subject: only a person who holds the status of authority or public official within the meaning of article 24 CP can be a direct principal. The subject matter must be a decision of substantive, decisory content; mere procedural or preparatory acts fall outside the offence. The core element is objective arbitrariness — mere illegality is not enough. The decision must be objectively unjust, in open contradiction with the law and manifestly irrational, to the point that it is not the product of the legal order but the pure product of the agent's will, unreasonably converted into an apparent source of normativity. Finally, the offence requires direct intent of the first degree — the "knowingly" formula — which excludes negligence and avoidable (excusable) error.
Where the breach of the rules on access to public employment goes beyond ordinary illegality and reaches constitutional rank — in particular, the principles of merit and ability under articles 23.2 and 103.1 and 3 of the Spanish Constitution — the applicable offence is exclusively article 404 CP, which displaces the offence of unlawful appointment under article 405 CP as being the more serious.
Influence peddling (art. 429 CP)
Article 429 CP punishes a private individual who influences a public official or authority, taking advantage of any situation arising from his or her personal relationship with that official or with another official, in order to obtain a decision that may generate, directly or indirectly, an economic benefit for himself or herself or for a third party. Unlike malfeasance, it does not require the decision to be unlawful: what the offence punishes is not the arbitrariness of the outcome, but the process by which it is reached.
The core element is influence exercised through prevalimiento (abuse of a position of advantage/ascendancy). The Supreme Court has clarified that a mere suggestion or informal advice is not enough; the criminal conduct must be carried out by someone who holds a particular position of ascendancy, and the influence must be of sufficient weight to ensure its effectiveness by reason of the prevailing position occupied by the person exerting it. This requirement has decisive practical consequences: in essence, the prosecuting parties must set out the pressuring conduct through a concrete factual account — who exerted the influence, over whom, when, through which exact acts, and in what way it conditioned the official's will. Well-founded suspicion, however evident it may appear in factual terms, does not satisfy the constitutional standard of sufficient evidence of guilt.
Structural differences and concurrence
The Second Chamber of the Supreme Court, in judgment STS 908/2021 of 24 November, acknowledges that the distinction between the two offences is not easy, since both share the idea of an attack on the correct functioning of the Public Administration, in particular the protection of the duty of objectivity and impartiality that must govern its operation. Notwithstanding this shared protected legal interest, the structural differences are decisive.
Malfeasance under article 404 CP is a special offence requiring a qualified active subject; influence peddling under article 429 CP is a common offence, open to anyone. Malfeasance criminalises the objectively arbitrary decision regardless of motive; influence peddling requires proven abuse of a personal relationship (prevalimiento) and the aim of an economic benefit, without the decision needing to be unlawful. As regards the subjective element, malfeasance requires direct intent as to the injustice of the decision; influence peddling requires intent as to the abuse of position together with the specific intention of obtaining a benefit. The penalty also differs: malfeasance carries only disqualification, whereas article 429 CP additionally provides for a fine.
The most significant difference in practice concerns evidence. Malfeasance can be established through the administrative file's own documents, which evidence the arbitrariness by themselves. Influence peddling requires independent and specific evidence of the pressuring conduct, which cannot be replaced by inferences from context or by the mere finding of an irregularity. This asymmetry explains the — only apparent — paradox that the same set of facts may lead to a conviction for malfeasance and an acquittal for influence peddling.
Despite this, judgment STS 277/2015 of 3 June acknowledges that the two offences can coexist in an ideal (notional) concurrence: they may both arise from the same facts, provided that each is established autonomously and independently.
The extraneus doctrine
Since malfeasance is a special offence, a private individual outside the Administration — the extraneus — cannot be its direct principal. This does not, however, mean impunity. Article 28 CP treats inducers and necessary cooperators on the same footing as material principals, and on this basis the Second Chamber of the Supreme Court has consolidated the doctrine of the unity of the title of imputation: the extraneus answers for the same offence as the intraneus official — malfeasance, article 404 CP — but as a participant. There is no separate offence for the private individual. Case law systematises this doctrine in STS 277/2018 of 8 June (the Nóos case) and in the judgment of 29 November 2024, ROJ: STS 5977/2024.
A person who induces the official to issue the unjust decision answers as an inducer under article 28(a) CP; a person who provides something causally indispensable for this to happen answers as a necessary cooperator under article 28(b) CP. Article 65.3 CP optionally allows the extraneus's penalty to be reduced by one degree compared with the official's, but this mitigation is not automatic and does not apply where the extraneus's responsibility is equal to or greater than that of the intraneus.
An indispensable requirement for convicting the extraneus is the so-called double intent (doble dolo): knowledge that the official is issuing an unjust decision, and the will to actively contribute to it. The Supreme Court states this clearly: "criminal reproach as a participant requires that the person acting in that way not only pursue the commission of the criminal act, but must also have the intention to participate, in the sense of collaborating in another's criminal act. The participant must act with intent, so that his contribution to the offence must be made with knowledge that his contribution provides the principal with the assistance necessary to carry out the criminal act."
A mere beneficiary of an irregularity, without active participation or prior knowledge of the unlawfulness, falls outside the scope of punishability of article 404 CP.
Analysis of the judgment of the Provincial Court of Badajoz 0012/2026
1. Conviction for malfeasance, acquittal for influence peddling
The judgment convicts the institutional officials under article 404 CP on the basis of the administrative documentation: files, internal emails, staffing changes, two contradictory versions of the minutes of the selection committee, and award timelines. The documents themselves, with their internal inconsistencies, showed that the procedure had been tailored to the beneficiary, breaching the constitutional principles of merit and ability under articles 23.2 and 103.1 and 3 of the Constitution.
The Court, however, acquits on the article 429 CP charge for lack of evidence of prevalimiento. The Chamber acknowledges that it might speculate that the coordinated act of malfeasance was a response to prior pressure, but that this hypothesis lacks a factual basis set out by the prosecuting parties and lacks supporting evidence. In addition, the Court expressly formulates an alternative hypothesis compatible with the facts: that the officials acted on their own initiative, seeking to ingratiate themselves with the person who held power. Faced with two plausible hypotheses, the principle of in dubio pro reo, as set out in STS 114/2010 of 17 February, requires acquittal. The procedural lesson is direct: charging influence peddling requires a very specific factual account of the acts of pressure, which cannot be supplied by inferences from context or by evidence of the irregularity.
2. The conviction of the extraneus
The beneficiary of the appointments, Mr. David Sánchez Pérez-Castejón, held no status as an authority or public official and did not issue any of the decisions declared unlawful. Nevertheless, the judgment convicts him as a necessary cooperator under article 28(b) CP, applying the doctrine of STS 277/2018 and STS 5977/2024. The conviction covers only the second block of facts — the modification of the post through the so-called change of nomenclature — since the facts of the first block had become time-barred. The acts underlying the necessary cooperation are: submitting the application to the competition created to fit him, taking part in the selection process by supplying documentation to simulate formal legality, and being moved into duties unrelated to the content of the original post. The double intent is inferred from his proven prior knowledge that the post had been created for him.
The conviction does not carry a prison sentence, since article 404 CP does not provide for one. The only punitive consequence is special disqualification, which for the extraneus may be reduced by one degree under article 65.3 CP.
3. No civil award, and the matter reserved to the Court of Auditors
The Court does not order restitution of the salaries received, despite acknowledging the harm to the public purse, for a strictly procedural reason: the only prosecution brought was the popular action (acción popular), which lacks the status of an injured party and therefore lacks standing to bring the civil claim under article 110 of the Criminal Procedure Act (LECrim). The route for recovering the funds is the Court of Auditors (Tribunal de Cuentas), which has jurisdiction under article 18 of Organic Law 2/1982 and article 49 of Law 7/1988, before which the facts declared proven may have binding effect.
Conclusions
First. Malfeasance and influence peddling share the same protected legal interest but differ radically in their typical structure. The former punishes the objectively arbitrary decision regardless of motive; the latter requires proven abuse of a position of advantage (prevalimiento) and the aim of an economic benefit, without the decision needing to be unlawful. They may concur in an ideal (notional) concurrence, but each offence requires independent proof.
Second. The difference between convicting for malfeasance and acquitting for influence peddling is, in most cases, strictly a matter of evidence. Arbitrariness is established through the file; prevalimiento requires a concrete factual description of the act of pressure. Conjecture, however plausible, does not satisfy the constitutional standard of sufficient evidence of guilt.
Third. The extraneus may be convicted of malfeasance as an inducer or a necessary cooperator, under the unity of the title of imputation, answering for the same offence as the official. The optional mitigation under article 65.3 CP does not apply where his responsibility is equal to or greater than that of the intraneus.
Fourth. Convicting the extraneus requires double intent: knowledge of the unlawfulness of the official's act and the intention to contribute to its commission. A mere beneficiary without active participation or prior knowledge falls outside the scope of punishability.
Fifth. The absence of a civil award does not mean the harm to the public purse goes unpunished. It results from the popular action's lack of standing and from the reservation of that claim to the Court of Auditors, before which the criminal judgment may serve as a binding basis.
