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A reversal of justice

Two years after the Gürtel case broke, the investigating judge and the PP whistleblower are to appear in court before any of the corruption network

Two years after a former Popular Party (PP) councilor in the Madrid suburb of Majadahonda lifted the lid on a massive corruption scheme linked to the party of Mariano Rajoy and José María Aznar, the only proceedings that have so far been opened are against those that brought the case to light and those that investigated it.

The perpetrators of the pillage, businessmen and politicians, are still awaiting their fates as the courts attempt to unravel a ream of appeals that have slowed the investigation to the extent that it is now almost unviable.

Supreme Court Judge Alberto Jorge Barreiro on Monday opened an oral hearing against High Court investigative Judge Baltasar Garzón for the crime of corruption for ordering conversations between leaders of the so-called Gürtel network in custody and their lawyers to be taped, knowing that he was not authorized to do so. Garzón's verdict is not unanimous within judicial circles. Far from it, in fact.

The judge who has been conducting the case for two years in Madrid and who supported the use of wiretaps in the investigation, Antonio Pedreira, understands that it is possible to order surveillance in prison even in cases not related to terrorism. "The profession of law is worthy but it cannot enjoy discriminatory privileges in relation to other professions. In the same way as just cause exists to enter and search professional offices, the same can be applied to the interception of communications," he says.

The Supreme Court of Justice in Madrid ruled the taped conversations inadmissible. José Manuel Saúrez Robledano, one of the magistrates involved in the decision, supported the interception of the communications between lawyer and client: "Let us imagine that an inmate in preventive custody arranges for his lawyer to transmit - and this is never the defense's right but another entirely different matter - instructions to kill someone or make the body of someone murdered disappear or to launder money deriving from drug trafficking, illegal prostitution or influence peddling. The absolute immunity given in such cases to confidentiality in the visiting room would impede the prevention and investigation of crimes against human life and others considered in the same category of graveness under the penal code."

Despite the arguments of Pedreira and Robledano, Supreme Court Judge Alberto Jorge Barreiro believes that Garzón carried out the recordings knowing the law did not allow for it. "With the aim of obtaining relevant information without the security of being able to do so via legal methods, the accused magistrate decided to avail himself of the confidential conversations."

Those that have denounced Garzón for the tapes are working to have the charge of corruption against the defendants thrown out and the investigation annulled. However, before the judicial order to listen in on the defense, Garzón had spent six months collating evidence of bribery, influence peddling, money laundering and misappropriation of public funds in PP-governed Madrid, Valencia, Castilla y León and Galicia.

Garzón is the second person without links to Gürtel to be called to appear in court. Ángel Luna, Socialist Party spokesman in Valencia, was absolved yesterday after having faced charges for presenting sub judice police report on corruption in Congress, even though it was published in the media five months beforehand.

Wiretaps before historical memory?

The opening of oral proceedings by Alberto Jorge Barreiro has been carried out with the same haste as when in May, 2010 the first case against Baltasar Garzón for his investigation into Franco-era crimes was brought in a marathon session during which Luciano Varela passed seven resolutions in a single morning.

On Monday, Barreiro passed just one pre-trial order in which he denied the umpteenth appeal requested by his defense: the incorporation into the proceedings of the Madrid Supreme Court's decision to re-charge two lawyers in the Gürtel case.

Judicial sources have called into question the impartiality of Barreiro, who has not waited for the Criminal Court to rule on two or three appeal applications against the refusal of evidence and the fast-tracking of the case, both of which are pending. The latter, if upheld, would put paid to a good deal of Barreiro's maneuvering. Hence, without even the tacit blessing of the Criminal Court, there is little logic in Barreiro's haste in a process that has been ongoing for a year and a half and that the judge left untouched in the first few months.

Except in the instance, as it now appears, that Garzón is to be tried for the wiretaps before he is brought to court for his investigations into Franco-era crimes. The latter case has been paralyzed since December 16, when Garzón recused five of the seven magistrates who were to try the case. Four months later, the courts have not been able to rule on these recusals, which seem to have been set to one side until the legal battle waged on behalf of Sortu and Bildu to stand in local elections in the Basque Country in May has been resolved.

In that case, the recusals will not be attended to until May, when a year will have elapsed since the opening of the first oral hearing against Garzón. In the meantime, the courts could have resolved the appeals pending in the Gürtel wiretaps case and, applying the same doctrine with which the recusals will be ruled upon, try Garzón for the wiretaps before the Franco case.

If Garzón is found guilty over the wiretaps, an outcome the judge himself has forecast, the Supreme Court will be freed from obligation to try him in the Franco case and it will pass to a lesser court. As a result, the social and media impact of being able to be tried for investigating historical memory will also be avoided.

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