These crimes are discussed in Chapter VI of Title X of Book II of the Penal Code, in the following articles:
“Article 355. A public servant who, abusing his position, orders or commits an arbitrary act against any person, not specifically defined in the criminal law, shall be punished with imprisonment of one to two years or its equivalent in day-fines or weekend arrest.”
Abuse of authority occurs when a public official, exceeding the regulatory framework that defines their functions, carries out arbitrary actions that affect someone. Such conduct implies that the public servant acts outside legal limits, ordering measures that infringe upon individual rights.
This type of crime represents an essential balancing mechanism, as it safeguards legal certainty between the government and citizens. Thus, it seeks to mitigate the excessive use of power by those who exercise functions on behalf of the State, preventing their powers from becoming instruments of oppression or injustice.
“Article 356. Any public servant who unlawfully refuses, omits, or delays any act inherent to their position shall be punished with imprisonment from six months to one year or its equivalent in fines or weekend arrest.
The penalty shall be increased by one-third to one-half when the omission occurs in cases of evictions ordered by a competent authority.”
The breach of duties by public servants occurs when an authority omits, refuses, or delays the fulfillment of legal obligations, especially those aimed at protecting fundamental rights such as private property.
The seriousness of this offense lies in the neglect of the duty to safeguard citizens’ interests and rights, which can lead to the violation of essential guarantees. Thus, the omission or refusal to act in accordance with the law represents a breach that undermines trust in the public function and in the protection of individual rights.
“Article 359. Anyone who, without title or appointment, usurps a public function, or who, being legally dismissed, suspended or separated from their position, continues to exercise it, or who usurps functions corresponding to a position different from the one they hold, shall be punished with imprisonment from two to four years.”
Usurpation of functions occurs when decisions are made or orders are issued through resolutions by an authority that lacks the legal competence to do so. This offense can be assessed by analyzing whether the action taken or the order issued truly corresponds to the powers of another authority. A clear example is when an administrative authority orders measures that, by law, can only be issued by a judicial authority.
In these cases, there is evidence of an improper appropriation of powers, which violates the principle of legality and the proper distribution of powers within the State.
At the level of the President of the Republic and Justices of the Supreme Court of Justice, Article 160 of the Political Constitution applies, which states that it is a judicial function of the National Assembly to hear accusations or complaints filed against the President of the Republic and the Justices of the Supreme Court of Justice, and to try them, if warranted, for acts carried out in the exercise of their functions that are detrimental to the free functioning of public power or that violate this Constitution or the laws.
At the level of certain public officials, Articles 40 and 482 of the Code of Criminal Procedure apply, granting jurisdiction to the Criminal Chamber of the Supreme Court of Justice over criminal proceedings against Ambassadors, Consuls, Deputy Ministers of State, Justices of the Superior Courts, the Ombudsman, Senior Prosecutors, the Director and Deputy Director of the National Police, Directors and Managers of Autonomous and Semi-Autonomous Entities, and those holding any other position with command and jurisdiction throughout the territory of the Republic or in two or more provinces that are not part of the same judicial district. The Attorney General’s Office will be responsible for the investigative activity in these criminal proceedings.
Ultimately, the path to a favorable resolution of these disputes requires rigorous preparation, specialized knowledge, and a robust legal strategy. At EVANS GROUP, we reaffirm our unwavering commitment to defending our clients’ rights with the experience and dedication of our team.