The Criminal Chamber recognizes “irregularities” by raising almost a hundred objections but rules out a crime of prevarication
SANTA CRUZ DE TENERIFE, March 8 (EUROPA PRESS) –
The Criminal Chamber of the Supreme Court has declared the file of the case against the senator of the Canary Islands Coalition (CC) and candidate for the Presidency, Fernando Clavijo, considering that there are no indications of a continuous crime of administrative prevarication in relation to the decrees that he issued, from 2011 to 2014, being mayor of La Laguna (Tenerife) to lift the objections of the General Intervention.
After analyzing the reasoned statement sent by the head of the Investigating Court Number 4 of La Laguna, in which she specified the evidence found in the investigation against Clavijo –currently registered–, the court concludes that the facts collected do not have the appearance of a crime for understanding that the resolutions adopted by the then mayor (almost a hundred), “although they may be irregular, were not arbitrary.”
The Chamber points out that it does not seem that it can be argued that the corporation’s repeated actions with mechanisms that force the normal operation of public procurement, “do not faithfully comply with the law, even though, decree by decree, and with the support of the opinion of an administrative expert from the academic world that cannot be disdained, the defense tries to save through interpretations, some more acceptable than others, legal correctness and support in the legality of each decision, a support that the corresponding services also took care to consign managers when rejecting the repair”.
In his 15-page order and made public this Wednesday, the Supreme Court explains that there is no doubt about the status of authority of the official who issued the decrees nor about the nature of the decrees, which were genuine administrative resolutions, but concludes that they were not They can be branded as arbitrary.
In accordance with its jurisprudence, it recalls that the crime of prevarication is not born with any administrative resolution contrary to legality or that deviates from it, but that “the resolution is required to be arbitrary, that is, that it borders on what is grossly illegal to respond to the mere whim or voluntarism of the person who dictates it, who does not care about its greater or lesser adjustment to a legality that it despises”.
The Chamber also adds that “this characteristic does not seem to be predicable” of the resolutions being analyzed.
“They may be irregular, but not grossly illegal or dictated by interests outside the public or general interests of a corporation and with disdain or indifference to legality. In this case, it would not be understood that such repeated conduct, so exposed without dissimulation, nor any concealment, would not have been denounced until several years later, despite the obligation that governs any official to denounce public crimes”, underlines the Chamber.
A SUM OF IRREGULARITIES IS NOT AN ILLEGALITY
Likewise, it indicates that the prevaricating nature, as something of greater intensity than mere irregularity or illegality, “is not obtained by adding many irregularities, the sum of irregular resolutions does not convert into prevarication what when considered in isolation is nothing more than an irregularity “.
According to the Chamber, “it is not a quantitative problem, but a qualitative one, a decision that is totally removed from the legal system is prevarication, a resolution, defensible in some way and not arbitrary in the sense of adopted with a certain base and recognizable and legitimate purposes, even if it incurs any irregularity, major or minor, or can be branded as not in accordance with the law, is not prevarication”.
For the Chamber, the sum of many resolutions of this type does not transform them into prevarication.
This is different, he specifies, from that a resolution can be branded as prevaricating “for accumulating in itself multiple irregularities that make it grossly deviate from legality.”
According to the magistrates, “just as many administrative offenses do not constitute a crime, the accumulation of administrative resolutions that do not comply with strict legality but are not prevaricating cannot meet the typical requirements of article 404, however high their number may be.”
