The Second Chamber of the Supreme Court has dismissed the case against the former president of the Canary Islands and current senator for CC, Fernando Clavijo Batlle, who was being investigated in the Grúas case for alleged crimes of prevarication and embezzlement of public funds. The decision was adopted against the criteria of the Court of Instruction Number 2 of San Cristóbal de la Laguna (Tenerife), which referred the case to the Supreme Court due to Clavijo's status as a person with parliamentary immunity.
In the statement it submitted to this body, the Court considered that there was evidence of a crime in various actions carried out by Fernando Clavijo when he was mayor of La Laguna, related to the municipal management of the service for removing vehicles from public roads through a concessionaire.
However, the Supreme Court Chamber formed by Manuel Marchena, as president and rapporteur, and the magistrates Miguel Colmenero, Juan Ramón Berdugo, Vicente Magro and Susana Polo, has decided to dismiss the proceedings, in which Clavijo has been represented for a year by the lawyer José Antonio Choclán Montalvo. Choclán, who has intervened in some of the main corruption cases in Spain, is also the lawyer of the businessman from Lanzarote, Juan Francisco Rosa.
A loan of 120,000 euros with objections from the Comptroller's Office
According to the Court's statement, the crime of administrative prevarication would have been committed by the person with parliamentary immunity in relation to the granting in 2014 by the City Council of a loan of 120,000 euros to the company holding the concession for the crane service, which was going through serious treasury problems, and to the extension of the concession contract, despite the fact that the Corporation's comptroller raised objections to it. Regarding the crime of embezzlement, it would have been committed in relation to the loan, despite the fact that it was repaid by the concessionaire company that received it.
The Supreme Court, on the other hand, considers that the facts described in the reasoned statement do not allow for the demand of criminal responsibility from the then mayor Fernando Clavijo. The key is an external report that Clavijo commissioned from two professors from the University of La Laguna, in order to lift the objections raised by the municipal comptroller.
The author of the report, commissioned after the Land Law
The people to whom the City Council, then presided over by Fernando Clavijo, paid for that report were a relative of his, Francisco Clavijo, and the professor he later commissioned, as president of the Canary Islands, to draft the Land Law, Francisco Villar, with whom he has repeatedly counted on.
In the case of the latter, when testifying as a witness during the investigation, he stated that his opinion was only "theoretical", without analyzing the specific case of that loan to Grúas Poli. However, the Supreme Court concludes that in that report, "without room for doubt, the legal coverage of the loan to restore the normal functioning of the service and the way to account for its granting is recognized".
For the high court, "the academic solvency" of those who sign the opinion and its documentary integration in the file within which the prevaricating resolutions would have been issued is "beyond doubt". "And that opinion is, by the way, the technical criterion on which not only the person with parliamentary immunity, but also the Directorate of the Security Area, the Local Government Board, the Deputy Mayor, the Mayor President and the councilors who supported the allegedly prevaricating resolutions with their votes rely," they add.
The judicial action began in 2017 due to a complaint from councilors of Unidos Se Puede and Por Tenerife Nueva Canarias. The Supreme Court highlights in its order that this required a criminal investigation of the facts -in which Clavijo's possible personal ties with some of the owners of the company that received that loan and the extension of the service were put on the table- but recalls that not every administrative infraction or irregularity or omission in the processing of a file constitutes a crime of prevarication, which the magistrates consider has not occurred in this case.
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