For several years now, numerous procedures for demanding criminal liability from authorities and officials in the matter of public procurement have been resolved. The most common crime is prevarication in administrative contracting. And it is that, Juan Bravo Murillo already warned in the exhibition he made to Queen Elizabeth II, in 1852, of the danger of public contracting: “Madam: Competently authorized by VM, with the prior agreement of the Council of Ministers, the Treasury presented to the Cortes on December 29, 1850, a bill of contracts on public services, in order to establish certain healthy obstacles, avoiding abuses. easy to commit in a matter of dangerous stimuli, and to guarantee the Administration against the shots of slander … “. But when are we in the presence of criminal behavior and when are we not? Fortunately, not every administrative offense, not every irregularity in the processing of a file, not every omission of a legally required procedure can be classified as constituting a crime of prevarication. But the line between an administrative irregularity and a crime is somewhat blurred. The crime of administrative prevarication, according to the provisions of art. 404 of the Penal Code, refers to “the authority or public official who, knowing its injustice, dictates an arbitrary resolution in an administrative matter, will be punished with the penalty of special disqualification for employment or public office and for the exercise of the right of passive suffrage for a period of nine to fifteen years ”. The injustice contemplated in the Penal Code supposes a “plus” of contradiction with the legal norm that is what justifies the intervention of the criminal law. The jurisprudence has maintained that for an administrative resolution to be classified as a crime of prevarication, it is necessary that its illegality be “evident, patent, flagrant and clamorous”, drawing attention to the question of the easy knowability of the contradiction of the act with the right. To assess the existence of a crime of prevarication, a reiterated jurisprudence (see SSTS 1021/2013, November 26) has indicated that it will be necessary: a) a resolution issued by an authority or official in an administrative matter;b) that it is objectively contrary to the law, that is, illegal;c) that this contradiction with the law or illegality, which may manifest itself in the absolute lack of competence, in the omission of essential steps in the procedure or in the substantial content of the resolution itself, is of such an entity that it cannot be explained with a minimally reasonable technical-legal argumentation;d) that causes a materially unfair result;e) that the resolution be issued in order to enforce the particular will of the authority or official and with the knowledge of acting against the law by arbitrarily eliminating free competition in an unjustified exercise of abuse of power. In this sense, it is not mere illegality but arbitrariness that is sanctioned. As we can see, administrative prevarication involves “knowing arbitrariness”. Mere illegality is not enough, since the administrative regulations already foresee cases of nullity controllable by the contentious-administrative jurisdiction without the application of Criminal Law being necessary in any case, which will thus be restricted to the most serious cases (STS 359/2019 , of June 15). And, although not every absence of procedure leads to the criminal type, it will have criminal relevance if in this way what is sought is to eliminate the mechanisms that are established precisely to ensure that its decision is subject to the purposes that the law establishes for the specific administrative action in which it adopts its resolution. They are, in this sense, essential procedures (STS nº 331/2003, of March 5). To appreciate the contradiction of the administrative act with the law, the courts have stated that: – it must be a blatant and gross contradiction (STS of April 1, 1996),– or resolutions that go beyond the legality in an evident, flagrant and resounding way (SSTS of May 16, 1992 and April 20, 1994),– or of a deviation or distortion of the law in such a rude, clear and evident way that the extra unlawfulness required by the criminal offense is appreciated (STS of May 10, 1993),– Or the arbitrary exercise of power, when the authority or the official issue a resolution that is not an effect of the Constitution and the rest of the legal system but, purely and simply, a product of their will, unreasonably converted into an apparent source of regulations, and the result is an injustice, that is, an injury to a right or the collective interest, and when the arbitrariness consists in the mere production of the resolution -because its author does not have legal competence to dictate it- or in the non-observance of the essential procedure to which its genesis must conform (STS of October 23, 2000). The existence of an arbitrary resolution may be appreciated when omitting the procedural requirements mainly involves the circumvention of the controls that the procedure itself establishes on the merits of the matter (STS 743/2013, of October 11 and STS 152/2015, of October 24, February, among others). Regarding the concept of “administrative resolution”, the Supreme Court, in its judgment of February 24, 2015, establishes that said concept “is not subject to a rigid formal scheme, even admitting the existence of verbal acts, without prejudice to its constancy written when necessary. A resolution is understood to be any administrative act that involves a declaration of will of decisive content, which affects the rights of the administered or the community in general, either expressly or tacitly, in writing or orally, excluding political acts. or government as well as the so-called procedural acts (eg reports, consultations, opinions or proceedings) that implement and order the procedure to make the final resolution viable. Is it possible to maintain that there is a criminalization of administrative law? The doctrine on some occasions has maintained that currently the cases previously dealt with with legal-administrative techniques have been criminalized or, in other words, the use of the penalty at the service of the…