On April 9, 2024, the «Manos Limpias» Union filed a complaint against Begoña Gómez, wife of Pedro Sánchez, President of the Government of Spain, for what it understood to be the alleged commission of a crime of influence peddling, foreseen and punished in art. 429 of the Penal Code.
Its knowledge corresponded to the Investigating Court No. 41 of Madrid, which, according to information appearing in the press, admitted the complaint for processing and immediately declared the summary secret.
It is convenient to make a prior clarification: by application of the provisions of art. 301 of the Criminal Procedure Law (LECr), and in general, the proceedings of the summary will be reserved and will not be public until the oral trial is opened. This means that only public officials and employees and professionals assigned to the case may have access to them. For the population in general, however, and until a more advanced phase of the criminal process arrives, the actions will remain reserved.
On the other hand, when a Judge decrees the secrecy of the summary (which may be total or partial) the actions are forbidden, even for the parties involved. This, by application of the provisions of art. 302 LECr, and provided that the provisions contained in said precept are met. As it is not the object of this article, if you want to know more about this aspect you can go to this other: Secrecy of summary, published in my legal blog on May 1, 2024.
The first known irregularity of the process arrives there: the complaint was published and disseminated by social networks. And not in an advanced state of the investigation; the information was revealed even before it was notified to the person denounced. It should be noted that it was not an official press release, which distributed some data about the case, no: the full text of the complaint was published, with the only censorship (logical, on the other hand) of the personal data of the complainant.
But, once read, what legal analysis could be made of the complaint filed by “Manos Limpias”?
Let's start from what is stated in the Criminal Procedure Law in this regard:
- Art. 259 LECr, first paragraph:
“Anyone who witnesses the perpetration of any public crime is obliged to immediately inform the investigating, peace, regional or municipal judge or fiscal official nearest to the place where he is located (…)”
- Art. 262 LECr:
“Those who, by reason of their positions, professions or trades, have knowledge of any public crime, will be obliged to immediately report it to the Public Prosecutor's Office, the competent Court, the investigating Judge and, failing that, to the municipal or police officer nearest to the place if it is a flagrant crime”
The difference between both precepts is clear. In the first, any person reports, with the only condition that they must have “witnessed” the commission of the crime.
On the other hand, the second case no longer requires having “witnessed” the crime; it would be enough to “have knowledge” of it. This complaint could no longer be filed by you or me in relation to any fact of which we have knowledge: only those who “by reason of their positions, professions or trade” had knowledge of those facts are entitled to file it.
Arrived at this point we could ask ourselves: “In what condition does the complainant (“Manos Limpias”) act? ¿”Did he witness” the facts?, ¿did he have knowledge of them “by reason of his position, profession or trade”? Let's let it hover as a rhetorical question, and let everyone bring the answer to earth as they see fit.
That said, we must remember that Royal Decree-Law 6/2023, of December 19, which came into force on March 20, reforms arts. 265 and 266 LECr and incorporates new requirements for the presentation of complaints. The legal requirement regarding its content would be as follows:
a) Identification of the complainant
b) Detailed narration of the facts.
c) In the case of legal persons or entities without legal personality, the natural person who presents the complaint on their behalf must be identified, indicating their connection with them.
d) That the person denounced be identified, in case they were known.
e) If possible, that the persons who witnessed the events (eyewitnesses) and who had information about the commission of the crime be identified.
f) That the existence of any source of knowledge that the complainant has knowledge of and that may serve to clarify the facts be indicated.
Based on that, let's start analyzing the complaint filed by “Manos Limpias” against Begoña Gómez.
Being flexible (and it would have to be) we could conclude that the identification of the complainant, although it seems incomplete, at least it may be sufficient. We say this because the full name, ID and address of the natural person who claims to represent Manos Limpias are included, but not –at least, in the text of the complaint– any data of the union itself. However, given that the data of the complainant are recorded, he could be required to provide the data and documents that complete the identification of the Union he claims to represent and, in addition, to documentarily prove his relationship.
The identification of the person denounced also does not offer a problem. Although the complainant expresses only his first name and first surname, obviously in this specific case that would not pose any real impediment to his identification.
The requirement of the “detailed narration of the facts” is more complex. Note that the rule not only requires “narrating” the facts; it also imposes indicating the circumstances in which they would have occurred.
In this sense, the complaint is extremely brief. Even, if we compare it with the average detailed narration that any person can usually expose when reporting any fact to the authority or to any of its agents. Not to mention if the object of the complaint is a crime with the nature of the one denounced in this case.
The complainant exposes the detailed account of the facts in 8 points. All of them occupy a single page: 18 lines. I already know that they seem few to complete a page, but the line spacing is generous.
In my opinion -which may perhaps have a subjective component at this point but which is no less professional- when the legislator refers to a “detailed account” he is not precisely referring to the fact that the facts of the complaint are presented as mere press headlines.
Regarding the requirement of “source of knowledge that the complainant has knowledge of and that may serve to clarify the facts”, Manos Limpias states, literally, the following:
“(…) several digital and paper newspapers and later in television talk shows have been denouncing facts that have alleged characteristics of the crime of influence peddling by the denounced, Begoña Gómez, wife of the President of the Government of Spain”.
Immediately afterwards, it lists several of these media and states that it provides attached documentation in this regard. The media cited by the complainant are El Confidencial, Voz Populi, Libertad Digital and The Objetive.
It should be added that in the section relating to these “sources of knowledge” the complainant adds two small sections, apparently of his own writing, which can actually be considered an extension of the facts denounced. Again, very briefly. The sum of both does not reach the length of a page: it remains at 13 lines.
As happens in the text of the complaint itself, the most striking thing is left for the end.
The complainant requests the “testimonial” statement of Begoña Gómez and of the “responsible parties” of the digital media that published the “noticia criminis” (sic).
Regarding this double request, two considerations:
1) As you undoubtedly know, the witness is an external person different from the procedural parties, who may be called to the litigation to testify about facts about which they have had knowledge.
It is not the object of this article to analyze the obviously different legal status that the witness (a third party, who has an obligation to tell the truth under penalty of perjury) and the person under investigation (party to the process, who has the right not to testify, not to testify against himself, …) may have in a criminal process.
Suffice it now to point out the evidence that a person under investigation in a criminal case may not testify in any case, in addition, as a witness.
2) The rule obliges (and logic suggests) that if the complainant wants to offer any testimonial statement, he must identify the witnesses.
In this case, the complainant requests the statement of the “responsible parties” of the digital media that published the news. Regarding this:
- It does not identify the responsible parties nor does it lay the foundations for their identification, since it would remain in the air who “the responsible parties” are: ¿the owners of each medium?, ¿their administrators?, ¿each Head of editing?, …
- Without mentioning, in addition, that the witness must have “presential” knowledge of the facts, with the exception of the “referential” witnesses and with the specialities that would affect the latter.
- Their citation, in any case, seems useless (let it be said in legal procedural terms, referring to the nature of each test that, to be admitted, must be “useful” and pertinent).
And it would be useless, because: a) None of them would have been an eyewitness to the facts and, b) They are obliged to preserve the secrecy of their sources, so they may not testify about the “origin” of the news.
In short, and I now introduce a subjective bias, the complaint presents several formal defects but, above all -and especially with regard to the detailed account of the facts, the source of knowledge they have expressed and the investigation proceedings cited- it lacks legal rigor.
So, … ¿why has it been admitted for processing?
For this it would also be necessary to analyze the Admission Order, whose knowledge is currently under summary secrecy (for the parties) and which, when lifted, will continue to be reserved (for the public in general).
Unless said Order can be published in the future (a practice as censurable as the original publication of the complaint), for the moment it will be necessary to limit oneself to speculating.
Octavio Topham Camejo
Lawyer number 166 of the Iltre. Bar Association of Lanzarote
http://www.octaviotophamabogado.es
