The National Court has confirmed the decision of the Ministry of the Interior to remove from his post an agent who was convicted four years ago for a crime of torture against a detainee in Arrecife. The ruling, dated March 10, rejects the appeal filed by this national police officer, who sought to annul the disciplinary sanction imposed on him as a result of that sentence, permanently removing him from the force.
Another agent was convicted along with him, and both were sentenced to four and a half years in prison and 9 years of disqualification for a crime of torture and another of injuries. According to that sentence issued in 2017, which acquitted the rest of the agents who also sat on the bench, these two defendants subjected a detainee to “physical and mental suffering by brutally and repeatedly assaulting him, hitting him with the regulation defense on the back and leg and with the tip of the shoe in the mouth".
Since their indictment, disciplinary proceedings were opened against them, but their processing was suspended pending the outcome of the criminal proceedings. Later, when the final judgment was issued, their status as civil servants was withdrawn due to their disqualification sentence, and in February 2019 the disciplinary proceedings were also resolved, with the resolution of the Ministry of the Interior separating them from the service for a very serious offense.
He defended the “presumption of innocence” despite the final sentence
Initially, this agent filed an appeal with the Ministry itself, which dismissed it, and then went to court. Among other things, he alleged that he had initiated actions against the man he assaulted, accusing him of the crime of false accusation and perjury, and argued that with the result of that procedure, he hoped that his case and his sentence would be reviewed. Therefore, despite the final sentence, he continued to appeal to his “presumption of innocence” and to an alleged criminal prejudice that should continue to halt the administrative sanction.
“The appellant intends to replace the motivated and detailed assessment of the evidence carried out by the condemning sentence -which analyzes the extensive expert evidence practiced in the act of the plenary- with his own, which is completely unsustainable,” responded the State Administration. “The facts that determine the imposed sanction are already established in a final criminal judgment, confirmed by the Supreme Court, so it is not possible to appreciate such prejudice alleged to the contrary,” he added.
Now, that is what the Fifth Section of the Contentious-Administrative Chamber of the National Court has also concluded. “The conviction itself destroys the presumption of innocence invoked by the appellant,” the judgment states, which also underlines the “body of evidence and assessment” that the ruling included. Regarding his attempt to have the case reviewed by accusing the victim of false accusation, he emphasizes that “it is a future hypothesis that cannot condition the pronouncement of this Chamber on the conformity to the legal order of a sanction imposed based on a final judgment in law.”
He considered the sanction “disproportionate”
As a subsidiary matter, the agent requested that, if the sanction was not annulled, it be reviewed and replaced with a suspension of duties of three months to six years or with a “forced transfer”, which are measures also contemplated in the Disciplinary Regime. In this regard, he questioned that he had been applied “the most serious of the sanctions included” and considered that it was “disproportionate” and that the reason for that sanction had not been justified.
However, as the State Administration responded, the Chamber of the Court concludes that “the judgment of weighing that leads to the sanction of separation from service is not irrational or arbitrary, but, on the contrary, reasoned and reasonable”. And it does not consider that “the absence of recidivism, having not been sanctioned and lacking a criminal record, except for the crime committed, and the professional record without any blemish that he claims to have”, are reasons to reduce the sanction.
“The behaviors subject to conviction produce a serious discredit for the Institution to which the plaintiff belongs and the particular social rejection of this type of behavior, which are clearly contrary to the principles that should inform the behavior of the members of the National Police Force", the State had alleged, defending that the measure was not “arbitrary, nor disproportionate, nor is there a lack of motivation”.
To this, the Chamber adds that his sentence was already reduced due to undue delays in the processing of the case, and that even so, the lowest was not imposed on him, precisely because the Provincial Court valued the “seriousness of the crime of torture itself, the commission of which is not expected in a modern State of Law”. In this regard, it recalls several parts of that ruling, which underlined that the crime was committed by “those who have the detainee at their disposal in the exercise of public power, and who, as representatives of the latter, must ensure respect for those rights”.
Furthermore, he emphasized “the circumstances concurrent in the events, given the number of participants and the extent of the acts of physical violence deployed, apart from the apparent impunity with which the accused acted, who did not have the slightest hesitation in executing the events in a transit area to other police units” within the police station, “taking advantage of the situation of detention to which he was subjected”.
“Repressing the previous behavior” of the detainees
The judgment also refers to other parts of that ruling, which concluded that the conduct of the two convicted men “was intended to repress the previous behavior in the park located on Alcalde Ginés de la Hoz street, in Arrecife”. And it is that the victim and his brother were also convicted of having assaulted the agents during their arrest. Later, already at the police station and when they were “at the mercy of the people in charge of their custody”, was when this aggression occurred.
In this regard, the ruling referred to the “number of acts against moral integrity deployed, the intensity of some of them, especially the blows with the regulation defense on the back and leg, and which is highlighted in the extent of the injuries derived from them, even causing the breakage of a compact bone such as the tibia”.
“The determining facts of the criminal conviction present a high level of seriousness that makes them incompatible with the degree of irreproachability that is required in any member of the State Security Forces and Corps, both to ensure that their future professional activity will be guided by a correct performance of the assigned functions, and so that social confidence in said Security Forces and Corps is not broken”, concludes the judgment, against which an appeal is still possible, and which also imposes on the plaintiff the payment of the costs generated.
