Improper Use of Influence in Bolivia: Legal Analysis

Elements of the Offense of Improper Use of Influence

Qualified active subject

This offense may only be committed by a public servant or public authority. In other words, it is a special criminal offense that requires a specific legal status of the offender, linked to the exercise of public functions.

Conduct: taking advantage of the position

The typical conduct consists of directly or indirectly using the influence derived from the office held. This means that the agent must rely on their position to affect administrative or judicial decisions or actions.

A key aspect is that not every type of influence constitutes this offense. Case law has established that the influence must arise from the office itself, excluding influence of a personal, professional, or union-related nature.

Subjective element: intent

This criminal offense requires intent, understood as the conscious intention to improperly use public office in order to obtain a benefit. In line with the Political Constitution of the State, any punishable conduct must be fully proven in both its objective and subjective elements.

This means that the judge must verify the existence of a specific purpose aimed at harming the proper functioning of the public administration.

Obtaining an undue benefit

The mere use of influence is not enough; it is necessary for the agent to obtain a benefit or advantage, either for themselves or for a third party. This benefit must be directly related to the exercise of public office.

For example, if a public authority manages to secure a state contract for a relative through their intervention, this element is fulfilled.

Scope of the Criminal Offense According to Case Law

Direct connection with public office

The benefit must arise from specific acts linked to the office. Case law has clearly excluded situations in which the influence comes from personal relationships with no connection to public functions.

Active participation by the agent

The offense requires active conduct. A subjective perception or a mere assumption of influence is not sufficient; there must be verifiable acts attributable to the offender.

This ensures that public officials are not wrongfully punished based on mere suspicion, thereby safeguarding principles such as the presumption of innocence.

Completion of the Offense of Improper Use of Influence

The offense is considered completed when the undue benefit is effectively materialized. In other words, attempt or intention alone is not enough; the sought-after advantage must actually be achieved.

This criterion has been developed by the Supreme Court of Justice in several decisions, establishing that the obtaining of the benefit marks the moment when the offense is completed.

Judicial analysis must be based on objective elements. Conjectures or subjective perceptions are not enough to determine criminal liability.

The judge must verify:

• The existence of intent.
• Specific acts carried out by the agent.
• The relationship between the conduct and the benefit obtained.

The regulation of this offense has been strengthened by anti-corruption rules, as well as by judicial interpretations that have clarified its elements and scope.

In this context, complementary offenses such as influence peddling have also been introduced, broadening the framework for protecting public functions and punishing related conduct.

In summary, the offense of improper use of influence arises when a public authority or public official, acting with intent, uses their position to obtain an undue benefit directly linked to their functions. Case law has clearly defined its elements, requiring active conduct, the existence of a concrete benefit, and proper evidentiary support, thereby ensuring respect for due process and legal certainty.