David Sánchez, brother of the Prime Minister, and Miguel Ángel Gallardo, former president of the Diputación of Badajoz and former secretary general of the PSOE of Extremadura, have been sentenced for a crime of administrative prevarication to nine years of disqualification from employment or public office and from exercising passive suffrage in a ruling issued by the Audiencia of Badajoz that was made public today. What is the crime of administrative prevarication?
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It is included in article 404 of the Penal Code, which states: “The authority or public official who, knowingly unjust, issues an arbitrary resolution in an administrative matter shall 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.”
Thus, this offense is committed when an official issues a decision or resolution that constitutes an abuse of power, being contrary to the law and adopted capriciously or without legal justification, and it occurs when the official who commits it acts with full awareness and will that their decision is illegal and unjust.
What does the ruling on David Sánchez say about the commission of this crime of administrative prevarication? The resolution points out that for this offense to occur, specific requirements must be met, emphasizing that illegality alone is not enough, but a “distortion” of the law is required.
The ruling of the Audiencia of Badajoz recalls that administrative prevarication consists of issuing a “resolution issued by an authority or official in an administrative matter” that is “objectively contrary to the law, that is, illegal” and that this act must cause a “materially unjust result” having been issued with the purpose of “enforcing the particular will of the authority or official” against the law.
In the case of the Prime Minister’s brother, the judges consider that the crime of administrative prevarication was consummated by creating a “position reserved for the person of the accused David Sánchez… with the intention of favoring him when he was unemployed.” Thus, an “ad hoc procedure was designed, aimed at creating positions — nonexistent until then —” to fit the “operatic concerns” of the beneficiary.
David Sánchez obtained a position as coordinator of the conservatories of the Diputación of Badajoz in 2017 and, according to the court, the entire administrative process was a “mere instrument to disguise arbitrary actions” to give a “semblance of legality” to decisions already made in advance. The ruling states that David Sánchez had a prior interview before acquiring the position to “simulate the formal legality of the procedure” while adapting the conditions of the position “to his personal references.”
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How can David Sánchez be convicted of a crime of administrative prevarication if he is not a public official? David Sánchez does not hold the status of a public official, but the ruling explains that he is convicted as “extraneus” under the technical figure of “necessary cooperation.” The court clarifies that, although prevarication is a crime that only authorities or officials can “commit,” private individuals can be responsible in some cases.
The ”’extraneus‘ “can indeed perform… the types of participation, inducement, and necessary cooperation,” the ruling indicates. And it specifies that to convict a private individual, their help must have been essential and they must have had full intent to commit the crime, since “necessary cooperation exists when the private individual “collaborates with the direct perpetrator by providing conduct without which the crime would not have been committed.”
David Sánchez does not hold the status of a public official, but the ruling explains that he is convicted as “extraneus”
Furthermore, in these cases a “double intent” is required, that is, that the participant has the “intention to participate, in the sense of collaborating in the criminal act of another” and their contribution must be made “with knowledge that their contribution provides the necessary aid to the author for the commission of the criminal act,” adds the ruling.
In the case of David Sánchez, the court considers it proven that his intervention was fundamental for the officials to perpetrate the prevarication, as he participated in the process having “prior knowledge that the coordinator position of the conservatories had been created for him” and agreed to carry out the selection interview in order to “simulate the formal legality of the procedure,” being the “main beneficiary” of the operation.
The judges consider that his conduct consisted of performing “core acts,” such as submitting the application in a “merit contest” that the court defines as a “disguised selective process.” Thus, the court holds that David Sánchez was an indispensable collaborator in the execution of a “preconceived plan” to create a “tailor-made suit” for him with public funds, knowing that the administrative process was a mere simulation.
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