SPAIN: the Venezuela of Europe (II): the control of the judiciary (I): public prosecutor's office and investigating courts

By: César Vidal - 30/05/2024

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In my last installment, I pointed out how Pedro Sánchez has been taking steps towards the consolidation of a Venezuelan-style regime in Spain and how, in order to move in that direction, it is indispensable for him to control a press that has been the target of terrible actions for some time now. As it is not difficult to imagine, this behavior requires neutralizing and controlling the administration of justice and, certainly, this is a process that has been going on for a long time and is reaching a real paroxysm with Sanchez. The control of justice is produced by the control of the public prosecutor's office, the control of some investigating judges and the control of higher courts such as the Supreme Court or the Constitutional Court, as well as the General Council of the Judiciary. In this installment, I will focus on prosecutors and investigating judges and leave the other judicial institutions for the next one. Let us begin with the prosecutors.

It was Pedro Sánchez himself, when he was in the opposition, who asked the following question: "On whom does the public prosecutor's office depend? Well, that's who. What Pedro Sánchez wanted to make clear is that, at the end of the day, the state attorney general is appointed directly by the government and the state attorney general takes advantage of the hierarchical order of the public prosecutor's office so that the prosecutors behave not according to the law but according to the orders they receive. The examples that could be cited are very numerous, but allow me to cite only a few particularly scandalous examples.

In 2006, the indescribable Cristóbal Montoro created a law firm in which his brother and relevant positions in the Treasury administration were integrated. Montoro explicitly declared that he was not going to engage in influence peddling, although the truth is that he was a member of the European Parliament at the time and did not give up his seat despite being part of the firm. Among the most prominent members of Montoro's office apart from himself was Ricardo Martínez Rico, former Secretary of State for Budgets and Expenditure under Aznar, who would replace Montoro as president of the office and is the brother of Montoro's undersecretary of Finance and Public Function; Ricardo Montoro: president of the Centro de Investigaciones Sociológicas (CIS) between 2000 and 2004 and brother of Cristóbal Montoro; Luis de Guindos, Rajoy's Minister of Economy, and former president of the US investment bank Lehman Brothers in Spain and Portugal; Manuel de Vicente Tutor, tax inspector and secretary of the board of Equipo Económico and managing partner of the Tax and Regulatory Area, as well as secretary of the board of the photovoltaic company Solaria; Pilar Platero Sanz, whom Montoro appointed Undersecretary of the Ministry of Finance and Chairwoman of the Sociedad Estatal de Participaciones Industriales (SEPI), the holding company attached to the Treasury on which depend most of the state-owned companies and the shareholdings in listed companies such as REE, Enagás or Ebro; Miguel Crespo Rodríguez, who was indicted for his actions related to Bankia, José Manuel Fernández Norniella, who was Chairman of the Consejo Superior de Cámaras de Comercio and Secretary of State for Finance and Trade with Rato, and who was convicted for the scandal of the 'black' credit cards; Salvador Ruiz Gallud, who was General Director of the Tax Agency and Director of Organization, Planning and Institutional Relations of the Treasury; Francisco de Asís Piedras Camacho, who during Aznar's term was Director of Montoro's Cabinet and Director of SEPI, CESCE and Paradores, among other positions; José María Romero Vera, Cristóbal Montoro's advisor in the European Parliament between 2004 and 2008; Gonzalo Solana, appointed by the Government to the Board of Directors of Enagás and Chairman of the Tribunal de Defensa de la Competencia; Mr. José Folgado, former Vice-President of CEOE and Secretary of State for Energy and Budgets under Mr. José María Aznar and Mayor of Tres Cantos, a Madrid town which awarded several contracts to Equipo Económico; Mr. José María Michavila, former Minister of Justice under Mr. Aznar; Covadonga Romero de Tejada: daughter of the former secretary general of the Madrid PP and mayor of Majadahonda Ricardo Romero de Tejada, convicted for the 'black' cards, and proxy in the construction company DICO, linked to the businessman David Marjaliza, one of the ringleaders of the corrupt plot Púnica and Ana Serrano who would be director of Communication of Montoro in Hacienda.

During the following nine years, Montoro's office invoiced 42.5 million euros, with its best year being just that of 2012, the year following the coming to power of the Popular Party (PP) government in which Montoro became Minister of Finance. In view of the imminent arrival of the PP to power with Mariano Rajoy, as published at the time by the newspaper ABC , Montoro and other members of his office held meals with businessmen in which it was stated that he would be the next Minister of Finance at the same time that office cards were handed out.

The intense and continuous rumors of corruption in relation to Montoro's office were repeated over and over again while he was Minister of Finance, especially when he presented a regulation project that favored an energy company and that was an exact copy of what his office had elaborated for the same company he had as a client.

For years, the anti-corruption prosecutor's office has been investigating the alleged corruption of the consulting firm created by the former Minister of Finance Cristóbal Montoro. Currently, this investigation for corruption would be led by the prosecutor Carmen García Cerdá of the 2nd Court of Instruction of Catalonia.

The actions of the prosecutor Carmen García Cerdá were hindered by the chief prosecutor Alejandro Luzón, who prevented her from carrying out a series of indispensable diligences for the investigation. This more than questionable refusal of the chief prosecutor led the prosecutor Carmen García Cerdá to summon the twenty or so officials of the anti-corruption body to resolve the matter. The proceedings that the chief prosecutor was blocking were related to Montoro and the investigation was directed towards a group of people with the capacity to put pressure on a government and who were allegedly trying to influence legislative decisions. These individuals hired the services of Montoro's office to advise and end up with favorable government decisions. In other words, allegedly, when some pressure group wanted a legislative change that was favorable to them, they only had to turn to the office founded by Montoro to get it.

In this particular case, the investigation was opened more than five years ago, in 2018 in the Court of Instruction number 2 of Tarragona in relation to the existence of "a plot or organization" whose purpose would be "to intervene and decisively influence favorable legislative reforms for the gas companies encompassed in the Association of Manufacturers of Industrial and Medicinal Gases (AGGIM)". To achieve this, according to the thesis of the investigators, "they hired the services of the mercantile Equipo Económico (EE) before "Montoro Asociados" and currently since 2016 "Global Afteli" (GA)". A society, according to a resolution of the Audiencia de Tarragona on the case, "whose members would come holding positions at the highest level of the Government, Central and Autonomous Administration, creating a network of influence on senior officials and officials of the Ministry of Finance to obtain tax benefits in favor of these gas companies, through legislative amendments that entailed lowering the electricity tax for these companies".

In a totally logical way, the prosecutor's office interpreted that "the amounts obtained for such services, due to their amount and empty legal value, are the covert commissions for the achievement of the intended legislative reforms".

This investigation opened in July 2018 had its origin in a "chance finding" of some emails in the course of another investigation into land planning crimes that led to the search of the Messer Ibérica de Gases SA facility in the town of Vilaseca and Morell. To the above was added an anonymous complaint that triggered the investigations. The crimes that the judge of Tarragona raised as possible to justify the control of communications of several investigated included bribery, fraud against the public administration, prevarication, influence peddling, prohibited negotiations, embezzlement, against the Public Treasury, money laundering, corruption in business, falsification of documents, crimes against free competition and membership of a criminal organization.

In spite of everything, in January last year the Audiencia revoked the control of the communications entrusted to the mozos de escuadra (the autonomous police of Catalonia) and the civil guard and did so, surprisingly, at the request of the Prosecutor's Office. It is obligatory to remember that already in 2017, the Public Prosecutor's Office filed a complaint for prevarication against the legal firm founded by Montoro in 2006, Equipo Económico, and against the former president of the Superior Council of the Chamber of Commerce Manuel Teruel. The complaint referred to the alleged award in 2012 to Montoro's firm of a 91,000 euro contract in violation of the State Contracts Law. The case focused on the allegedly irregular contracting of the firm by the Chambers of Commerce after the PP came to power. Among those accused at that time were the brother of Minister Ricardo Montoro; Ricardo Martínez Rico, former Secretary of State for Budgets and Expenditure; Salvador Ruiz, former Director General of the Tax Agency; and Francisco de Asís, director of Montoro's cabinet. The complaint was for more than two years in the Court of Instruction number 22 of Madrid until 2019 when it was filed.

Recently, justice has returned to investigate Montoro and his office with a clear confrontation between the prosecutor the prosecutor García Cerdá and the head of Anticorruption. In fact, the prosecutor has appealed to article 27 of the Fiscal Statute which is used when a prosecutor believes that he has received "an order or instruction that he considers contrary to the laws or that, for any other reason he considers improper". Because of this circumstance, the Board of prosecutors of the body met last September 16 to resolve who was right and a majority of 19 votes against five opposed investigating Montoro. As for the prosecutor who wished to fulfill her duty, she was sanctioned for trying to do so. It is not without significance...

In other cases, prosecutors are not obstructed in their investigative work by superior orders, but they contribute in an overwhelming way to the persecution of political or media dissidents. The system is simple. A - who is totally innocent, but the object of the hunt - is charged with false crimes on the basis of a fictitious account by the prosecutor. Of course, there is a risk that a higher judge will declare the falsely accused innocent, but to neutralize that possibility, the prosecutor resorts to a simple and effective expedient. Thus, he accuses an innocent B of being an accomplice of A. B is first stunned and then terrified. How is it possible for the prosecutor to accuse him of a crime he did not commit? How can he not see reality? How can he sustain such a crazy story? The truth is that the prosecutor does see reality. After a time of terror and maceration, the prosecutor offers B to drop the charges, but on condition that he accepts his fictitious story about the guilt of A. In the vast majority of cases, B, terrified, agrees to lie to facilitate the conviction of A. There are several politicians and dissidents who are now in prison in Spain thanks to this way of acting totally contrary to law and justice, although I know of a case in which B was not intimidated and, on the contrary, fully supported A at the risk of ending up in prison. It is very painful to accept, but, significantly, a good part of the prosecution has ceased to be a public ministry and has become part of a harassment mechanism.

The work of the prosecution is obviously essential to indict or to prevent the prosecution of someone. However, to close the circle of the instrumentalization of justice, the cooperation of at least some of the judges is necessary. The obvious case is that of the investigating courts. These investigating courts have the power to initiate proceedings for dissidents and also to dismiss the cases of friends. Among the Spanish dissidents, one of the most notorious investigating judges is the 33rd investigating court in Madrid, where Tomás Martín Gil serves as judge.

It is common for examining magistrates to rise through the ranks and go on to perform judicial functions in provincial courts, in the national court and even in the Supreme Court. It is certainly striking that Martín Gil has spent decades without moving from his position as an examining magistrate, a behavior similar to that of a sergeant who does not wish to be promoted to lieutenant, captain or colonel. Of course, perhaps it could be attributed to simple humility. Perhaps, but Martín Gil has demonstrated time and again an enormous predisposition to dismiss cases involving important socialist politicians, to initiate debatable cases against adversaries of the socialist party and to initiate actions with more than debatable interpretations of the law. Again, it is obligatory to provide some examples.

Perhaps the first leap to notoriety was made by Judge Martín Gil when in 1993 he released those allegedly responsible for a fraud of more than four billion pesetas - some twenty-four million dollars. However, much more notorious was when Judge Martin Gil quickly dismissed actions brought against Miguel Sebastian - Minister of Rodriguez Zapatero - Carlos Arenillas, head of the National Commission of the stock market and the director of the Economic Office of Moncloa, David Traguas. The case arose from very serious suspicions of corruption affecting the three high-ranking socialist officials. Martín Gil filed the case with extraordinary speed. However, quite significantly, Martín Gil did accept actions against another corruption scheme related this time not to socialists but to popular.

In 2014 , one of those dismissal decisions by Judge Martin Gil was annulled by a higher court that considered his action unacceptable. Tomás Martín Gil was forced to reopen for the second time an investigation to the National Police Corps. The Provincial Court upheld the plaintiffs' appeal against Martin Gil's dismissal of the case and ordered him to continue investigating until the facts were fully clarified. Tellingly, Judge Martín Gil had immediately closed the case, without even conducting any proceedings.

In 2017 , Judge Martín Gil decided to accept the complaint for alleged torture committed during the Franco regime. The judge's action was blatantly illegal not only because of the statute of limitations, but also because the facts were outside the judicial prosecution after the 1977 amnesty laws that cemented the Transition. Martín Gil's action, thunderously illegal, aligned, however, with what would be one of the most discussed positions of Sánchez's social-communist government a few months later.

In 2019 , Judge Martín Gil again judicially charged the PP in a more than disputed case. Let's leave the examples here.

Could it be by chance that the 33rd examining court of Madrid - like others - has always treated socialist politicians benevolently while it has acted severely against right-wing politicians? Could it be by chance that the 33rd examining court has even advanced interpretations of the law unacceptable from the Spanish legal system? Could it be by chance that for decades Judge Martín Gil has remained in the 33rd examining court without opting for possible promotions and promotions? Yes, indeed, everything could be coincidental. However, it is also understandable that among dissidents of the current government of Sanchez there is a firm conviction that the 33rd examining court in Madrid is just one of those used as an instrument of repression. According to these testimonies, it is enough to file the complaint or denunciation on the day the court is on duty to ensure that the person will be prosecuted or, on the contrary, will avoid prosecution.

In other cases, the judicial action has been more striking. For example, the case of the EREs is the most serious known case of corruption in the history of Spain. Related to a fraud of hundreds of millions of euros of public money, it involved the socialist administrations of Andalusia, including two of its presidents. Well, most of the cases related to the EREs simply prescribed without being able to prosecute the guilty ... but the two socialist presidents of Andalusia were tried, convicted and reached a final judgment. They have never been sentenced to prison and no one believes that they will ever do so in the future. Admittedly, this is striking, although - let us insist - it is only a few examples of the situation of the administration of justice in Spain.

It is hard not to conclude that Pedro Sanchez has, through the combination of the power of the prosecutor's office and that of some judges, a colossal repressive power. However, this is far from being the end of the story. Pedro Sánchez also has control over the administration of justice that goes all the way to the constitutional court. But we will talk about these other aspects in the next installment.

TO BE CONTINUED

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