The Criminal Chamber of the Supreme Court has confirmed the sentenced to 12 years of disqualification imposed on the former mayor of The tank (Tenerife) Román Martín for a continuous crime of administrative prevarication in relation to the opening and operation of a Mini-residence and Day Center for the Elderly.
The court agrees with the judgment under appeal that the facts constitute the prevarication charged and affirms that the defendant “does not question in his appeal that his action was carried out outside of any procedure and with a total lack of competence, circumstances that do not he only knew, but they were repeatedly revealed to him by the City Council’s comptroller secretary and by the municipal technical architect, which shows the arbitrariness of the resolutions he adopted, the result of his whim and his personal and exclusive will”.
If the defendant considered that the establishment of a center for the elderly was necessary for the community, –indicates the Chamber– “the law provided for this a specific procedure to which he had to adapt his action”.
In this way, the Supreme Court continues in a note, “his behavior undoubtedly constitutes a contradiction with the legal system of such magnitude that it could be appreciated by anyone.”
Along these lines, it states that “it was not a mere illegality, which may be the product of an erroneous, mistaken or debatable interpretation, as so often happens in Law, but rather that the defendant acted in fact to do his will, with an absolute lack of competence, and with disregard of the most elementary rules of procedure, regardless of all administrative legality, broken down and detailed in the judgment of instance”.
ABUSE OF POWER
In the opinion of the Chamber, “it is a clear abuse of power that violated the basic pillar of a rule of law, such as the submission of public powers to the law.”
The Chamber also rejects the thesis of the appellant who maintained that the only thing he was pursuing was the defense of the general interest, in response to the demands of the residents of the municipality to have a center for the elderly.
In this sense, it warns that neither in the proven facts nor in the legal foundations of the judgments of instance and appeal it is said at any time that the defendant acted guided by a general interest, but that it is stated that “he imposed his capricious or arbitrary will to the detriment of the public interest”.
The court upholds in part the appeal filed by the convicted person who alleged, among other reasons, that the Provincial Court of Santa Cruz de Tenerife, whose sentence was confirmed by the Superior Court of Justice of the Canary Islands, imposed a penalty of special disqualification for employment or public office without specifying the jobs, positions and honors on which it fell.
The Chamber declares in its judgment, a presentation by Judge Carmen Lamela, that the penalty of disqualification must refer to the position of mayor, as well as to any other elective position of the local administration, the administration of the autonomous communities and the administration state.
