Unfortunately, for what it means, there is no citizen or businessman who does not know what prevarication is. However, we often make a colloquial and improper use of the term. But, is Prevarication, the explanation to any irregular conduct of the Administration?
It is relevant to say that the jurisprudence of the Supreme Court establishes the following as integral elements of the crime of administrative prevarication:
Requirements of the Prevarication Crime
First. A resolution issued by an authority or official in an administrative matter. It is, therefore, a “special crime” because of the perpetrator;
Second. It must be contrary to law, i.e., illegal;
Third. That this contradiction with the law or illegality, can manifest itself in the absolute lack of competence. In the omission of essential formalities of the procedure or in the substantial content of the resolution itself. It must be of such a nature that it cannot be explained with a minimally reasonable technical-legal argumentation;
Fourth. That causes a materially unjust result
Fifth, that the resolution is issued with the purpose of enforcing the particular will of the authority or official, and with the knowledge of acting against the law.
This, and nothing more than this, is the Crime of Prevarication (Administrative), according to the Jurisprudence of the Supreme Court: (STS 49/2010, of 4-2; STS 228/2013, of 22-3; and STS 411/2013, of 6-5).
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To conclude, we must say that the crime of prevarication appears in our criminal code in articles 404 and following.
Our penal code differentiates different types of prevarication. Criminalizing that of the civil servant in Title XIX.
If this article has been of interest, we also suggest you to read the following article published on our website: What is willful blindness?.
