The Provincial Court of Las Palmas has rejected the recusal of the investigating judge of the Unión case, Silvia Muñoz, and has also imposed a fine of 1,000 euros on the Association of Jurists Jiménez de Asúa, which tried to have the magistrate removed from the case. The Court considers that the association acted in "bad faith" and also imposes on it the payment of the costs generated by this recusal incident.
The order, issued on May 18, makes it clear that there is no reason to question Muñoz's impartiality in this case. In the opinion of the Court, some of the arguments put forward by Jiménez de Asúa would be "like saying that the instructor loses her impartiality simply for doing her job".
The attempt to recuse the judge was the first step taken by the association when it managed to enter as a popular accusation in one of the parts of the Unión case. The group, which was not even formally registered when it tried to enter all the parts of the case, saw its claim rejected by the magistrate. Finally, the Sixth Section of the Court admitted that they appeared only in one of the parts, which was the only one in which the investigation was still open at that time. And the first thing they did then was to try to remove the judge, with a recusal letter signed by the lawyer Juan David García Pazos, who is the same one who has tried to appear with different associations in other corruption cases open on the island, such as the Stratvs case. In addition, García Pazos also acted as defense lawyer for one of the main defendants in Unión, Luis Lleó, at least during a hearing held in this case.
"The only purpose" was to "delay the processing" of the case
In its order, the Second Section of the Court points out that the "bad faith" on the part of the association is "clear" and "sufficiently serious" to impose a fine "somewhat higher than the legally established minimum". According to the court, "not only has a recusal been filed that lacks the slightest foundation, but also, the grounds invoked have not even been properly developed in some cases".
It even adds that "the only purpose of this incident has been to try to remove the instructor in order to delay its processing". In this regard, the Court adds that this "delay" is already "achieved with the mere fact of filing the recusal without grounds". And it is that until the recusal is resolved, the judge must withdraw from the procedure, which is in the hands of a substitute judge. "It is clear that any new judge who accesses the case will need time to study it, in order to decide any incident", stresses the Court, which recalls that only this piece, focused on the period of government in Arrecife of María Isabel Déniz, has more than 60,000 pages.
Now, after this order, Silvia Muñoz will be able to resume the procedure, which is currently pending the presentation of the indictment by the anti-corruption prosecutor Luis del Río. It should be recalled that the judge already concluded the investigation of this piece last March, when she issued the order ordering to follow the procedure of abbreviated procedure.
"If he really wanted to intervene, he has had no less than eight years"
It was precisely the issuing of that order that was the main reason that the Jiménez de Asúa association used to request the recusal of the judge. "We understand that it was to make it impossible for us to request investigative proceedings and participate in the investigation", stated the recusal letter, which questioned that the investigation had been closed coinciding with their appearance in the case. However, the Court responds that it is "materially impossible for the judge to have acted with the purpose of preventing the recusing party from participating in the investigation".
"In the first place, because if he really wanted to intervene in it, the popular accusation has had no less than almost eight years to build and appear", especially when this case has been publicly known since 2009, and "has had an attention, by the media, almost unparalleled in this autonomous community", says the Court. And "secondly", he adds that if the order by which his appearance is admitted is dated March 9, 2016, there is not enough material time for more than 60,000 pages to be examined and an order of more than 46 pages to be issued before March 21 of that year" by the investigating judge.
In this regard, he stresses that issuing that order putting an end to the investigation is not only the "function" of the magistrate, but also "the duty imposed on her" by the Law, which "does not allow her to wait or delay that decision, beyond the time she needs to examine no less than 103 volumes and more than 60,000 pages and agree on what is appropriate regarding the course of action". In addition, he warns that delaying the issuing of that order and therefore the investigation would allow the defendants' defenses to later allege undue delays, which in case of conviction involve reductions in the penalties imposed.
On this point, the Court adds that "if the party considered that the investigation should not conclude after almost eight years", "it had at its disposal the legally established system of appeals" and could have challenged that order, instead of opting to recuse the judge. In any case, the Provincial Court points out its doubts about the temporary claims of the Jiménez de Asúa association: "We also do not know very well how much time the association understood was reasonable to wait to issue the aforementioned order after taking cognizance of such a voluminous case".
They consider that the judge is "hostile" to the association
Among the reasons for recusal raised (all of them "lacking any foundation" according to the Court), they included the existence of a "manifest animosity" and a "hostile attitude" of the magistrate towards the association. And to support it, they referred to the order with which she rejected their appearance in this piece, and which is the only one that was revoked by the Provincial Court.
In this regard, the Sixth Section points out that "the considerations" made by the judge in that order "can be shared or not, but are widely explained and supported even by the Public Prosecutor". In fact, it recalls that the First Section of the Court itself, which was the one that revoked that order, described it as "sensible, worked and well argued". Thus, it reiterates that there is not the slightest indication of partiality on the part of the judge. "The only relationship is to have intervened in the process of appearance of the recuser, requiring her to correct the defects that she appreciated in it and denying them said appearance based on a legal argument that, as happens in other cases, has not been shared by the Court of Appeal, which gave rise to the estimation of the appeal", he insists.
In addition, he stresses that the association has not explained what is the alleged "interest" of the judge in this procedure to request her recusal. "We still do not know what advantage or benefit this procedure provides to the magistrate or to any of her relatives, or what burden or damage it avoids and much less what interest she may have or not have in the appearance of an accusation, one more, in this case", he points out, referring to the existence of another popular accusation (Urban Transparency) appearing for years in Unión.
"The circumstances that, according to the party, prove the aforementioned animosity, neither evidence it nor allow to sustain, even with a minimum consistency, the claim raised", concludes the Court, which stresses that the "behavior" of the judge in this case, "if it evidences something, is just the opposite of what is affirmed by the recusing party".
