All lawyers who have ever had to deal with a public agency on behalf of our clients always ask themselves: Is the Administration fair when resolving a claim when its own interests are at stake?
The vast majority of legal professionals would answer no; the Public Administration is usually neither objective nor fair when it comes to resolving issues that affect its own interests.
Another question that always comes to mind when a financial claim is made against a public agency is: Are there external third-party interests that could influence the outcome of the administrative resolution?
It is not the intention of this article to delve deeply into the type of administrative misconduct under Article 404 of the Penal Code and its connection with the legal theory of crime, as there are already numerous high-level doctrinal publications analyzing this issue. However, from a brief description of the objective and subjective elements of the offense, we will try to relate this conduct to the behavior that the Administration could exhibit in the face of a claim and its potential consequences. For this purpose, and solely for informative purposes, we will start from an imaginary scenario in one of the areas with the highest number of claims:
A financial claim is filed due to medical malpractice against a public health service hospital. The claimant, lacking the financial means to appoint a medical expert to analyze the possible negligence and another expert to assess the damages suffered, relies on the Administration's objectivity to resolve the case based on the medical evidence available.
Upon receiving the financial claim, the hospital requests a report from the doctors who treated the patient to explain their actions. Additionally, the hospital notifies its civil liability insurance, which appoints its trusted expert panel to evaluate the case. During one of their regular meetings, the insurance company's claims manager meets with various stakeholders including the Director General of the Department, the hospital manager, and the appointed expert. In this meeting, they conclude that there was an abnormal operation of the public service due to medical error, and that the patient has sustained injuries. However, at the insurance manager's request, citing negative impacts on their policy and significant reputational harm to the hospital, they decide not to uphold the patient's claims because they anticipate the patient will not pursue legal action. They decide that this time the decision will be explicit—in previous similar cases, they had decided presumptively through negative silence—and they will justify the absence of violation of the lex artis ad hoc.
Likewise, the Legal Advisory Committee of the Community is asked to prepare an opinion explaining from a legal perspective why the claim should be rejected; this opinion is prepared weeks later after receiving the expert report that justified the correct action of the public service at the insurer's request.
Finally, the Director General of the Department of Health issues a decision denying the administrative procedure for financial liability. The patient asks if they can obtain legal aid, but it is denied, so facing the costs of experts and lawyers, they decide not to pursue judicial proceedings and do not receive compensation.
I) Protected Legal Interest
The protected legal interest is the correct and normal functioning of the Administration, in accordance with the system of values established by the Constitution.
II) Specificity of the Offense
Administrative misconduct is a specific type of offense. The active subject in the offense of administrative misconduct must be an authority or public official in accordance with Article 24 of the Penal Code, regardless of their administrative category. Regarding the status of the active or passive subject of personnel linked to the Administration, the Second Chamber of the Supreme Court states that: the criminal concept of a public official is considered as such "anyone who, by immediate disposition of the law or by election or by appointment of the competent authority, participates in the exercise of public functions." For the status of an official, "neither the selection requirements for entry, nor the category, however modest, nor the system of remuneration, nor the legal and regulatory status, nor the pension system, nor even the stability or temporality" matters.
III) Arbitrary Decision
The fundamental objective element of the offense is that an arbitrary decision is made in an administrative matter. According to the Second Chamber of the Supreme Court, any administrative act that constitutes a declaration of will, with decisive content affecting the rights of the governed and the community in general, is an administrative decision, regardless of its form. the essential thing is that it possesses in itself an executive effect, and that said decision must concern an administrative matter.
As arbitrary, the doctrine and jurisprudence have always clarified that it must go beyond mere illegality. It is not enough that we find ourselves with an illegal and contrary decision; arbitrariness must be notorious and evident, always bearing in mind criminal law as a last resort.
Therefore, it is necessary to distinguish -although it is usually complex- between mere illegality when it can be remedied; and an arbitrary decision, which requires a deviation of power; of greater seriousness. The contradiction with the law or illegality may consist of the complete lack of competence, the omission of essential procedural steps, or derived from the substantial content of the decision when it is of such magnitude that it cannot be explained with minimally reasonable technical-legal arguments.
Thus, the jurisprudence of the Supreme Court has maintained that it will be arbitrary: "because it contains no reasoning; because it has been issued without decision-making jurisdiction or by a manifestly incompetent Organ; and, because it omits essential procedural steps."
In other words, we cannot conclude that we are facing an arbitrary decision when there is only a mere contradiction with the Law. The principle of minimal intervention limits the criminal type to the most serious violations of legality; in which the decision is not only illegal; it is unfair and arbitrary, with administrative jurisdiction competent to sanction other cases.
IV) Knowing its Injustice
Article 404 of the Penal Code requires the author to know that he issues an arbitrary decision, emphasizing in the type the phrase knowingly of its injustice; requiring direct first-degree intent; ruling out reckless commission or eventual intent. Therefore, intent is required; full knowledge and certainty that at least, an arbitrary decision is being made; unequivocally malicious in a clear exercise of abuse of power.
The Supreme Court has understood that we are facing this subjective element when the active subject acts with total disregard for the rules in the decision-making process and with the aim of enforcing the particular will of the authority or official and with the knowledge of acting against the law.
V) Action and Omission
Beyond active commission, there has been discussion in doctrine and jurisprudence about the inclusion of improper omission as a typical conduct of administrative misconduct. The Second Chamber of the Supreme Court has exceptionally accepted the form of commission by omission; admitting that when it is imperative to take action; the ommissive departure from legality can be equivalent to issuing a decision.
"the ommissive form of prevarication has been accepted by the case law of this Chamber and still acquires even greater justification and reasonableness in the cases of the actions of responsible officials in environmental actions. Thus, the omission of the mandatory environmental impact report, of any industry that installs in the territory over which it has jurisdiction in this matter, constitutes, by the deliberate inactivity, a decision or attitude that equates to the granting of authorization or license, by way of tolerance and permissiveness and with blatant infringement of environmental regulations."
VI) Participation and the Figure of the Extraneus
Misconduct is a specific and private offense, so people outside the public function cannot be considered authors. Therefore, third parties can be classified as participants in the form of induction or necessary cooperation under the well-known figure of the extraneus- essential to explain the participation of third parties in the offense of administrative misconduct- with the possible reduction of penalty under article 65.3 of the Penal Code.
On the involvement of the inducer, the Supreme Court holds that it is based on making another person the criminal decision, directly and conclusively.
VII) Activity or Result Crime
Beyond the traditional doctrinal debate on whether the criminal type is an activity or result, the important thing would be to differentiate between material and legal results; not requiring the type of specific material result, that is, possible specific damages produced derived from the activity or inactivity, which could lead to the commission of other crimes. However, part of the doctrine and jurisprudence have required as a requirement that the arbitrary decision knowingly of its injustice has caused a materially unjust result.
After this brief analysis, we must analyze whether the case we presented at the beginning could be fitted in the penal system.
The first question is whether the decision to dismiss the claim for medical negligence in a public medical center can be considered an administrative decision. Well, there is no doubt that this decision meets the jurisprudential requirements:
- It is an administrative act.
- It constitutes a declaration of will on an administrative matter.
- It has a decisive and executive content that affects the right of a governed.
More doubts arise about the nature of the opinion of the Legal Advisory Committee. In this case, it seems that this report would not have a decisive and executive effect, since it will be the decision of the Director General that will decide on the patient's claim, so it does not seem to constitute an administrative decision for the crime of administrative misconduct, without prejudice to possible administrative and disciplinary responsibilities.
However, this decision must go beyond mere illegality; it must be unjust and arbitrary. In the case we presented, the Director General issued the decision knowing that there was an error resulting in damages attributable to the hospital. Beyond that in a case of professional medical malpractice, it is always customary for even experts to disagree; in this case, it seems likely that arbitrariness should be considered as notorious and evident. The decision to issue this dismissal would seriously violate the legality and rights of the governed.
Regarding the subjective aspect of the offense; the case suggested that there was connivance between the various agents forming the claims committee to agree on its dismissal. It seems undeniable that the Director General would have acted with full knowledge that the decision he was making was unjust, as the experts confirmed that the patient had suffered medical negligence. In addition, as we have already mentioned, we could consider that the conscious refusal to issue the decision, relying on the administrative silence tool, could also constitute a crime of misconduct.
On these last two issues, the question arises that gives title to this article: Does the State have the right to lie?
Whenever a claim is filed against the Administration, there is a doubt whether it will be objective in the analysis of the case and whether it can lie and avoid, for example, providing documentation contrary to its interests as part of its right to defense. The reality is that the Public Administration must respect Article 103 of our Constitution, which states that it serves the general interests objectively.
That is, the State is not entitled to the rights of Article 24.2 of the Constitution such as the right not to self-incriminate or to provide only relevant evidence for its defense when it protects against a claim. Unlike a natural or legal person as private parties, who are protected by these rights; a public body should not fail to tell the truth in "strict terms of defense," given its constitutional duty to be fair when resolving a claim, so this lack of objectivity would not be justified by the pretext of achieving a public interest or being more beneficial to the community.
The biggest doubts in this case arise to resolve questions of authorship and participation. It is indisputable that the Director General as an authority or public official who issues the decision could be the author of the misconduct. However; what role do the other agents involved play?
The insurance claims manager as an extraneus, could be considered an inducer to misconduct. It is he who insists and causes the authority to issue the decision dismissing the claim. However, the insurance company could not be criminally liable for not being the administrative crime of misconduct within the known numerus clausus under Article 31 bis, although it could be civilly liable subsidiary under Article 120 of the Penal Code.
On the involvement of the hospital manager and the expert, there would be more doubts. The distinction whether it is as an accomplice or necessary accomplice -beyond entering into analyzing different doctrinal currents-, would be marked by the relevance of their cooperation. It would be essential to determine if the offense could have been committed or not without the participation of the participant.
In this case, the expert report could be a key piece to execute the misconduct, without which perhaps the decision could not have been effectively motivated, so we could be facing necessary cooperation -beyond possible liability for the biased valuation contained in the report-. In terms of management, their specific involvement in the Director General's failure should be analyzed, although prima facie it would be more closely approximated to complicity.
Similarly, regarding the member of the Legal Advisory Committee issuing the opinion, it would be necessary to analyze if their contribution was essential. For the case that the decision could have been made independently of their legal assessment, their involvement would be as an accomplice.
In summary, this article has tried to outline from an imaginary scenario the possible criminal responsibility of the agents who commonly intervene in a financial liability procedure; arriving at the main conclusion, that the Administration must be fair when it decides, even when its own interests are at stake.
Ignacio Montoro Iturbe-Ormaeche
[1] See, among others: STS 2361/2001 of December 4 and STS 537/2002 of April 5.
[2] See, for example: SSTS of January 28, 1998; February 12, 1999; June 27, 2003; November 14, 2003; April 9, 2007; December 1, 2008; July 1, 2009; February 2, 2011.
[3] See, among others: SSTS 813/98, of June 12; 943/98 of July 10; 1463/98, of November 24 and 190/99, of February 12.
[4] See, for example: STS of November 19, 2008; December 4, 2013; or September 22, 2003.
[5] See: STS of October 23, 2000 and November 2, 1999.
[6] STS of November 24, 2015.
[7] Non-jurisdictional Plenary of the Supreme Court of June 30, 1997.
[8] STS 449/2003 of May 24.
[9] See, among others: SSTS 501/2000, of March 21; 76/2002, of January 25; 627/2006, of June 8; 222/2010, of March 4; 303/2013, of March 26; and 773/2014, of October 28.
[10] STS 787/2013, of October 23.
[11] See, among others: STS 449/2003 of May 24.
[12] As an example: STS 1658/2003.
[13] See, among others: STS 821/2012 of October 31; 561/2012 of July 3; 960/2009 of October 16 or 120/2008 of July 27, 2008.
