Expiration of the Processing of Investigations and Appealable Nature of the Agency’s Acts

On December 27, 2024, a ruling was issued by Section 4 of the Contentious-Administrative Chamber of the High Court of Justice of the Valencian Community (TSJCV), upholding the appeal filed by a City Council against the Resolution of the Director of the Agency for the Prevention and Fight against Fraud and Corruption of the Valencian Community, number 490/2021, dated June 30, 2021.

The object of the appeal was the aforementioned resolution, which dismissed the request for expiration of the investigation file and extended the investigation period by six months. Subsequently, the appeal was extended to include the resolution of December 30, 2021, which concluded the investigative actions undertaken.

Legal Basis Three is particularly relevant, as the Agency’s former legal representation argued that the appeal was inadmissible, considering that the challenged acts were procedural steps. However, the Chamber had no doubt that “this is a qualified procedural act since, had the expiration been declared, it would have led to the termination of the procedure, thereby indirectly deciding the substantive issue at hand, with serious prejudice to the rights and interests of the party involved.”

Regarding the resolution of December 30, 2021, the Agency invoked the literal wording of Article 40.2 of the Regulations implementing Law 11/2016, arguing that what was stated were mere recommendations that did not impose obligations or responsibilities. However, the Chamber disagreed with this interpretation, stating that “it is evident that we are dealing with a clear and categorical mandate that leaves no options or alternatives for the addressee, but rather a clear and decisive intention that what has been decided must be fulfilled.”

In conclusion, these are requirements that, due to their very nature as legal mandates, must be subject to judicial review in contentious-administrative proceedings.

Regarding the issue of expiration, the Chamber rejected the series of arguments put forward by the Agency’s legal defense to justify the prolonged duration of the procedure and thus dismiss the claim of expiration, ultimately concluding that the expiration of the investigation file should be upheld due to the lapse of the legally established period for concluding the investigative actions.

The Chamber ruled to annul the challenged resolutions, declaring the expiration of the procedure, resulting in the archiving of the case. Additionally, it declared the nullity of the phrase in Article 40.2 of the Regulations implementing Law 11/2016 concerning the non-appealability of communications or requests within the investigation procedure, ordering the Agency to bear the legal costs incurred.

The new management agrees with the Chamber’s reasoning on the indicated points and has begun taking measures regarding the regulation of the expiration of investigation procedures and the appealability of the Agency’s acts, initiating a legal study of the implications of the ruling.

The Agency must respect fundamental rights 

On 21 November 2023, the previous Directorate of the Agency dismissed at the discretion of a staff delegate of the AVAF who held a position as a lawyer.

On 9 July 204, by means of judgment number 670/2024, of 9 July, of the Contentious-Administrative Chamber of the High Court of Justice of the Valencian Community, (TSJCV), which upheld the civil servant’s appeal against the dismissal resolution. The TSJCV, within a preferential and summary judicial procedure for the protection of the fundamental right to freedom of association and the fundamental right to effective judicial protection, considered that the dismissal decreed by the previous Directorate was null and void because it violated fundamental rights.

On 17 September 2024, the current Directorate of the Agency has executed the aforementioned judgment and has complied with the provisions of the court ruling without exhausting the voluntary compliance period, facilitating the reinstatement of the civil servant to the position of lawyer, recovering the functions of staff delegate elected by the staff. In the past, the Agency’s Management had already executed other judgments (e.g. STSJCV 345/2021) for unfair dismissal.

Consequently, the current Management of the Agency has not filed an appeal in cassation nor has the judicial process been unnecessarily delayed, nor has it increased the economic costs for the Agency and the psycho-labor and remunerative damages caused to the civil servant dismissed at the time.

In the same way, and taking into account the legal grounds of the aforementioned judgment, the current Management has decided to put an end to the files opened against two other female officials of the Agency in the exercise of their fundamental rights to freedom of association and freedom of expression in labour matters.

For this reason, the appeal for reconsideration filed against the proposal for a sanction of 12 months of suspension of employment and salary, and loss of job, adopted within the disciplinary proceedings opened against an investigator, staff delegate and Prevention delegate for forwarding an email from a union debate, has been upheld.

The upholding of the appeal has facilitated the reinstatement of the civil servant to her job.

With regard to the legal situation of another of the civil servants who were prosecuted for forwarding an email about a trade union debate, the current management has brought legal action against the measures adopted by the previous management of the Agency to facilitate the completion of the judicial proceedings and the threat of suspension of employment and salary for 18 months and loss of employment.

The publication of this information is made with the prior consent of the officials to whom reference is made indirectly.