Wednesday, July 6

A judge frees from a serious sanction ‘El Sardina’, a civil guard who informed a friend investigated for drug trafficking

‘El Sardina’, a civil guard from the Main Post of the Armed Institute in Massamagrell (Valencia), maintained a “bond of friendship and personal relationships” with an alleged criminal investigated for drug trafficking to whom he passed information.

The agent, however, has escaped the sanction of a month of suspension of employment for a serious offense when considering the military judge that the disciplinary file was initiated as a result of a “chance finding” in the telephone taps, according to the sentence of the first section of the Central Military Court to which has had access.

An investigation by the Organized Crime and Anti-Drug Team (EDOA) of the Organic Unit of the Judicial Police of the Valencia Command intervened telephone conversations, with authorization from the Investigating Court number 15 of the capital of Turia, which revealed the friendship between ‘ El Sardina ‘and the main objective of the operation. The Local Police of the Pobla de Farnals carried out an intervention on the investigated person in the early morning of December 15, 2016 and found that the man had a pending requisition with an order prohibiting stay in Schengen territory issued by Sweden.

The telephone interventions carried out by the EDOA of the Armed Institute detected that same December 15 a call from the investigated in which he communicated what happened to his uniformed friend. In addition, in another conversation between the suspect’s wife and her husband’s lawyer, the woman acknowledges that “the friends of the Civil Guard did the favor of finding out and that there was an entry ban.”

The investigated, in another conversation with a certain ‘Canicas’, related the night incident with the Local Police of Massamagrell and told him that he had contacted ‘El Sardina’: “They found out that he had a process where they contacted the embassy to check if he had a license, “he said. In another call from the investigated person punctured by the EDOA, the alleged offender talks to another agent, who reassures him: “There is no crime for not having a license, although there may be an offense for not exchanging it.”

The guard assures him that “he has discussed it with the head of the Local Police”, he asks for his Foreigner Identity Number (NIE) and “thus from time to time he would look at it in the database in case there was a new order to check it. “. After these investigations, the head of the Organic Unit of the Judicial Police of Valencia requested an internal audit a month later on the computer inquiries made about the investigated by ‘El Sardina’ in the Integrated Operational Management System (SIGO), the base of information data of the Civil Guard.

The audit concludes that there were three inquiries about the investigated in the reserved database of the Armed Institute, the first by the Organic Unit of the Judicial Police of Barcelona (“considered logical” when intervening in the police investigation) and two more in Massamagrell barracks terminals.

The head of the Organic Unit of the Judicial Police of Valencia also requested judicial authorization to extract the data of the procedure followed in the proceedings of the Court of Instruction number 15 of Valencia, “whose results served to give foundation to the disciplinary part.”

The report gives an account of the incorporation of an agent from the Main Post of Massamagrell, to which ‘El Sardina’ belonged, who when he heard an allusion to his partner recalled that the third guard involved (the one who had assured the investigated that he would look at the base of data) took the opportunity to consult the SIGO but with his session open, thus avoiding leaving his trace. The query, obviously, was about the one investigated by the EDOA, about which there was a request.

The disciplinary part lists eight suspicious telephone conversations and affirms that “even though, by this police service, the behavior” of ‘El Sardina’ “has not been considered grounds for a criminal offense,” it could constitute a disciplinary sanction. ” June 15, 2018, the chief general of the VI Zone of the Civil Guard, corresponding to Valencia, imposed on ‘El Sardina’ a penalty of one month of suspension of employment as the author of a serious offense consisting of “gross negligence in compliance with professional obligations “.

The sanctioned agent, whose legal representation is held by a lawyer from the Unified Civil Guard Association, filed an appeal with the Territorial Military Court No. 13 of Valencia, which referred it to the Central Military Court of Madrid. The lawyer for ‘El Sardina’ argued that there had been a violation of the presumption of innocence of the uniformed man, as well as of the principles of legality and typicity and of the rules governing the proportionality and graduation of sanctions. Alternatively, it requested the replacement of the penalty imposed of one month of suspension of employment for the loss of five days of assets with suspension of functions.

The military judge has upheld the appeal of ‘El Sardina’. The ruling recalls the doctrine of the Military Chamber of the Supreme Court (TS), which is “categorical” on the impossibility of using the result of an interception of telephone communications agreed in a previous criminal proceeding for the investigation of a disciplinary offense. . Even though its use has been authorized by the head of the Court of Instruction number 15 of Valencia, by vitiating “the root of the disciplinary file in cases in which the news of the possible infraction appears for the first time as a result of the intervention of the communications , giving rise to the initiation of the disciplinary file “.

“In these cases”, the magistrate abounds, “it is not possible to base the sanctioning resolution on hypothetically independent evidence of the intervention of the communications, since the disciplinary file is radically null from its birth”. The sentence considers that this assumption is “almost identical” to the case of the sanction imposed on ‘El Sardina’.

The military judge alludes to “accidental findings”, according to criminal jargon: “If during a lawful intervention there are indications of another crime, only what was found out through such intervention can be used” in a new procedure. Thus, the magistrate concludes, “a wiretapping can in no way be used to investigate an administrative offense.”

The disciplinary file is, therefore, “null and void”, so the sentence, which is not final and against which there is an appeal before the Military Chamber of the Supreme Court, requests the reimbursement of the remuneration agent. that he stopped receiving during the month of suspension of employment and the disappearance of any mention of the annulled sanction in the agent’s military documentation. ‘El Sardina’ thus recovers its position in the ranks.