The 'David Sánchez case' continues its course: the key lines of the defense to reverse the conviction

The Provincial Court of Badajoz has sentenced David Sánchez to nine years of special disqualification from public employment or office and from exercising the right to passive suffrage as a necessary cooperator in a crime of administrative prevarication.

The sentence, however, is not final; an appeal can be filed against it before the Civil and Criminal Chamber of the High Court of Justice of Extremadura within 10 days. 

In the opinion of the lawyer who signs this article, the sentence presents various aspects that may constitute the arguments for challenge by the defense:

One of the most relevant elements of the sentence is that David Sánchez is not convicted for having issued an administrative resolution, something impossible given that he did not hold the status of authority or public official.

The conviction is based on a different thesis: that he necessarily cooperated in the modification of the job position he subsequently occupied.

According to the Provincial Court, David Sánchez submitted the application to opt for the position, participated in the selective procedure, and subsequently requested and consented to the modification of the name and characteristics of the position, consciously benefiting from an administrative action designed to adapt the position to his professional interests.

Precisely this legal construction will foreseeably be one of the main fronts of the appeal. 

Was there really necessary cooperation? The jurisprudence of the Supreme Court requires that the necessary cooperator make an indispensable or essential contribution to the commission of the crime. It is not enough to benefit from an illicit act or to know of its existence; it is necessary to prove an intervention without which the crime could not have been committed.

In this case, several legal objections can be raised.

Firstly, applying for a public call and providing the required documentation constitutes an action typical of any applicant, but it can hardly be identified with the control of the administrative procedure or with the adoption of decisions that were subsequently considered arbitrary.

Secondly, the control of the administrative file never corresponded to David Sánchez. Decisions regarding the modification of the position, its processing, and its approval depended exclusively on the competent bodies of the Provincial Council. In fact, the sentence itself DOES NOT declare proven "that specific person or persons exerted pressure or influence on the first-named defendants, taking advantage of the exercise of the powers of an office or any other situation derived from a personal or hierarchical relationship with them."

Another aspect subject to review is the motivation of the sentence.

The resolution considers necessary cooperation proven, but does not specify what exactly David Sánchez's action was that proved essential for the commission of the crime.

And that question is not minor.

The modification of the job position was a decision that depended entirely on the Administration. From the perspective of the evidence presented, it does not seem that the call or the subsequent transformation of the position required any specific action on the part of David Sánchez.

Therefore, it can be argued that the sentence confuses the benefit obtained with criminally relevant participation, when Criminal Law requires something more than the simple exploitation of an illicit act carried out by third parties.

Perhaps one of the most interesting legal arguments of the eventual appeal is found in the very structure of the sentence.

The Court expressly declares that the facts corresponding to the so-called "Block A" (the initial creation of the position, the alleged design of the procedure to favor the accused, prior knowledge of the process, or the benefit obtained from the origin) are time-barred. However, although the formal conviction refers only to the modification of the position, a large part of the incriminating narrative rests precisely on those facts already time-barred.

It should be remembered that this is not a final judgment.

The appeal before the High Court of Justice will allow for a review of both the assessment of the evidence carried out by the Provincial Court and the sufficiency of the motivation regarding the existence of necessary cooperation.

It will be precisely in that phase where essential questions must be analyzed, such as the true extent of David Sánchez's attributed participation, the sufficiency of the evidence presented, and the impact that the facts declared prescribed may have on the construction of the conviction.

We will have to wait for the appeal to unfold to see if the High Court shares the interpretation made by the Provincial Court or, on the contrary, considers that there are sufficient doubts to revoke the conviction and issue an acquittal.