The Criminal Court No. 2 of Santa Cruz de Tenerife issued on May 4, 2022 a sentence that absolves of an alleged crime of continued prevarication to the former mayors of The Victory of Acentejo Harold Martin (CC) Y Jose Fermin Correawhat belonged to the PP. The magistrate-judge rules out that both committed a crime for two alleged irregular hiring denounced by another former mayor, the socialist Manuel Correa. Both the private prosecution and the prosecution they requested for both the penalty of ten years of special disqualification from employment or public office.
The preliminary proceedings in this case were instructed by the Court of Instruction No. 4 of La Orotava as a result of several contracts executed between 2011 and 2013, when Jose Fermin Correa Martin, held the public position of first deputy mayor and councilor for Social Welfare of the City Council of La Victoria de Acentejo. Powers that had been delegated to him on June 15, 2011 by decree of the mayor, Harold Martin Gonzalez (DC).
The sentence concludes that “It has not been duly proven that the accused both acted with partiality, with full knowledge that the agreed resolutions were contrary to current legislation and with contempt for it” when executing several temporary contracts, whose amount did not exceed that established for minor contracts, of people linked to the electoral list of the PP in that mandate.
Fermin Correaas councilor for Social Welfare, and by virtue of delegated powers, used the figure of the minor contract to contract legal services for his area from a lawyer who participated in the list of candidates for the municipal elections of 2011. Subsequently, this same person was hired through a temporary employment company, “without any record of it being ordered by the mayor Harold Martin”.
Besides, Fermin Correa contracted the services for the Department of Social Welfare of a driver whose sentimental partner was also part of the electoral list of the PP in 2011. The figure of the minor contract was also used and the payment was made through the presentation of successive invoices. Later, he was rehired through the same temporary agency.
Despite these links, the ruling determines that “It has not been duly proven that the accused both acted with partiality, with full knowledge that the agreed resolutions were contrary to current legislation and with contempt for it (…). Nor that the figure of the minor contract be used to avoid a true employment contract or an ordinary contract and thus avoid the existence of publicity in the hiring and the concurrence of candidates, without the effective drafting of a contract, without publicity and without the concurrence from any other candidate. There is also no proof that the City Council ordered that company to hire these two people, nor that the mayor knew them before they were hired.
In the case of Jose Fermin Correa he is acquitted for a violation of the right to effective judicial protection, to a process without undue delay and to the legally established procedure and with all the guarantees, since “the investigative phase should have ended in December 2014, unless it had been urged by the Prosecutor’s Office the extension and thus it would have been agreed within the term in the terms provided in article 324 of the Law of Criminal Procedure (Lecrim). Despite this, investigation procedures were ordered and carried out outside said 6-month period henceforth, being the extemporaneous agreed extension what should lead to declaring the nullity of all the tests carried out”.
After the appearance in 2014 of Manuel Correa Afonso In the Prosecutor’s Office that initiated the preliminary proceedings, preliminary proceedings are initiated in the Court of Instruction No. 4 of La Orotava on June 2, 2014, therefore, taking into account the wording of the aforementioned article 324 of the Lecrim, “the term of the instruction phasegiven the absence of any decision to extend or prolong said term or declaration of secrecy, ended in December 2014 and in the present case it is not until January 20, 2015 when the Investigating Court agrees that José Fermín Correa be given a statement as a defendant. Outside, therefore, the aforementioned 6-month period. The extension was not requested by the Public Prosecutor’s Office until April 12, 2016 and was agreed by order dated June 8, 2016.”.
The magistrate acknowledges that in this case “there was no procedural rigor of compliance with the norm In this case and with this legislative option, what it is about is avoiding the procedural inactivity that occurred in this case. And clearly and palpably”. And he recalls that “the legislator has wanted to set a deadline and frame the instruction procedure within it, conditioning the validity of the proceedings carried out to be carried out within that period, and those executed outside of it being invalid”
The judgment emphasizes that “Once the impossibility of continuing the investigation beyond the initial period of six months has been declared, it is no longer possible to charge, accuse and judge Fermín Correa”. However, it is added that “once the stage of the oral trial was reached, and the nullity of the procedural actions was declared since the issuance of the Transformation Order, the retroaction of the actions and the return to the Court of Instruction did not make sense, because it was no longer possible to reopen the caseTherefore, in that situation, it was only appropriate to issue an acquittal sentence in the absence of a valid accusation.”
Taking Fermín Correa’s statement after the deadline six months from the initiation of the preliminary proceedings, forces the judge to issue an acquittal.
Regarding the nationalist Harold Martinthe sentence indicates that “it has been amply proven that there was no file and only decrees of the mayor authorizing payment prior to an invoice, and that Haroldo Martín did not intervene in the contracting, but Jose Fermin Correa based on delegated powers. That the amount did not exceed what was allowed for minor contracts, that all the contracts that were investigated in which Haroldo Martín did intervene were regular, and that when the objection was lifted for exceeding the time in Iván’s contract, the mayor gave the order to terminate that hiring, without it having been proven that Haroldo Martín participated or proposed the workers to the temporary employment company for their subsequent hiring.”
The magistrate concludes that “of the test carried out, it has not been proven that the defendant Haroldo Martín, in the exercise of his powers and in relation to the contracts described above, incurred in the criminal elements of the type of prevarication of article 404 of the Penal Code. And this because he did not sign administrative service contracts, legally provided for specific needs and jobs, in order to hire staff nor did he violate the principles of access to the public function.
As there is no record, according to the magistrate, “the spirit of illegality and arbitrariness in the actions of the accused, who authorized by decree the payment of the services provided by said workers, is not considered to have incurred in the crime for which he is being prosecuted”. In conclusion, he remarks that “it has not been proven that the defendant Haroldo Martín, in the exercise of his functions, knowingly issued decrees of the lack of legality.”
Both, who have now left the exercise of politics, are acquitted of the continued crime of prevarication for which they had been accused, with an ex officio declaration of the costs caused by the judicial proceeding.
