The Second Chamber of the Supreme Court has agreed to resume the judicial investigation of nine members and directors of the Catalan Association of Municipalities (ACM) investigated for crimes of embezzlement, fraud and illegal exactions for actions related to the process.
The court upholds the prosecutor's appeal against the dismissal agreed by the Provincial Court of Barcelona on July 8, 2021 and, in line with the Public Prosecutor's Office, considers that the closure was hasty.
The Court of Instruction number 16 of Barcelona opened preliminary proceedings and admitted to process a complaint by the Prosecutor's Office against these nine people -David Saldoni, Marc Pifarré, Jaume Valls, Elisabet Ruiz, Albert Guilera, Mireia Huerta, Josep Montané, Josep Recadero Vidiella and Ramón Llastarry- for allegedly diverting funds from the ACM since 2015 for purposes unrelated to the Association, supposedly to create structures that would allow the independence referendum to be held and carry out other activities related to the process. Among other procedures, the judge agreed to entries and searches, as well as the seizure of electronic devices and the secrecy of the proceedings.
In July 2021, the Provincial Court of Barcelona agreed to dismiss the case, considering the appeals filed by those investigated against various orders from the examining magistrate on the grounds that fundamental rights such as defense and privacy had been violated. The prosecutor rejected the violation of rights and appealed in cassation to close the case, considering that this decision had been taken in advance, untimely and inappropriate.
In its sentence, a presentation by magistrate Juan Ramón Berdugo, the Chamber agrees with the Public Ministry that the dismissal agreed by the Provincial Court of Barcelona was precipitated. The Chamber endorses the order of entries and searches and specifies that this resolution detailed the facts investigated, the people affected and the possible crimes that were being investigated.
Regarding the secrecy of the proceedings, the sentence explains that it is true that several people who were clearly identified and to whom the commission of various crimes was attributed from the outset, were being investigated uninterruptedly, for a year. , "but it is also true that in order for the investigation to prosper, it had to be carried out -and not only as we will see, in the pre-trial phase- without the knowledge of the persons investigated, which is justified when, when filing the complaint, the Prosecutor requests the Investigating judge, that the summary secrecy be agreed, a request that was granted.
For the Chamber, "it was necessary to extend the investigation without the knowledge of those investigated, precisely to obtain sufficient incriminating elements for the admission of the complaint, without prejudice to the fact that the investigating judge himself agreed to the secrecy of the proceedings when assessing the the need to continue the investigation behind the defendants' backs to obtain sufficient probative material to prove the facts brought to their attention.”
The court rejects that the fundamental rights of the defendants have been violated and indicates that "when they are called to testify as investigated, they may make all the allegations they consider necessary and appropriate and contradict the documentaries and other evidence already practiced, providing all the documentation that they have and proposing testimonials, expert opinions and other evidence that is related to the facts”
On the other hand, the Supreme Court admits that the control of annulments can be carried out at any time during the process, but adds that the procedural law, based on constitutional doctrine, suggests the oral trial phase as the opportune moment to make allegations in this regard. , by raising preliminary questions, since then the court has "an unbeatable perspective of analysis of the set of actions and therefore allows a more rigorous assessment of the effects and mechanisms of interaction between the different media that make up the table probative".
The court that issued the sentence was made up of judges Manuel Marchena (president), Juan Ramón Berdugo (rapporteur), Ana María Ferrer, Eduardo de Porres and Ángel Luis Hurtado.
