The ruling convicting several officials of the Provincial Council (Diputación) of Badajoz — including its president Miguel Ángel Gallardo Miranda and the beneficiary of the appointments David Sánchez Pérez-Castejón — has generated intense public debate. But beyond the political noise, it contains legal decisions that deserve careful analysis. Three questions structure the case: Why is there a conviction for malfeasance in office (prevaricación) but an acquittal for influence peddling (tráfico de influencias), when the underlying facts are essentially the same? How can someone outside the Civil Service be convicted of malfeasance, an offence that in principle only public officials can commit? And why does the court not order repayment of the salaries, even though it acknowledges that public funds were harmed?
Malfeasance yes, influence peddling no: two closely related offences with different evidentiary requirements
Both offences protect the same legal interest: the proper functioning of public administration, its objectivity and impartiality. The ruling itself, citing STS 908/2021 of 24 November, acknowledges that the distinction "is not straightforward since both share the concept of an attack on the proper functioning of public administration, in particular the protection of the duty of objectivity and impartiality that must govern its operation in satisfying the general interests and services demanded by citizens."
But although they share the same protected legal interest, their constituent elements differ — and that changes everything when it comes to proof. Malfeasance in office under Art. 404 of the Criminal Code (Código Penal, CP) punishes the official or public authority who knowingly issues an arbitrary ruling. The ruling must be objectively unjust, not merely debatable or improvable; in the court's words, it must be "objectively unjust, in open contradiction with the law and manifestly irrational, to the point that it is not the product of the Constitution and the rest of the legal order, but purely and simply the product of the agent's will, unreasonably converted into an apparent source of normativity."
Influence peddling under Art. 429 CP is different. It does not require the resolution to be unlawful; it is sufficient that it benefits the perpetrator or a third party. However, it does require something that malfeasance does not: actual pressure. The typical conduct is "influencing by abuse of a position of superiority" (influir con prevalimiento), which the Supreme Court specifies by stating that "mere suggestion does not suffice; the criminal conduct must be carried out by someone who holds a certain position of ascendancy, and the influence must carry sufficient weight to ensure its effectiveness by virtue of the prevailing position occupied by the person who exerts it."
Both offences may concur in respect of the same facts. STS 277/2015 of 3 June recognises that "malfeasance and influence peddling are compatible in a relationship of ideal concurrence." But each requires its own proof.
Why, then, is there a conviction on one count and an acquittal on the other?
Malfeasance was established through the various documents adduced, including administrative files, internal emails, staffing structure modifications, the two contradictory versions of the minutes of the selection committee — one recovered from email servers, another the official record — and the adjudication timetables. The documents themselves, with their internal inconsistencies, demonstrated that the procedure had been designed to fit the beneficiary, and that the constitutional principles of merit and ability in access to public employment had been violated.
Influence peddling would have required something qualitatively different: a concrete factual account of an act of pressure — who exerted it, on whom, when, with what words or specific conduct, and how it conditioned the will of the official who subsequently issued the resolutions. That evidence did not exist.
The court acknowledges this with notable candour, stating that it can "conjecture that the coordinated malfeasant conduct of the accused was the response to prior pressure or influence exerted upon them, but that hypothesis lacks both a developed and described factual foundation from the prosecuting parties and any evidentiary basis to support it. We do not know, in sum, who exerted pressure or ascendancy over those responsible for the distortion of the law, nor in what specific acts the influence was materialised."
The constituent elements of Art. 429 CP, in accordance with established case law, require that the pressure or influence conduct be the subject of a factual description by the prosecution and be established beyond any reasonable doubt. It was not. The in dubio pro reo principle comes into play, as reflected in the judgment cited by the court (STS 114/2010 of 17 February): "after weighing all the evidence, prosecution and defence, if the court does not reach a judgment of certainty in an incriminatory finding to the required standard of being certain beyond all reasonable doubt, it must acquit."
There is also an important procedural dimension: the prosecuting parties did not construct that narrative with sufficient detail in their pleadings. That deficiency cannot be remedied by general inferences about the context or the suspicious nature of the outcome. The practical lesson is significant: in proceedings for administrative corruption, charging influence peddling requires building a very specific factual account of the acts of pressure. Reasonable suspicion, however well-founded, is not sufficient for conviction.
Could circumstantial evidence have sufficed? It is a legitimate question. One might argue that, when a post is created specifically for the brother of the Prime Minister, it is unlikely to have occurred through the spontaneous initiative of a junior official; that something must have happened, even if there are no recorded conversations to prove it. However, that reasoning runs into serious difficulties in light of the court's own logic. Circumstantial evidence requires peripheral base-facts to the fact to be proved, themselves established by direct evidence. The outcome — the favourable resolution — is not an indicator external to the offence but its very constituent element, making it difficult to use it to infer the pressure that would have caused it without falling into circular reasoning. Added to this is the fact that the court expressly formulates an alternative hypothesis: the officials may have acted on their own initiative, seeking to curry favour with whoever then held or was about to hold power. That explanation, the court acknowledges, is equally compatible with the proven facts — and faced with two plausible hypotheses, the in dubio pro reo principle leaves little room for manoeuvre.
How can someone who is not a public official be convicted of malfeasance? The extraneus doctrine
David Sánchez Pérez-Castejón was neither a civil servant nor a public authority at the time of the events. He did not issue any of the resolutions declared unlawful. He was the beneficiary of the appointments, not the person who made them. And yet the ruling convicts him of malfeasance. How is that possible?
Malfeasance is a genuine special offence (delito especial propio): in principle, only a person holding the status of public authority or competent civil servant to issue the resolution — technically the intraneus (the insider) — can be the perpetrator. The private individual outside the administration — the extraneus (the outsider) — cannot be a direct perpetrator of the offence. But they can be convicted as an accessory.
The Criminal Code, in Art. 28, equates to perpetrators both inciters (inductores) — those who cause another to commit a criminal offence — and necessary accomplices (cooperadores necesarios) — those who contribute something without which the offence could not have been committed. The Second Chamber of the Supreme Court has been applying this doctrine to genuine special offences for decades. The ruling systematises it with reference to STS 277/2018 of 8 June (the NOOS case) and STS of 29 November 2024 (ROJ: STS 5977/2024), in four points:
First, criminal authorship of malfeasance cannot be attributed to someone who is not a public official. Second, the extraneus may participate as inciter or necessary accomplice; they are held liable for the same offence as the official — malfeasance — but as an accessory. This is what is called unity of the head of charge (unidad del título de imputación): there is no separate criminal offence for the outsider, but the same offence with the same nomen iuris. Third, whoever incites an official to issue an unjust resolution is liable as an inciter (Art. 28(a) CP); whoever contributes something decisive to that end is liable as a necessary accomplice (Art. 28(b) CP). Fourth, Art. 65(3) CP permits — on a discretionary basis — reduction of the extraneus's sentence relative to that of the official; but this reduction is not automatic and must never apply when the extraneus's culpability is equal to or greater than that of the intraneus.
This system — in which the extraneus is held liable for the same offence as the official — differs from the German and Italian approaches, which in certain special offences break that unity and convict the outsider under a different offence type. In Spain, the equivalence under Art. 28 CP between perpetrators and accessories means that the applicable sentence is, in principle, the same.
But there is a fundamental requirement: the extraneus must act with what the doctrine terms double dolus (doble dolo). The ruling states this clearly: "criminal censure as an accessory requires that the person so acting not only pursues the commission of the criminal act, but must also have the intention of participating — in the sense of collaborating in the criminal act of another. The accessory must act intentionally, so their contribution to the offence must be made with the knowledge that it provides the necessary assistance to the perpetrator for the commission of the criminal act."
The double dolus has two components: knowing that the official is issuing an unjust resolution, and wishing actively to contribute to that end. It is not enough, in other words, to benefit from an irregularity without having participated in it.
In the specific case, the ruling identifies the acts of Mr Sánchez that justify his conviction. They are those from the second block of facts, relating to the modification of his post through what was called a "change of nomenclature" (cambio de nomenclatura): "he cooperated by carrying out essential acts: he submitted the corresponding application in the merit-based competition for the award of the post created for him, he participated in the manipulated selection process by submitting documentation, and he deviated — in breach of the contractual obligations of his post as coordinator of conservatory activities — to operatic activities bearing no relation whatsoever to the original post for which he had been appointed, requesting and consenting that, under the guise of the so-called change of nomenclature of the post, an entirely different one was created."
On prior knowledge — a prerequisite for double dolus — the court infers that Mr Sánchez, "having prior knowledge that the post had been created for him, presented himself for the vacancy and attended the interview in order to simulate the formal legality of the procedure."
It is important to note that the conviction relates only to the second block of facts. Those in the first block — the original creation of the post — were time-barred, and the passage of time had extinguished criminal liability. Influence peddling, as already explained, is ruled out for lack of evidence.
Does the conviction entail a custodial sentence? No. The offence of malfeasance in office under Art. 404 CP does not carry imprisonment. The only punitive consequence is special disqualification from public employment or office and from the exercise of the right to stand for election (sufragio pasivo). For the extraneus, this sentence may further be reduced by one degree pursuant to Art. 65(3) CP.
A further point of practical significance: the ruling also rules out the concurrent application of malfeasance (Art. 404 CP) and unlawful appointment (Art. 405 CP) where the violation goes beyond ordinary legality and reaches constitutional status under Arts. 23(2) and 103(1) and (3) of the Constitution. In such cases, the applicable provision is exclusively Art. 404 CP.
There is harm, but no order to repay. Why?
Perhaps the most surprising decision in public debate is that the court convicts criminally but does not order repayment of the salaries received — and not because it considers that no harm was done to the public purse. The reason is strictly procedural, not substantive.
In this case, the only prosecuting party was the acusación popular — citizens or entities who may bring criminal proceedings even though they have not themselves directly suffered the harm. And the acusación popular, precisely because it is not the injured party, lacks standing to claim civil damages. The ruling states this unambiguously: "nor can the analysis of civil liability derived from the offence be undertaken, as the acusación popular lacks standing to bring such a claim. Such an accusation is exercised by those who do not hold the status of injured party and it is therefore not possible to entertain claims under Art. 110 of the Code of Criminal Procedure (LECrim)."
Who could have claimed? The Provincial Council of Badajoz itself, as the entity that paid the salaries, or the Public Prosecutor's Office, had it brought a prosecution including that claim. Neither did so in these proceedings.
The court also adds a substantive argument: even had there been a party with standing to claim it, recovery of public money would have fallen to the Court of Auditors (Tribunal de Cuentas) — the body specifically designed to enforce liability for misuse of public funds — not to the criminal courts. This is expressly established by Arts. 18 of Organic Law 2/1982 on the Court of Auditors and 49 of Law 7/1988 on its operation.
The practical consequence is significant: the criminal ruling does not close the door to recovery of the funds. On the contrary — the proven facts may have binding effect in proceedings before the Court of Auditors, where recovery could be ordered. The criminal conviction is, in that sense, the starting point of a second legal battle.
Conclusion: Five principles this ruling makes very clear
First. Malfeasance in office and influence peddling share the same protected legal interest — the proper functioning of public administration — but differ in their constituent elements: the former punishes the arbitrary ruling regardless of motive; the latter requires abuse of a position of superiority, proven moral pressure, and an intention to obtain a benefit. They may concur in respect of the same facts in ideal concurrence, but each requires its own proof.
Second. The difference between conviction on one count and acquittal on the other is essentially evidentiary. Malfeasance is established by the objective arbitrariness apparent from the administrative documents; influence peddling requires a concrete factual account of the act of pressure and its effect on the official's will. Conjecture or general context does not suffice.
Third. A private individual holding no public office may be convicted of malfeasance as a necessary accomplice or inciter — under the same criminal offence as the official (unity of the head of charge) — provided their contribution is causally decisive and they act with double dolus: knowledge of the unlawfulness of the principal's act and intention to contribute to it.
Fourth. The discretionary reduction available under Art. 65(3) CP for the extraneus is not automatic and does not apply where their culpability is equal to or greater than that of the official intraneus.
Fifth. The absence of a civil order does not mean the harm goes unaddressed. It is a consequence of the acusación popular's lack of standing and the reservation of that claim to the Court of Auditors — before which the criminal ruling may serve as a starting point.
