El delito de prevaricación en el urbanismo y la ordenación del territorio

Abstract

The offense of “breach of official duty” is by no means novel or newly coined. It is an offense with some tradition in our criminal legal system, which has evolved over time. Possibly the last stage of the evolutionary process of this offense has to do with the emergence of the protection of the environment in the Criminal Code, which resulted from the third paragraph of Article 45 of the Spanish Constitution. At the same time, it relates also to the second paragraph of the above-mentioned constitutional provision, which grants the administration certain powers, but also unavoidable duties, as maximum sponsor of the environment and of the natural resources existing in our country. With the enactment of the Criminal Code of 1995, environmental protection extended —from the strict context of emissions and discharges of former Article 347 bis—, to cover a long list of behaviors, including many related to historical heritage and territorial planning. Since administrative irregularities on this matter have been substantial and relatively frequent in Spain, when the legislators decided to approach punishment for these offenses through criminal law means they decided to incorporate three special figures for the breach of official duty. These are the actual environmental breach, the breach in historical heritage and the breach in land planning and urban design. These three figures are the latest stage of the evolutionary process of the breach of official duty. From these three figures, the breach in spatial planning, or urban development is without doubt, the most applied by the courts and, consequently, the one that has produced more jurisprudence thus far. In these pages you will review the entire process as well as the most current case law that has developed on this controversial figure, given the prominent role that the courts have been playing in the evolutionary process involved.