Tuesday, March 21

The Cursach case stumbles with the doctrine of the fruit of the poisoned tree

On December 11, 2018, at the height of the investigations that five months earlier had been launched to find out who had leaked a declared secret report on the financial situation of the business group headed by the night magnate Bartolomé Cursach, agents of The National Police appeared at the offices of Europa Press de Baleares and Diario de Mallorca. The investigators seized the mobile phones and the computer equipment of the journalists who were in charge of covering the information related to the alleged police network hatched around the Majorcan businessman, under the magnifying glass of former judge Manuel Penalva and former prosecutor Miguel Ángel Subirán.

The Constitutional allows several journalists to appeal the order of the judge in the Cursach case to seize their phones

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The police action unleashed a wave of indignation from a large part of the journalistic profession and marked the final stretch of the judicial career of the judge who agreed to the interventions, Miquel Florit. But it also gave rise to the genesis of several judicial fronts, among them the one that would bring the magistrate himself to the bench, accused of crimes of prevarication, illegal interception of telecommunications, against the right to professional secrecy and against the inviolability of the domicile of those who finally he was acquitted. The 47-page sentence recognized that the instructor had acted unfairly, but determined that his conduct had not been intentional, but reckless. According to his colleagues, he acted relying on the judgment and experience of the anti-corruption prosecutor, Juan Carrau, who had previously endorsed the confiscation of the phones.

The result of that resolution did not prevent the information professionals and the news agency itself from taking to the Constitutional Court the decision of the judge and the Provincial Court of the Balearic Islands to reject their appearance in the case in which their phones had been tapped , which is why they could not appeal the magistrate’s order to seize their work equipment. Now, the Constitutional Court has given them the reason when considering that their right to effective judicial protection was violated, preventing them from making use of the “legitimate defense of their professional interests”, and raises a question about what course the judicial procedure will follow. , within the framework of which the former judge Penalva ended up – and continues – being prosecuted as a result of the alleged irregularities that he would have displayed when investigating the considered king of the Mallorcan night.

The investigation began in July 2018 at the request of Cursach’s lawyers and his number two, Bartolomé Sbert. In two complaints they demanded that the disclosure of actions that were under summary secrecy be investigated, including the dissemination, a month earlier, of a report by the National Police Money Laundering inspectors. A report that had not yet been notified to the parties and that accused the Cursach Group of defrauding more than 60 million euros to the Treasury and Social Security. This document on alleged tax crime would end up finally refuted by the Tax Agency.

The investigations for alleged disclosure of secrets – which also included the alleged leak of proceedings that had not yet been carried out – became one of the pillars on which the investigations against the former investigators of the Cursach case would pivot for alleged criminal practices when they were found in front of the macrocause. Among the suspects were the former judge Manuel Penalva –currently on the verge of the bench as a result of the leaks themselves–, the former anti-corruption prosecutor Miguel Ángel Subirán –whose indictment was provisionally filed after alleging post-traumatic stress, which, he assures, would prevent them from facing their right to defense with guarantees–, and four policemen from the Money Laundering group who worked side by side with both jurists.

Focused fully on finding out where the information published in the press came from, Judge Florit entrusted the National Police with the investigation into these alleged illicit practices and, as a result of such inquiries –among which there was the testimony of several money laundering agents– , indications surfaced that documents, witness statements and reports had been leaked on at least twenty occasions, an accusatory display that finally led the magistrate to order the arrest of the chief inspector of the investigated police group and an agent of the same group.

And therein lies the crux of everything that came later: one of the arrested policemen handed over his mobile phone and authorized that both this device and his computer could be intervened and analyzed by investigators. The study of the content revealed the existence of the WhatsApp group ‘Operation Sancus’, a chat that the former investigators of the Cursach case kept open in parallel to the investigations they carried out and the cornerstone of all the investigations carried out so far against everyone they.

And it is that, as the Anti-Corruption Prosecutor’s Office, the National Police and about thirty private accusations currently maintain, the conversations found would reveal the allegedly coordinated action that the judge, prosecutor and police carried out to, supposedly, pressure witnesses, carry out illegal arrests and deliberately lengthen the imprisonment of several people investigated in the Cursach case with the aim of propping up their accusations. The discovery of such practices led Judge Florit to expand his investigations, limited until then to the leaks, to new crimes, including those of belonging to a criminal group, illegal detention, alteration of evidence, coercion and inducement to false testimony.

Annulment petitions begin

Given the turn that the investigations took, both Penalva and Subirán unsuccessfully began to claim the nullity of the investigations against them by alleging the location of the WhatsApp chat had occurred through a procedural violation and that, for access to the mobile phone to be considered valid of the arrested policeman, it was essential that a judicial resolution had endorsed it. In response, the Madrid anti-corruption prosecutors Fernando Bermejo and Tomás Herranz, who appeared in the case, pointed out that judicial authorization is not necessary when it is the person under investigation who authorizes access, so they considered that the discovery of the chat should be admitted as evidence. valid. In their brief, the prosecutors come to harshly recriminate that Penalva and Subirán tried to pass off demonstrations “contrary to reality” as “incontrovertible facts” or that they cited jurisprudence that the defense of both “or has not read” or “trusts that they did not we are going to read the rest of the parts and the instructor or, if necessary, the prosecuting body”.

Similarly, the Superior Court of Justice of the Balearic Islands (TSJIB), in several of its resolutions, made it clear that the police officer had “expressly renounced the preservation of his privacy” every time the dump of the information on his telephone It had been carried out in the presence of the police officer’s lawyer and before the Justice Administration’s lawyer, which would guarantee the validity of the procedure.

The judge and the prosecutor also maintained that one could not speak of a ‘casual discovery’ – those related, according to criminal doctrine, to the unforeseen and fortuitous discovery of evidentiary material in the course of investigations – of the WhatsApp chat since the entrance to the It meant accessing other people’s conversations and both Penalva and Subirán should have been present at the content dump. Faced with this, the court relied on the jurisprudence of the Supreme Court to state that casual discoveries that can help clarify novel facts and that had remained hidden until then should be investigated whenever the judicial authority weighs their importance and justifies their proportionality. . Something that, the magistrates pointed out, was done in this case.

Doctrine of the fruit of the poisonous tree

Now, after the Constitutional ruling on the violation of the rights of the journalists who covered the Cursach case, the former judge Penalva -who was recused and removed from the case in March 2018 for apparent lack of impartiality- has reopened the sidewalk of possible nullity. In a recent letter, the former magistrate alleges that the accusations for which he is at the gates of the trial are based on “illegal actions” and “radically null”, a kind of reference to what is known as the ‘doctrine of the fruit of the poisoned tree’ ‘ by virtue of which all illicitly obtained evidence must be invalidated, and with it, if necessary, the rest of the related evidence. And it is that, in the opinion of the former jurist, the confiscation of the mobile devices led to promoting a macro-investigation against the former Cursach researchers based on the data obtained from those “invasive and illegal” measures, for which he demands that the actions be rolled back at the moment prior to the seizure of the telephones or, directly, the file of the investigations is dictated.

The defendant assures in his brief that, based on the information obtained in the list of calls from the telephone of one of the journalists, the arrested policemen were required to hand over their devices and access to them. And he adds that the delivery and access is, “certainly anything but voluntary.”

The accusations made in this judicial proceeding assert, however, that no data from the contents of the journalists’ mobile devices was used, nor did the seizure of the phones lead to the expansion of the investigations against Penalva and Subirán. They point out that the hypothetical line of investigation that would have been followed as a result of the confiscation was inevitably exhausted when the judge who had ordered the intervention of the mobiles agreed, two weeks later, to return them to their owners.

Beyond what has been stated by some and by others, the TSJIB -or an Investigating Judge in the event that the investigations against Penalva, who is no longer authorized, return to a Court of this level- must study the appeal of the informants – thus proceeding “in respectful terms with the fundamental right violated”, in the words of the Constitutional Court- and analyze whether the orders with which former judge Florit claimed the call lists and the seizure of the journalists’ mobile phones should be annulled. From there -and if the challenges are upheld-, it would be left to the interpretation of the judge or court if this should lead to the nullity of all the actions taken against the former investigators of the Cursach case.

At the moment, both Penalva and the four money laundering police officers are waiting to find out if they should go to trial for the alleged leaks they made or sit on the bench -as requested by the Madrid prosecutors and the private accusations- for the crimes more serious by those who were investigated. In the same way, the accusations claim that the former prosecutor Subirán should also be tried, as it is understood that he is capable of defending himself and remembering the events in which he could have participated.

In parallel, the macro-trial against Cursach and 22 other defendants is scheduled to start on June 13, most of them local managers and police officers from Palma who were allegedly entertained with sexual services, drinks and narcotics in exchange for sponsoring the good progress of the businesses of the Cursach group and punishing its competition. The Prosecutor’s Office claims for all of them sentences that add up to more than 100 years in prison. As in the case of Penalva, the defendants in this proceeding appeal for the annulment of this case by defending that, through the allegedly illegal practices deployed by those who investigated them, they saw their fundamental rights destroyed and, by relying on allegedly untrue testimonies, they would be invalidated. actions taken against them.