"The one who knew nothing about the recording or what Mr. Espino was looking for, didn't even have any idea of having been denounced by him, was Mr. Fernando Becerra, who made spontaneous statements, protected by his reasonable expectation of privacy." This is one of the arguments used by Judge Salvador Alba to annul the first recording of the alleged bribery attempt to the then councilor Carlos Espino by Luis Lleó, using Becerra as an intermediary. A recording that was made when the proceedings of the Unión case had not yet been opened in the Courts.
"It is evident that Mr. Fernando Becerra would have behaved very differently in his statements if he had even known that Mr. Carlos Espino had already gone to the Police facilities days before, where they had provided him with a recorder with which to immortalize the meeting," insists the order, which considers that Becerra's right to "privacy" was violated by recording him offering that bribe.
To this argument raised by Lleó's defense and accepted by Judge Salvador Alba – who in turn was the subject of a recording for which he is charged in a case opened by the TSJC-, the Prosecutor's Office had responded at the time that the commission of a crime is not an "intimate" act. In addition, he added that the one who alleged that alleged violation of the right to privacy was not the affected party, Fernando Becerra – who has confessed to the facts – but the other defendant, Luis Lleó, who did not intervene in that conversation. However, Judge Alba also considers Lleó's privacy violated.
"Mr. Luis Lleó's fundamental rights have been affected"
"Although it is intended to give validity to said document with the recognition of facts made by Mr. Fernando Becerra, when the name of the accused Mr. Luis Lleó appears in said recording, his fundamental rights have been affected by said recording," the order states, which adds that "if Fernando Becerra had a reasonable expectation of privacy, what a third party who does not even attend the meeting cannot do is think that it is going to be recorded, that his name is going to come to light, and this due to the statements of Mr. Carlos Espino or Mr. Fernando Becerra, without further indication of his involvement than the recording itself."
In addition, he questions the fact that the meeting took place in the complainant's office and not "in a public place", since Becerra attended the meeting "sure of the privacy provided by said environment and with a reasonable expectation of privacy, which was frustrated by the already planned recording of that conversation." To this, although he admits that a court order is not necessary for someone to record a conversation in which he intervenes, he adds the fact that it was the UCO of the Civil Guard who provided the recorder to the complainant, pointing out that this implies that it was a "pre-ordered" recording and therefore invalid for not having previously required authorization from a judge. A different criterion than the one defended in the hearing to resolve these prior issues the Prosecutor's Office, which has already announced that it will appeal Alba's order.
Along with that first recording, the order also annuls those that arose directly from it, in which other meetings with the complainant are recorded. "Without a doubt, an expectation of privacy had been generated in the recorded person," insists Judge Alba, who also accepts Lleó's thesis by questioning that the recorder with which those conversations were recorded was not provided to the procedure.
Lleó's defense "has raised doubt in this magistrate"
However, contrary to what the accused also claimed, the order does not annul the telephone conversations subsequently authorized by the investigating judge when the judicial proceedings were opened for this complaint. "The telephone intervention orders originate from the complaint/appearance of Mr. Carlos Espino, not from the specific recording," he points out in this regard, thus endorsing what was raised on this point by the Public Prosecutor's Office.
However, Judge Alba points out that the accused's arguments about the validity of the transcription of those telephone conversations have made "doubt arise in this magistrate." For this reason, the order orders that the CDs and DVDs be compared with the original content of the conversations that is recorded in the Sitel system. This had been requested by the Prosecutor's Office, in case the private expert reports provided by Lleó were admitted, and which radically contrast with the official expert reports that appear in the case, and which confirm that there was no manipulation of those conversations.
What Judge Alba flatly rejects is another of the arguments raised by Luis Lleó and supported by the alleged popular accusation in this case, represented by the Jiménez de Asúa Association of Jurists. Both Lleó and this controversial association have filed lawsuits against the first investigating judge of Unión and against the secretary, alleging that they signed resolutions when they were on vacation or on leave. And although the lawsuits were not even admitted for processing, in the hearing on preliminary issues – in which the Prosecutor's Office considers that the alleged popular accusation "took off its mask" – they insisted on this same thing to request that those orders be annulled.
"A judge does not lose his jurisdiction for being on vacation"
"A judge does not lose his status as such, and therefore his jurisdiction, due to the fact that he is on leave, since not in vain, our Organic Law of the Judiciary currently regulates a permit for the study of cases of special complexity. Thus, the fact that the magistrate is on leave does not prevent him from issuing a resolution, since nothing prevents him from going to the Court and issuing it. The fact that there is a legal substitute is for those actions in which the presiding magistrate cannot intervene, but not because he has temporarily lost his jurisdiction," the order states, which describes it as "irrelevant" that "the judge was or was not in the Court" when he issued those resolutions.
However, he considers that "a different matter" is the case of the judicial secretary. "We can understand that an investigating judge in a case as complex as the so-called Caso Unión does not allow himself to be replaced by any other judge in resolutions such as a telephone intervention that requires the weighing of the circumstances and criminal indications, and a reasoned resolution that requires knowing the content of the case. What we cannot understand is that a public notary who limited himself to attesting to the dictation of several judicial resolutions is not replaced by the one who is actually in the Court at the time of the dictation of such resolutions," he adds.
Thus, although he clarifies that "we are not talking about falsehood, nor about the commission of any criminal act", as raised by Lleó's defense and the alleged popular accusation, he considers that the judicial secretary should have been replaced by another during his vacation. In addition, the same order that speaks of the possibility that "specialists from the Civil Guard or the Police" manipulate recordings, by questioning their validity, then describes as "inadmissible from any point of view" that the investigating judge feared "possible leaks if another judicial authority intervened in the procedure, because that would be equivalent to presuming any action that is at least irregular in other judges of the judicial district of Lanzarote."
In any case, he concludes that those orders should not be annulled since "for this it would be necessary that it has been proven not only the granting of the permits, or the enjoyment of them, but that both authorities, judge and secretary, were not the people who signed such documents." In this regard, as he does with other allegations raised by Lleó, he concludes that this can also be resolved in the trial, "because without a doubt it can be submitted in the object of the verdict to the Jury Court, if these resolutions were not issued in their day by those who appear in them."