Criminal And Administrative Offenses: A Legal Analysis
1. Official Criminal Offenses
Question: Can a person whose appointment is revoked by the courts due to lacking qualifications be considered an official for criminal purposes?
Answer: For immediate provision of law, someone performing public functions without the required qualifications is not considered an official for criminal purposes. However, this doesn’t exclude the possibility that the Criminal Code might sometimes consider the quality of the individual performing certain functions. A different question arises regarding the *de facto* official, which includes any person who, having been appointed or elected legally, does not meet the necessary conditions. In this case, if the individual is considered an officer under criminal law, they may commit crimes like embezzlement or violation of secrecy.
2. Administrative Prevarication
Question: Does a consultant advising a University Rector on an unjust resolution commit administrative prevarication?
Answer: Literature suggests a report isn’t a resolution, thus, the advisor cannot be considered the author of prevarication, without excluding potential liability for the title-holder. Case law adopts the same position, except for binding reports.
3. Municipal Official Misconduct
Question: What crime is committed by a municipal official who delays issuing a necessary registration certificate?
Answer: This could be a crime of breach of trust by default. The question is whether the registration certificate is considered a resolution. If it’s an administrative act affecting citizens’ rights, then it is. Case law supports the default type when an administrative action is imperative, like enabling a right or overriding a restriction. If the certificate is a report, then the issuer cannot be considered the author of prevarication. However, it’s reckless conduct leading to disciplinary action and liability. The reasons for the delay need investigation.
4. Infidelity in Custody of Documents
Question: Does a police officer who destroys a complaint to cover it up, but fails because the individual kept a copy, commit infidelity in the custody of documents?
Answer: According to Article 413 of the Criminal Code, the authority or public official who knowingly steals, destroys, mutilates, or conceals documents entrusted to their care commits this crime. It must be determined whether the officer was specifically entrusted with the custody of these documents to impute this offense.
5. Unlawful Detention
Question: What crime(s) are committed by a judge who holds a citizen for three months without a hearing?
Answer: This could be reckless judicial trespass (refusal to judge, Article 448 of the Criminal Code) or malicious delay (Article 449), if the delay serves an unlawful purpose.
6. Delaying Prison Supervision
Question: What crime is committed by a court delaying prison supervision with unnecessary procedures?
Answer: This could be reckless judicial prevarication or malicious delay (Article 449 of the Criminal Code), if the delay serves an unlawful purpose.
7. Defenses for Failing to Prevent Crimes
Question: Does the defense of necessity apply to the crime of failing to prevent certain crimes? What about duress?
Answer: The provision requires the ability to prevent crime without risk. Necessity is a valid defense. Duress is also a possible defense.
8. Concealing a Relative
Question: Does Article 454 apply to those who conceal a relative and other participants?
Answer: Yes, it applies to anyone who, knowing about a crime without participating, aids the perpetrators after the fact, not for commercial gain.
9. Abuse of Secret Information and Bribery
Question: What offense(s) are committed by a police officer who warns a drug trafficking network about an operation in exchange for cocaine?
Answer: This constitutes abuse of secret information (Article 422 of the Criminal Code) and passive bribery (Article 419).
10. Embezzlement and Misappropriation
Question: What crime is committed by a civil guard who pockets traffic ticket money and a postal officer who keeps a cashier’s check?
Answer: The civil guard commits embezzlement (Article 433 of the Criminal Code). The postal officer commits misappropriation of private goods temporarily managed by the Administration.
11. Disobedience
Question: Does a mayor refusing to comply with a government order due to a jurisdictional dispute commit disobedience?
Answer: No. Disobedience applies to lawful orders within the authority’s competence. If the order is outside their competence or violates the law, disobedience is not a crime.
12. Requirement for Superior Authority
Question: Does Article 412.1 require the authority to be superior to the required official?
Answer: No. Officials must cooperate with authorities requiring assistance within their powers. No hierarchical relationship is needed.
13. Perjury
Question: Does a person commit perjury by lying in court?
Answer: No. Defendants have the right to remain silent and not incriminate themselves, so they are not liable for perjury in such cases.
14. Unjustified Absence
Question: Is an absence due to a dental emergency, without prior notification, an offense under Article 463?
Answer: The cause seems just. It would be a justification if the absence and lack of notification were promptly reported to the court.
15. Violation of Imprisonment
Question: Does rejoining prison after an exit permit violate imprisonment?
Answer: Yes. Exit permits are granted under the condition that the prisoner returns. Failure to return constitutes a violation.
16. Prohibition of Approach
Question: Does a convicted person approaching a domestic violence victim, at the victim’s initiative, violate a prohibition of approach?
Answer: Yes. The victim’s consent doesn’t negate the breach. However, for precautionary measures, the victim’s consent might demonstrate that protection is no longer required.