The Provincial Court of Badajoz has not shied away from public debate and has included in its ruling two of the behaviors that have marked the case for which David Sánchez, the brother of the Prime Minister, Pedro Sánchez, has been sentenced to nine years of disqualification for administrative misconduct. The judges openly speak of “nepotism” and “absenteeism,” two practices they label as “ethically reprehensible” but clarify that they do not always deserve legal reproach. In fact, the latter is not even a crime, they emphasize.
Read more Hegseth announces testosterone tests for U.S. soldiers over 30 years old
David Sánchez and Luis Carrero have been convicted as necessary accomplices of a crime, that of administrative misconduct, which can only be committed by officials or public employees when adopting objectively illegal resolutions, contrary to the legal system. On the other side is Miguel Ángel Gallardo, former president of the Diputación of Badajoz and ex-leader of the Extremaduran socialists, whom the court considers the full author of said crime. According to the ruling of the Badajoz Court, the illegality was creating and awarding two senior management positions ― head of the Performing Arts Office, for Sánchez, and head of the Coordination Section of Centers and Cross-Border Activities Programs, for Carrero ― that did not respond to any “urgency” or “need” but to their “particular interest,” so that “they could dedicate themselves to whatever activities they fancied, without any control” and at public expense, which were mainly opera.
“The ghost hovering here is Mr. Pedro Sánchez Pérez-Castejón,” said during the trial Marta Castro, legal coordinator of Vox, one of the popular accusations in the case. She thus verbalized what they had been pointing out throughout the investigations: that David Sánchez got that job for being the “big brother,” the matter that appeared in one of the emails intercepted from the employees of the Diputación of Badajoz regarding these positions. The impact of that email, sent on May 19, 2017, by Evaristo Valentí to Yolanda Sánchez, the two conservatory directors in the province, was dampened during the oral hearing when its author clarified that it was a “rumor” without being able to specify to whom, where, and when he had heard it.
The ruling speaks in this sense as did the president of the court, Judge José Antonio Patrocinio, upon hearing that testimony. “The court is not interested in rumors, speculations, or gossip,” he said. The same idea is reflected in the ruling acquitting all the accused of the crime of influence peddling because neither the accusations substantiated it well nor has it been proven. The judges say they do not know who could have influenced or with what specific actions.
Despite this, they put forward the “hypothesis” that Gallardo may have tried to “curry favor” with Pedro Sánchez by treating his brother, then “unemployed,” to that “tailor-made” job for him and his friend, after the Extremaduran leader had supported Susana Díaz in that year’s socialist primaries. In this regard, the judges argue that, although he had resigned and had not yet reached La Moncloa, Pedro Sánchez was already at that time “a leading political figure and future secretary general of the PSOE, by re-election to the position.”
And they go further, explicitly speaking of “nepotism,” defining it as “a practice consisting of favoritism or ‘cronyism’ towards family members or friends in order to obtain positions, promotions, or benefits, ignoring the principles of equality, merit, and ability that govern access to public office, promotion within them, or obtaining advantages derived from the exercise of administrative functions.”
For the court, it is an “unethical” practice that “harms democratic health, fosters corruption and inequality of opportunity, with a decrease in efficiency in the performance of employment in public administrations,” since it allows access to these jobs to “people lacking the necessary preparation.”
However, immediately after, the court states that “not every lack of probity, ethically reprehensible, inherent to the scourge of nepotism constitutes a crime.” “It only does so when the facts constituting the improper practice can be classified under specific criminal types,” say the judges, setting the boundary. And, in this specific case, only “if [the facts] were subsumable under the criminal types subject to accusation” ― administrative misconduct and influence peddling ― they specify.
“Work absenteeism” is neither nor has ever been a crime
The ruling also directly refers to what has become one of the milestones of the case. It is David Sánchez’s first statement in the investigation phase, when he admitted that he did not know where the office he was supposed to go to work physically was. Later, he qualified his words, explaining that he did not understand the performing arts office as “a physical space enclosed with a window,” but as “an administrative category,” an “umbrella of activities.” The judges value that first statement, downplaying the subsequent ones ― another in the investigation and the trial ― considering that the latter were guided by the “suggestive questions” of his defense lawyer.
Likewise, they reproach David Sánchez for “from the very beginning, neglecting his obligations and commitments by barely attending his workplace, and failing in his duty to coordinate the conservatories.” In fact, they emphasize that he only conducted the orchestra five times, despite it being one of the tasks associated with the position. The judges point out that Pedro Sánchez’s brother focused his efforts on what he truly liked: opera, even though these were “unrelated to the task for which he had been hired.”
However, the court again draws the same line between what is “ethically reprehensible” and what is criminally punishable. “We must agree with the defense of Mr. [David] Sánchez Pérez-Castejón that work absenteeism does not constitute, nor has it ever constituted in our country, any criminal offense.”
In any case, the judges emphasize that “this is not the object of judgment, but whether acts that could be considered as gross and arbitrary distortion of the law have been committed.” And on this, they have no doubt. Thus, they sentence the “existence” of a “preconceived plan” from the top of the Diputación Provincial of Badajoz to create two “unnecessary” senior management positions that would satisfy the “personal appetites” of Sánchez and Carrero.
Read more The CJEU sets the path for amnesty this Thursday: key points of a decisive ruling
