Act of Breach
Breach of Official Duty
I will never forget the day when I asked my lawyer to follow a certain course of action against a judge who was abusing power, and he replied to me: “If I do what you’re asking me to, I WILL NEVER WIN ANOTHER LAWSUIT IN THIS COURT!”
That’s not our way…
Breach of official duty occurs when a judge rules high-handedly, knowing that their ruling is unfair (whether through a sentence, a court order or an award). It is a serious crime, for it involves abuse of authority by those who hold a high legal position vesting special powers upon them. The more powerful they are, the more serious the crime. It is then logical to think that when a judge breaches his/her duty the crime is extremely serious.
If a judge is to be tried for this crime, the hearing will be conducted by another judge and the Spanish Departamento Disciplicinario del CGPJ (Disciplinary Commission of the General Council of the Judiciary). This involves the risk of incurring in unfair esprit de corps and thus make this crime effectively void. It is a legitimate claim that trials for breach of official duty should be heard by an independent jury… But there is no such thing in Spain.
For legal purposes, the Spanish Código Penal establishes four different cases:
1. Unfair ruling against the defendant after criminal prosecution, where the sentence has been carried out.
2. Unfair ruling against the defendant after criminal prosecution, where the sentence has not been carried out.
3. Unfair ruling against the defendant in a summary trial.
4. Any other unfair rulings or sentences. This rubric includes sentences and rulings in trials which are not criminal, and also those where the ruling was favourable to the defendant.
The act of breach of official duty also manifests an abuse of authority and is deemed to be a crime by both Criminal and Disciplinary Law (Spanish LOPJ), which seek to protect citizens as well as the offices of judicial administration.
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