Crimes Against Public Administration: Usurpation, Violence, and Bribery
Usurpation of Functions
Anyone who usurps a public function without a title or appointment, or the ability to provide military or police orders, or who, being stopped, suspended, or dismissed from office, continues exercising it, or exercises the functions of a different position than the one they have, will be punished by a term of imprisonment of not less than 4 nor more than 7 years and disqualification for 1 to 2 years under article 36, inc. 1 and 2.
Example: The crime of usurpation is committed when a municipal official tries to disturb the possession of aggrieved persons without a warrant. They act as an official instigator by an administrative act that determines this behavior.
Violence Against a Public Official
Anyone who, through public uprising, violence, or threat, prevents an authority, official, or public servant from performing their duties, or forces them to perform any act of their duties, or hinders them in the exercise of these, will be punished by deprivation of liberty for not less than 2 years.
Objective Criminality of Commissions
- Objective means used by the agent.
- The offense to what is its purpose.
Violence is the physical energy exerted or developed by the author on the person of the public official or servant. Violence results in physical acts on the taxable person (beating, violently taking the victim, etc.).
Threat is the announcement of imminent harm or prejudice to the life or physical integrity of the public official or public servant. The taxable purpose is admonished to fail to meet their duties. To determine if the threat has been enough to intimidate the victim, it will be essential to check whether the psychological capacity of resistance of the taxable person has been abolished or substantially invalidated (psychological skills). It requires the following conditions:
- The victim must believe that there is a strong possibility of carrying out the harm with which they are threatened.
- The taxpayer must believe that by not resisting, or doing what the agent demands, they will avoid the harm.
1. The announced threat must be intended to cause harm to the life or physical integrity of the people, whether of the victim or third parties.
2. The violence must have a specific purpose: to try to impose the will of the criminal perpetrator of the offense on the functional authority of the official or authority. The threat must be used without a public uprising.
Commission Arrangements
- Prevent: To prevent the exercise of the functions of the authority, public official, and public servant.
- Bind: The result occurs when the agent, through violence or threat, coerces, imposes, submits, compels, or forces the public official or public servant to perform an act of their own functional office.
- Clogging: The agent impedes, hinders, obstructs, interferes with, or disturbs the public official or public servant in the performance of their functions.
Advertising
2.1 Of Legal Protection: The proper functioning of public administration, that is, the free exercise of the function and completion of public services.
2.2 Perpetrator: It does not require any particular condition or quality in the agent, so anyone over 18 can be an author of the crime.
2.3 Taxable Person: The State is considered the holder of the legally correct public administration. While those directly attacked by the criminal behavior will be specific taxpayers.
Subjective Intent
It is a criminal offense with willful intent, so it also requires another additional subjective element: the agent’s intention to impose their will rather than the will of the legitimate public official and public servant.
Antijuridicidad (Unlawfulness)
Consummation
The assumptions of preventing and forcing are consumed when the agent achieves their purpose, which is to prevent the public official and public servant from exerting their functions or to force the public official or public servant to practice any act of their duties. When it is consumed with only hindering and obstructing, it is a crime of mere activity; it is not necessary to prove availability.
Example: The conduct of municipal officials who perform acts to carry out an eviction constitutes the crime of violence and resisting arrest, despite the existence of a court order suspending the eviction.
Violence to Prevent the Exercise of Their Functions
Anyone who employs intimidation or violence against a public official, or against the person who assists them under a legal duty or requirement, to prevent or hamper the implementation of an act itself or the legitimate exercise of their duties, shall be punished by imprisonment of not less than 2 nor more than 4 years, with the provision of community service for eighty to 160 days.
Example: Processing stubborn resistance opposed to the intervention of police and verbally attacking a police officer constitutes the crime of violence and resisting arrest.
Resistance and Disobedience to Authority
Anyone who disobeys or resists the order issued by a public official in the exercise of their powers, except in the case of one’s detention, shall be punished with imprisonment not exceeding two years.
Example: The processed individual, by attempting to flee after their vehicle collided with a parked mobile, was intervened by a police officer. Resisting being taken to the police delegation and refusing to show documents constitutes the crime of resisting arrest.
Passive Bribery
A public official or public servant who accepts or receives a donation, promise, or any other advantage or benefit to perform or omit an act in violation of their obligations, or as a result of failing them, shall be punished by imprisonment of not less than 5 nor more than 8 years and permanent disqualification under article 36, inc. 1 and 2.
A public official or public servant who directly or indirectly requests a gift, promise, or any other advantage or benefit to perform or omit an act in violation of their obligations, or as a consequence of failing them, shall be punished by imprisonment of not less than 6 nor more than 8 years and disqualification under article 36, inc. 1 and 2.
A public official or public servant who conditions their functional behavior arising from office or employment for the delivery or promise of a donation or advantage shall be punished by imprisonment of not less than 8 nor more than 10 years and disqualification under article 36, inc. 1 and 2.
Improper Passive Bribery
A public official or public servant who accepts or receives undue donations, pledges, or other undue advantage or benefit to perform an act proper to their office or employment, without betraying their obligation, or as an effect of having already done so, will be punished with imprisonment of not less than 4 nor more than 6 years and disqualification under article 36, inc. 1 and 2.
An official who directly or indirectly requests an undue donation, promise, or any other advantage for themselves to perform an act of office or employment without failing their duty, or as a result of having already completed it, will be punished with imprisonment of not less than 5 nor more than 8 years and disqualification under article 36, inc. 1 and 2.
Specific Passive Bribery
A judge, arbitrator, member of an administrative tribunal, or any other similar to the foregoing who, on any other basis, accepts or receives donations, pledges, or any other advantage or benefit, knowing it is done in order to influence or decide a matter submitted for consideration or competition, will be punished with imprisonment of not less than 6 nor more than 15 years, disqualification under article 36, inc. 1 and 2, and 80 to 365 days of fine.
A judge, arbitrator, member of an administrative tribunal, fiscal expert, or any other similar to the previous ones who, in any form, directly or indirectly requests a donation, promise, or any other advantage or benefit in order to influence the decision of a matter which is subject to their knowledge, shall be punished by imprisonment of not less than 8 nor more than 15 years, disqualification under article 36, inc. 1 and 2, and 365 to 370 days of fine.