The Superior Court of Justice of the Canary Islands has upheld the appeal filed by the Public Prosecutor's Office against the order issued in April 2017 by Judge Salvador Alba, which annulled the recording that gave rise to the Unión case and three others that arose from it. "We can say that the recording of the conversation between Mr. (Carlos) Espino and Mr. (Fernando) Becerra does not violate the fundamental right to privacy, unless it was a conversation that affected the intimate core of the person or family of the interlocutors who intervened in it, and such intimacy is not evident from the content of the recording, so there is no violation of the right to privacy," the order, dated December 12, states.
In that conversation, what occurred was the offer of a bribe by Fernando Becerra to the then Minister of Territorial Policy of the Cabildo, Carlos Espino, on behalf of Luis Lleó, in exchange for unblocking the construction of the Costa Roja plot. The day before, Espino had already filed a complaint with the Civil Guard and then recorded the conversation with Becerra in his office at the Cabildo and handed the audio to the agents, also proceeding to expand his first complaint.
While Fernando Becerra has confessed to the facts in this case, Luis Lleó has focused his defense on trying to have the evidence against him annulled, including that recording. And his attempt was welcomed by the controversial judge Salvador Alba, who is currently suspended from his position and awaiting trial for serious crimes in the exercise of his office.
In the resolution that has now been annulled by the TSJC, Alba argued that Espino's recording violated Becerra and Lleó's "expectation of privacy" when offering the bribe. "It is evident that Mr. Fernando Becerra would have behaved very differently if he had known that Mr. Carlos Espino had already gone to the Police premises days before, where they had provided him with a recorder," the order that has now been annulled stated.
Doreste's dissenting vote
The resolution of the Criminal Chamber of the TSJC had the dissenting vote of the president, Antonio Doreste, who disagreed with the criteria of his two colleagues, Margarita Varona and Carla Bellini. Precisely Luis Lleó tried to recuse these two magistrates so that they would not be the ones to resolve this appeal, alleging that they had already had to rule in this procedure, having resolved some of the multiple appeals filed by Lleó himself during the investigation phase. However, his claim was rejected after concluding that there was no reason to remove them from the case.
Against the criteria of the defendant judge Alba and Antonio Doreste, these two magistrates reject Lleó's theses and cite different jurisprudence of the Supreme Court to conclude that a recording should not always be made with judicial authorization, as the accused argued. "It will depend on the recording that is being carried out, since an individual who records another during a conversation that both are having does not require judicial authorization," they state in their order.
Thus, they also argue that that first recording that gave rise to the Unión case does not violate the secrecy of communications, since the law does allow recording a conversation in which one participates and using it later as evidence. In this regard, it emphasizes that that recording made by Espino was "a way of demonstrating the veracity of his statements" when he reported this attempted bribery.
Similarly, it also denies that there was a "violation of domestic privacy," as Lleó argued. "Mr. Becerra goes to an official body, such as the office of a public official," the order points out in this regard, which recalls that the meeting did not take place "in a private home or an office where a private professional activity subject to secrecy or privacy is carried out," but in "the official office of a public servant."
He intended to have the confession of the other defendant annulled
In addition to the Public Prosecutor's Office, Lleó himself also appealed Alba's order, since it only upheld some of his claims. Thus, he intended to have other orders and proceedings of the procedure annulled as well, and even the confession of the other defendant, Fernando Becerra, alleging that it was not given "freely and voluntarily." In this regard, he stated that when he confessed, Becerra did not know all the fronts that he himself has been opening later to annul the orders of entry and search of the homes, the recordings of conversations and telephone calls, and other alleged irregularities that he has been denouncing and that have been rejected in the courts.
On this point, the TSJC order also rejects it outright and emphasizes that "the person who can challenge or retract their statements is the interested party, that is, Mr. Becerra." Thus, it recalls that Fernando Becerra could retract or "inform the investigating judge of his willingness to retract, which has not happened either." And he has not challenged that first recording that Lleó was trying to annul, nor did he even adhere to his claims after learning of Alba's order.
It upholds a part of Lleó's appeal but concludes that there are no other nullities
What the TSJC does uphold is one of the points of Lleó's appeal, which questioned that Alba had left in the hands of the jury the decision on the validity of some of the resolutions issued in the procedure. "It is not up to the Popular Court to decide whether the resolutions issued by a magistrate or a lawyer of the administration of justice are valid and constitute, consequently, evidence to then decide whether they consider this evidence reliable or not," the order states, which recalls that this must be done by "a professional judge."
Precisely for this reason, the law provides that when there is going to be a jury, the preliminary issues are resolved before the start of the trial, which is the phase in which the case is currently. "It is up to this Criminal Chamber of the TSJC to resolve the nullity," the order states, which goes on to analyze other alleged nullities invoked by Lleó and ends up also rejecting them.
Specifically, Lleó intended to have resolutions and orders issued when the first investigating judge, César Romero Pamparacuatro, and the lawyer of the administration of justice, were on vacation or leave, annulled as well. However, the magistrates recall that this was already resolved in another case, when Luis Lleó himself and the controversial Association of Jurists Jiménez de Asúa filed a complaint against Pamparacuatro for these facts.
"This chamber understood that competence was not lost due to being absent from the workplace," the order states in this regard, which emphasizes that the magistrate "continued to have jurisdiction." Furthermore, it insists that the fact that he did not leave these proceedings in the hands of the substitute judge was justified by "the need to safeguard the investigation of the procedure from more than possible leaks." "No guarantee, consequently, has been violated," it concludes.
An "inadmissible" expert opinion provided by Lleó
In addition, the order also rejects an expert opinion provided by the defense of Luis Lleó, calling it "inadmissible." In this regard, it recalls that expert opinions are used to illustrate the judge or the court on knowledge "that is not directly required of them or is complex given the specialty."
However, in this case the opinion dealt with legal issues. "It is not the case that the judge or court needs the party to provide a document in which opinions of a third person are contained, who, with all our respect to the professor in question, has to illustrate this chamber on legal knowledge that it does not need," the magistrates warn.
